ENCYCLOPEDIA OF For Business Man, Farmers, Mechanics, Landlords, Tenants, Working Men, Capitalists, and all who have Business Transactions of any kind, as well as for LAWYERS AND CONVEYANCERS. REPRESENTING THE STUDY AND DECISIONS OF MOST ABLE LAW- YERS AND SUPREME JUDICIAL AUTHORITIES. FOR ALL THE STATES AND CANADA, WITH NOTES AND AUTHORITIES. BY JHON. HUGrH M. SPALDINO, Author of Spalding's Treatise upon the Law of Personal Property, Practice, etc., for the State of Ohio; Treatise for the State of Indiana ; Treatise for the State of Kentucky; Treatise for the State of Kansas, etc. ; Civil Service of the State of Penn- sylvania ; Judicial and Public Records ; Legal Forms, etc., etc., etc. EDITION. P. W. ZIEGLER & CO., PHILADELPHIA AND CHICAGO. 1899. Copyright 1880 BY P. W. ZlEGLER & Co. Copyright 1895 BY P. W. ZlBGWJR & CO. PREFACE. No species of knowledge is more in demand, or confers more real and constant usefulness than that of the law and its practical application in both the private and public affairs of each individual : and no species of knowledge is more difficult to obtain at the desired moment. There are times and circum- stances when the necessary legal counsel cannot be had ; and times and circumstances which render it advisable to be one's own legal counsellor; there are matters of minor importance which may not justify or require the expense or formality of a legal consultation ; there are private affairs which it may be neither prudent nor desirable to disclose, but which require some legal light for satisfactory solution or adjustment; there are business difficulties, enterprises, ventures, controverted and vexed questions, which constantly demand some knowledge of the law to successfully master, and which are otherwise fruitful of annoy- ance, distress and doubt. These and many other examples demonstrate the utility of a work of this character, a book which enables one to combine practical law with personal knowledge and experience. The primary necessity of convenient reference to legal subject? is demonstrated by the well-known and univer- sal rule of law that " ignorance of law is no excuse ; " every one is presumed to know the law ; hence the defence of ignorance avails nothing : one must suffer for every infraction, and know better afterwards. In this work will be found a very complete law library, compiled with much care, and containing the essence of the various subjects of the law compressed into a comprehen- sive and convenient form, with its value greatly enhanced by foot- notes to leading authorities, to which, when necessary, easy ref- erence in any law library may be had. Forms are given in great profusion and variety ; they have been selected and framed with the utmost care and simplicity, and adapted to the practical and common necessities of actual, every-day use. i H. M. S. AN ENCYCLOPEDIA OF LAW AND FORMS. ABANDONMENT. See DIVORCE; INSURANCE; MARRIAGE; PARENT AND CHILD; RIGHTS ;_ WIFE. ABANDONMENT is confined to an individual's property and legal and equitable rights ; it is a relinquishment on the part of the owner, without regard to its future possession, and with an intention to abandon. 15 When a person, considering an article worth- less, casts it away, with an intention of aban- doning it, he thereby divests himself of his title in it, and has no more cause to complain, if it be taken by another, than if he had never owned it, unless indeed he reclaims it without violating the rights of others, or before they take it. Mere nonuser does not necessarily or usually constitute abandonment ; d there must be an in- tention to abandon ; and such intention is to be determined as a question of fact from all the circumstances attending the owner's acts. f Abandonment combined with a sufficiently long possession by another party destroys the original owner's rights.* Where an abandonment is acted upon in good faith by another, it destroys the owner's rights. Legal rights once vested must be divested according to law. Equitable rights may be abandoned at pleasure. Abatement. See CONTRACTS ; DUTIES ; NUI- SANCE; PLEADING; PRACTICE; TAXES. Abator. See NUISANCE. Abbreviation. See AUTHORITIES. Abduction. See CRIMINAL LAW. Abet. See CRIMINAL LAW. Abeyance. See ADVISEMENT; CONTINGENCY. Abortion. See MEDICAL LAW. Abridgment. See COPYRIGHT. , Abrogations. See STATUTE LAW. Absconding. See CONCEALMENT; DEBTORS; PROCESS. Absence. See CONCEALMENT ; DEATH; DOMICIL. Abstract of Title. See CONVEYANCES. Abuse. See CRIMINAL LAW. a-2 Wash. 106; 5 W. & S. 188; 25 Penn. St. 259. b-M M. & W. 789 ; 9 Met. (Mass.) 789 ; 36 Cal. 333. c ii 111. 588. d-io Pick 310; 23 Id. 141; 3 Strobh. 224; 5 Rich. 405; 16 Barb. 150; 24 Id. 44; Tudor L. Cas. iaa. 130 : i Washb. R. Prop. 83-85. e-M M. & W. 789 ; y Met. (Mass.) 395, 789 ; 36 Cal. 333. f-4 Yeates, 330, ACCEPTANCE. See BILLS OF EXCHANGE ANV> PROMISSORY NOTES, ETC. ; CONTRACTS; INSUKANCB; RENT ; STATUTE OF FRAUDS ; TENDER. ACCEPTANCE is the receipt with an intention to retain it of a thing offered by another. 11 An agreeing to an act or contract of another by some act which binds the person in law. Where a landlord takes rent reserved on a lease made by his predecessor, it is an accept- ance of the terms of the lease and binds the party. As distinguished from assent, acceptance de- notes the receipt of something in compliance with and satisfactory fulfilment of an under- taking to which assent had been previously given. A receipt with an intention to retain is in- dispensable to every acceptance, though a man- ual taking is not necessary. The intention to retain may exist at the time of receipt or after- wards ; and may be indicated by acts, words or otherwise, and will in many instances be im- plied by circumstances. Access. See MEDICAL LAW. Accessary. See CRIMINAL LAW. Accessions. See PROPERTY, ETC. Accessory. See CRIMINAL LAW. Accessory Contract. See CONTRACTS. ACCIDENT. See PRACTICE; REMEDIES. AN ACCIDENT is that which takes place with. out one's expectation or foresight; an event which proceeds from an unknown cause ; or is an unusual effect from a known cause, and therefore not expected. It is the happening of an event without the concurrence of the will of the person by whose agency it was caused, as the burning of a house from kindling a fire for domestic purposes; or the happening of an event without any human agency, as the burn ing of a house by lightning. * It is such an unforeseen act, event, loss, misfortune or 534 ; 5 W. & S. 284 ; 9 Penn. St. 273 ; 30 Cal. 630 ; 36 Id. 333 ; Necessity of intention under Spanish land cases, 12 Mo. 238. |f-6 Cal. 510; ii 111. 588 ; 10 Walts, 102 ; 2 Met. (Mass.) 32; 6 Id. 337; 31 Me. 381; 2 Washb. R. Prop. n-a Parsons' Contr. 221. 1-Fonbl. Eq. ACCIDENT ACCOUNTS. omission as is not the result of any miscon- luct or negligence.* An accident which arises from a cause which operates without the aid or interference of man is called an act of God. k Accidents which are produced by physical causes, such as loss by lightning, and storms, perils of the sea, inundations, earthquakes, sudden death, ill- ness, and the like, are called fortuitous events. 1 That which happens by a cause which can- not be resisted, which neither of the parties has occasioned or can prevent, and unfor- seen events which cannot be prevented, are alike called fortuitous events and inevitable accidents.' Unforeseen circumstances which cannot be guarded against by any human agency, and in which man takes no part, are called casualties or inevitable accidents.i Interposition of human agency, as the inroad of a hostile army which from its nature and power is absolutely uncontrollable, is denomi- nated irresistible force.* 1 Generally, no one is responsible for that which is the result of superior force or inevi- table accident ; but a man may be so where he has stipulated that he would, and also where he has been guilty of fraud or deceit ; for no man may take advantage of his own wrong. Where in the performance of a lawful act, without any intention to do harm, and after using due precaution to prevent danger, a person unfortunately kills another, it is an acci- dent or misadventure for which he cannot be held amenable. Examples of this are : When death ensues: I. From innocent recreations. 2. From moderate and lawful correction in the domestic relation. 3. From acts lawful and innocent in themselves, done with proper and ordinary caution.* An act upon which death ensues must have been neither bad in itself, wrong in its nature, nor a prohibited evil or offence. Accommodation Paper. See BILLS OF EX- CHANGE AND PROMISSORY NOTES, HTC. Accomplice. See CRIMINAL LAW. Accord. See CONTRACTS ; DEBTORS. Acconchment. See MEDICAL LAW ACCOUNTS. See EVIDENCE. ACCOUNTS. AN ACCOUNT is a registry of debts and credits, or charges ; an entry in a book or on paper of things bought or sold, of payments, services, etc., including the names of parties to the transaction, date and price or value of the article. A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts r some fiduciary relation. 1 * A bank account is the statement of the amount deposited and drawn, which is kept in duplicate, one in the depositor's bank book and the other in the books of the bank. J-Francis' Max. 87 ; Story Eq. Jur. ? 78. It-Parsons' Contr. 635; i T. R. 27. I -Story Bail m. 25 ; Lois des Bit. Pt. 2, ch. 2, 3i. m-La Code, Art. 2522, No. 7. n-Lois des Bit. Pt. 2, ch. 2. o-IJict. Juris. l>-See 19 Miss. 572. q-Story Bailm. 240; i Parsons' Contr. 543-547- r-Story Bailm. J 25 ; Lois des Bit. Pt. 2, ch. t,J i. 8-2 Kent Comm. 448 ; Poth; Story Bailm. g 25. t-4 HI. Comm. 182; i East PI. Cr. 221. b-i Met. 216; An open account is one in which some hem of the contract is not settled by the parties, whether the account consist of one item or many. Thus, where five loads of corn were sold at the same time and delivered, and there was no stipulation as to the price, it is an open account. 4 So, also, when there are run- ning or current dealings between the parties which are kept unclosed with the expectation of fresher transactions. 6 If the plaintiff brings two suits on an open account, it is not im- proper to admit on the trial of the second action, testimony of payments that were in evidence on the first trial; but the defend- ant cannot be twice allowed for the same payments/ An account stated is an agreed balance of accounts. An account which has been exam- ined and accepted by the parties.* An original entry of account is the first entry made by a merchant, tradesman, or other per- son in his account books, charging another with merchandise, materials, work or labor, or cash, on a contract made between them. Entries in books of account may be admitted in evidence, when it is made to appear by the oath of the person who made the entries, that such entries are correct, and were made at or near the time of the transaction to which they relate, or upon proof of the handwriting of the person who made the entries, in case of his death or absence from the country.^ The books must have been kept for the purpose, and the entries must have been made contem- poraneous with the delivery of the goods, and by the person whose duty it was, for the time being, to make them.i The charges of an account book should be in such a state that they may be presumed to have been the daily minutes of the business or transactions of the party , k and such book may be considered as the original, though tran- scribed from a slate; the slate containing merely memoranda, not intended to be per- manent. 1 So, also, from memoranda made by a servant. The form of keeping the book is not material," but it must be a registry of the business actually done, and the charges therein must be specific and particular,? and made at or near the time of the transaction to which they related If the party keeps a ledger, or the account book has marks, showing that the items have been transferred to a ledger, the ledger must also be produced, that the other party may have the advantage of an/ items entered therein to his credit. r If an account book appear to be manifestly erased and altered in a material point, the charges will not be admitted, unless the alteration is satisfactorily explained. 1 i Hempst. 114; 32 Penn St. 202. c-i Ala. (N. S.) 62. d-Id. e-6 Id. 438. f-6 Kas. 471. jf-2 Atk. Ch. 251; 27 Miss. 267. J-Greenl. Ev. J 115-118. U-4 Mass. 455. I-i3 Mass. 427; ii Pick. 139; 6 Whart. 189. m-9 Sere. & Rawle, 285. n-i3 Mass. 427 ; 8 Met. 169 : 3 Hal- stead, 68. 0-5 Watts, 258 ; Wright, 219 ; 4 Yeates. 341. p-i Nott & M'Cord, 130. q-G. S. 1868, Ch. 80, { 387. r-a Mass. 569. 8-6 Whan. 106. ACCOUNTS. AN ORIGINAL ENTRY, to be admissible as tvidence, must be made in the proper book. In general, the books in which the first entries are made, belonging to a merchant, tradesman, or mechanic, in which are charged goods sold and delivered, or work and labor done, are re- ceived in evidence. There are many books which are not evidence. A book made up by transcribing entries made on a slate by a journeyman, the transcript being made on the same evening, or sometimes not until nearly two weeks after the work was done, is not a book of original entries. 1 A book purporting to be a book of original entries, containing an entry of the sale of goods when they were ordered, but before they were delivered, is not a book of original entries. 10 And unconnected scraps of paper, containing, as alleged, original entries of sales by an agent, on account of his principal, and appearing on their face to be irregularly kept, are not to be considered as a book of original entries." The entry must be made in the course of business, and with the intention of making a charge for goods sold and work done; they ought not to be made after the lapse of one day. A book in which the charges are made when the goods are ordered is not admissible.? The entry must be made in an intelligible manner, and not in figures or hieroglyphics which are understood by the seller only.' A charge made in gross as " 190 days' work," r or " for medicine and attendance," or " thirteen dollars for medicine and attendance on one of the general's daughters in curing the whooping- cough,"* were rejected. An entry of goods without carrying out any prices proves, at most, only a sale ; and the jury cannot, without other evidence, fix any price.* The charges should be specific, and denote the particular work or ser- vice charged as it arises daily, and the quantity, number, weight, or other distinct designation of the materials or articles sold or furnished, and attach the price and value to each item. 12 The entry must, of course, have been made by a person having authority to make it/ and with a view to charge the party. w The proof of the entry must be made by the person who made it. If made by the seller, he is competent to prove it from the necessity of the case, although he has an interest in the l-i Rawle, 435 ; 4 Id. 408; 2 Watts, 451 ; 4 Id. 258; 5 Id. 432; 6 Whart. 189; 2 Miles, 268. m-4 Rawle, 404. n-i3 Serg. & R. 126; see 2 Whart. 33; 4 M'Cord, 76; 2 Wend. 72; i Yeates, 98; 4 Id. 341. o-i Nott 6 M'Cord, 130; 4 Id. 77; 4 Serg. & R. 5; 9 Id. 285; 8 Watts, 545. p-4 Rawle, 404; 3 Dev. 449. q- 4 Rawle, 404. r-i Nott & M'Cord, 130. 8-2 Const. 476. t-i South. 370. n-2 Const. 745; 2 Bail. 449; i Nott & M'Cord. 130. v-4 Rawle, 404. w-8 Watts, 545. x- 5 Conn. 496; 12 Johns. 461 : i Ball. 239; 4 Kas. 211. y-2 Watts & S. 137. x-i Yeates, 347; Swift Ev. 84; 3 Vt. 463 ; i M'Cord, 481 ; 2 Root, 59 ; i Cooke, 38. a- i Day, 104; i Aik. 73, 74; Kirb. 489. b-i Browne, 257. selves for the all and singu- lar the goods followingdis- burseme n ts and chattels, made out of I rights and and on acc't creditswhich of the estate were of said aforesaid, viz dec'd, agree- No. i Fees for ably to an in- letters of ad- vent'y there- ministration 5 of filed in the 3 Funeral ex. T 2 office in 3 Last sick- amounting to To divid'd 8325 50 4 ness, Attendance 107 received on last sickness 56 stock 760 Cxj Decrease To rent of in sale of T. T. for 5 00 goods, etc. 1073 Etc., etc. Tobal. Bybal. R-B. N. P. I9o. b-4 DalL 434; i Wash. C. C. 435 : ** Vt. 169. c-s Moore, 114, no. d-ip Serg. & R. 241 e-i T. R. 43 ; 8 Taunt. 688. f-i 3 East. 949 ; 5 M. & S. 65. gr-io East. 104. h-AUeyn, 73, 73. i-x T R. 43 ; see 2 Edw. Ch. 993 ; 6 Ired. Eq. 197. As to effect of stipulation by the words " errors excepted " or other, wise, reserving leave to interpose objections in future to an account ; see 9 Cal. 353 ; Hopk. Ch. 330 ; 6 Hair, ft i. 43. j-i Esp. 159 ; i Stark, 151 ; 3 Id. 51 ; Chitty ills. 72, see note o, and cases noted for examination k-6 Esp. 24 ; 13 Mo. $17, Ch. C. 199; see reference ip preceding note. ACCOUNTS. Final (or partial) account of A. R., administrator the estate of D. D., of , deceased. In the matter of the) assignment of I. T., Via the court. merchant. ) Account of A. A., assignee of said insolvent. Said ad- ministrator ? 4 Said ad- mi nistrator charges him- self with the amt. of the inven'ry and appraisem ' t i No. i daims credit as follows : Diff'cebet. sale bill and inven'ry and 17 p Said as- sig'ee ch'rgs hi mself as f o 1 1 ows, to- wit, etc. $ c a Vcher Said as- sig'ee claims :redit as fol- lows, viz., etc. * on file, . . S73i 5 appraisem' t 1231 70 Shares of 2 Desperate stock as fol- claims re- lows (descri- ported, . . 73 60 bing them.) Etc., etc. Promissory notes as fol- lows (descri- bing them.) Cash. Etc., etc. Accounts Onnrdian's. To bal. By bal. See title AFFIDAVITS, post. The account for settlement with the court should be true transcript of the books kept by the guardian, should clearly show the deb ts and credits of the gua dian, and should clearly refer by number or otherwise A. R., administrator of the estate of D. D.. de- assd, in account current for partial (or final set- thevouchers produced for each item, and be so compte that any person, without explanation, can understar the precise condition of the account. HMHBC/f G. N cfuardian of I. D. one of the childrc Accountant t c t) Voher Accountant $ c and heirs of D. D., of , deceased, in accoui charges him- W claims credit with the estate of said D. D. self as fol- f as follows : lows: b Said guar- $ c O No. of Said guar- $ dian charges v oner dian credits To bal. By bal. n hims'f as fol- a himself for lows, viz. : the following Amount re- sums, paid ceived from o n account E. A., exec- of his said Acconnts Assignee's. See title AFFIDAVITS, post. utor (or ad- ministrate r ) ward, as per vouchers on The account of A. A., assignee of I. T., mer- of said D. file, viz. : ant, of , by deed of voluntary assignment, ted the day of . D., being the proportion of I PaidC. C., clerk's fees, P. ' 1 \ V 7 The said as- sig'ee ch'rgs himself with $ e o n Vcher The said as- sig'ee claims credit and al- $ c personal es- tate (or other tuise) due the said I. D., as 2 3 aid A. Y ., at'ney's fees, Paid E.G., for 6 months' 5 all and sin- gular the as- lowance for the following one of the heirs of said 4 b'rd for ward PaidT. N., 96 signed est'te. pa y m e n t s, D. D., . . 1200 00 for 6 months' real, person'! etc., viz. Cash from tuition, etc., 18 and mixed, No. I R. R. for one Etc., etc. of said as- year's rent of signor, I. T., - etc. etc. according to Etc., etc. an inventory and appraise- ment thereof filed in the office on the day of Total, Total, , amount- ing t r the sum of . The guardian should add to the credits the amou Said as^ee that the court allows him as compensation. further ch'gs hi mself as follows, etc. To bal. By bal. G. N., guardian of the person and estate of D. , minor heir of D. I)., deceased, account ot r ceipts and expenditures. Account of A. A., assignee of I. T., insolvent. e Said guar- dian credits $ c C No. ofi Said guar- Vcher j jan charges $ Said as- $ c g Vcher Said as- $ c n said estate a said estate sig'ee ch'rgs 3 sig'ee claims with . with the fol- hi mself as n credit as fol- Etc., etc., lowing pay- follows : lows, viz. : ments on Amount of No. I vou'ers filed. Inven'ry and Etc., etc. appraisem'nt made the day of . To ba. By bal. To bal. ByM. ACCOUNTS. N., guardian, in account with I. D., his ward. Cr. Dr. G ?> of de further ch'ge themselves with the fol- lowing sums received i n cash since the filing of the first (or other) acc't, viz. : Etc.. etc. fobal. The final (a, the last wi ceased. ?? By bal. To amount received of E. A., ad- mini strator of ward's fa- ther, . . . To amount of note of P. N., to ward, secured by mortgage, To rent re- ceived of T. T., for, etc. Etc., etc. Ac S< The first and ecutor of th , in the < t 1076 8930 75o C 39 00 00 No. of V'cher By costs and expenses of guardian- ship as per schedule A, hereunto at- tached, . . By amount paid for the maintenance and tuition of ward, re- pairs on real estate, taxes, etc., as per schedule B, hereunto an- nexed, . . By balance on hand, etc. t 37 3IO c 45 II - other) account of E. X., execut 1 and testament of D. D., of G F ] la: Said exec- utor charges himself with the amount of the inven- tory and ap- praisement as filed in the office of the ,etc., *7,5o Less inter- est in special partnership, with not rec'd, 3,000 To cash, 6 mos. interest on 10,000 at 6 per ct. loan of , etc., due , 600 Less State tax, $12 Etc., etc. Final (or Part it will and te $ 4500 588 c oo 00 G p ,No. of V'cher Said exec- utor claims credit for the follw'g pay- m'nts.ch'rgs and disb'rse- ments made on account of said es- tate, viz.: By cash paid, etc. t counts Executor's. e tide AFFIDAVITS, post, partial (or final) account of E. X., e last will and testament of D. D. , :ounty of , merchant, deceased. The said accountants charge them- selves with all and singu- lar the goods and chattels, rights and cr'dits which were of the said dec'd, agreeably to an inventory filed in the office, etc. amounting to To an in- crease on the sale of goods, etc., . . . Etc., etc. To bal. The second t supplementar the last wi rmer, deceas $ 3So 60 c 20 30 c V n No. of V'cher I 7 The said accountan t s credit them- selves for the followingdis- bursements made out of the estate aforesaid, viz By cash pd. f o r probate of will, etc., etc., . . . By amount of goods be- qu'thed wid- ow, etc., etc. By bal. $ S 1750 C oo 00 ial) account of E. X. , executor of tl slam en t of D. D. , of , decease p F 1 Accountant charges him- self as fol- lows : Amount of sale bill, . To balance MM s< Mr. A. B.,of 1 c w n And acc'nt- ant claims credit for the follw'g pay- ments made on behalf of said estate : Paid . Paid by bal- ance, etc. V'cher No. I " B $ md final (or $d, 4th, etc., final, partial, /) account of E. X.,T. S., executors 1 and testament of D. D., of , ed. The said accountan t s charge them- selves as fol- lows, viz. : The amt. of personal est'e remain- ing in their hands at the close of the first partial (or other) &c- count fi 1 e d and audited (or allowed) on tkc day of, . . Balance of cash on hand at the close of the first (or other) ac- count, . . The said accountan t s $ '673 2IO C 50 00 G u No. of V'cher The said accountan t s claim credit and allow'ce for the fol- lowing pay- ments, etc., viz. : Etc., etc. t c /ements of Account. detail, for Collection, etc. e title AFFIDAVITS, post. ' . Bought of C. D. , of . Dates. Ordei Mr./ Boug St. Terms be retur Items and description of things purchased. Amount t c , No. . New York, . L. B.,No. , St. htof C. D. & Co., Importers, etc., No. cash. Purchases not giving satisfaction mv led at once, when the price will be refunded. Dates. Items of goods purchased. Amount $ c ACCOUNTS. BOOK-KEEPING 1 is the science of re- cording business transactions in such a manner that a person may at any time know the exact state of his business affairs. There are two methods of book-keeping in general use : single and double entry. SINGLE ENTRY. In single entry, accounts are kept with persons tnly, and the amounts entered but once in the ledger. BOOK-KEEPINO FORMS. Day Book Single or Double Entry. Daily Entries. Philadelphia,' January ist, 1876. *d Commenced business this day with a cash capital of Bought of J. H. Warren, for cash, Mdse. as per invoice, . . Sold R. Stevens, for cash, Mdse. as per bill, . . 3 - Sold J. C. Anderson, for cash, Mdse. as per bill, . . . 4 Sold Geo. Brown, on his note at 10 days, Mdse. as per bill, . . . 5 Bought of H. C. Wright, on my note at 10 days, Mdse. as per invoice, . 6 Paid for painting counters, shelves, etc. , Paid for ton of oal for store, 8 Sold T. C. Mann, for cash, 20 yds. blk. cassimere, @ $3.50 Bought of Saml. Mills, on my note at 30 days, 50 yds. fancy cas., @ 82.00 65 " blk. doe., @ 3.25 Bought for cash, 10 shares R. R. stk.,' @ $49.00 Sold Geo. E. Oberer, on his note at 10 days, 10 yds. fancy cass., @ 82.50 20 yds. blk. doe., @ 4.12^ Sold J. C. Abbott, for cash, 2 shares stk. , @ 850 15 Paid for washing windows, counters, etc 16 Sold O. L. Smith, on his note at 30 days, 20 yds. fancy cass., 100 yds. fancy cass., 82.75 50 yds. blk. doe., @ 4.45 '7 Rec'd cash for Geo. Brown's note, due this day, . . Sold T. L. Clark, for cash, 125 yds. fancy cass., @ 83.00 Paid my note, favor of H. C. Wright, due this day, . . Sold for cash, . $ shares stk., @ 850^ 47 5 275 75 475 390 862 490 545 39 375 862 252 M Bought for cash, 100 yds. blk. cass., @ 81.75 13 Sold J . C. Abbott, on his note at 3 days, 50 yds. blk. br'd cloth, @ 85-00 75 yds. fancy cass., @ 2.25 34 Bought ofjames P. Brown, 50 yds. fancy cass., @ $2.10 Gave in payment, 2 shares stk., @ 85 Rec'd cash from George E. Oberer, For his note due this day, 36 Sold for cash, i share stk., 27 Sold J. Baker, for cash, 25 yds. blk. doe, @ 83.00 39 Rec'd from James C. Abbott, For his note due this day, j ___^______ Paid rent for January, . . do. gas bill " ... 1 68 17500 418 105 107 $o 75 4.8 75 Single Entry. Ledger Entries General Forms. Dr. J. H. Warren. C 1876. 1876. Jan. Jan. 15 19 31 To cash, 100 bbls. floor. To cash bal.. Paged'yb'k. 500 500 100 1100 00 00 00 00 Jan. 1 17 By mdse. Paged'yb'k. 750 250 100 Dr. R. Stevens. C 1876. 1876. Jan. 10 11 17 19 To corn, " flour, " cloths, " sundries, 70 10 16 Ji 121 30 70 50 50 00 Jan. 15 By cash, ' bal'ce, 60 71 121 Dr. J- C. Anderson. C 1876. 1876. Jan. 15 17 17 To sundries. " groceries, mdse., 73 26 100 200 10 90 00 00 Jan. 20 31 By mdse. balee. 107 93 200 Dr. H. C. 1876. Wright. C 1876. Jan. 31 To cash, | 862 00 Jan. 50 By mdse. |J= Single Entry. Cash Book Entries General Forms. D r Cash. C 1876. 1876. $ Jan. 1 a Toc'sb on hand A. B., 637 37 5'l By rent for one qusr. pd. L. 65 g ' C. D. on ac't fi.'i 43 By note to P. E. ; 127 4 5 E. F. o . note O. H.. 127 gt 73 " family exps, 27 mdi.oDf.K.: 614 . 6 I. K , 17 90 cash on band 55U 7 L. M.. 1IH1 90 " 31 sales mdse. 311 1H 1382 13M 86 Feb. 1 1 I Cart on hand. I 550 I 65 II I i DOUBLE ENTRY. IN DOUBLE ENTRY accounts are kept with both persons and things, and the amounts en- tered twice in the ledger once on the debit and once on the credit side. i)-Pierc's Guide to Book-Keeping. ACCOUNTS. Debtor and creditor are correlative terms; the one implies and involves the other. Wher- ever there is a debit there must be a credit for an equal amount, and wherever there is a cred- itor there must be a debtor. The same general results may be shown by either single or double entry, but the latter is superior in this respect ; that it not only shows one's standing with the persons with whom he is dealing, but it also shows the particular kinds of property possessed, and the profit on each kind, thereby furnishing a guide for the management of business. The principal books used in business are the Day Book, Journal, Ledger, and Cash Book. The Day Book should contain a concise and comprehensive history of the merchant's busi- ness transactions. It being one of the few books allowed in cases of litigation care must be taken in making the records so that an en- tire stranger, by reading them, would under- stand fully the nature of the transactions. No erasures are allowable in this book. If a mis- take is made, either in words or figures, draw a line through it with red ink, and place the correction above. Do not remove the error; only cancel its effect. The Journal is a book in which the trans- actions recorded in the day book are prepared for the ledger, by determining the proper debits and credits and their names. This process is called journalizing, and is, in fact, the science of double entry book-keeping. The Ledger is the general register in abstract of all the debits and credits, arranged in systematic order under their appropriate heads. From this book the merchant can readily ascer- tain the state of his business affairs, as well as his relations to persons with whom he is doing business. The Cash Book, in which is entered all cash received or paid out at the time of occurrence. Be careful to give the date, the account to be debited or credited, the explanations, and the amount of each entry. In actual business it is usually balanced every night, the balance agreeing with the amount of cash on hand, added to the bank balance, if a bank account is kept. There are four distinct classes of ac- counts, viz., Individual, Non-speculative Rep- resentative, Speculative Representative, and Loss and Gain Accounts. Individual accounts are those accounts clothed with the authority to maintain a suit at law ; they include accounts with persons, banks, and all corporate companies. Loss and Gain accounts are such as show losses and gains only, and do not in themselves represent any value. To this class belong Profit and Loss, Interest, Commission, Insurance, Expenses, etc. Representative Non-speculative accounts are those that represent assets or liabilities, on which there can be no increase or diminution of value, as Cash, Bills Receivable, Bills Pay- able, etc. Representative Speculative accounts are thosa which represent value, but on which you may gain or lose : as Merchandise, Real Estate, Personal Property, Shipments, Shipment Com- panies, Merchandise Companies, and all kinds of Corporation stocks. MERCANTILE DEFINITIONS. See " Practical Rules," below. The principal kinds of business paper in general use are Bills of Exchange (Foreign and Inland), Notes, Checks, and Receipts. An Account Current is a statement of the mercantile transactions of one person with another, drawn out in the form of Dr. and Cr., dealing only with gross sums, and is an exact copy of the personal account found in the ledger. An Account Sales is a statement of all the details concerning an individual lot of goods. It is distinguished from an account current by these three particulars : I. The account current is with an individual. The account sales is of a particular lot of goods. 2. The account cur- rent involves net sums. The account sales presents items in detail. 3. The account cur- rent may involve the proceeds of many account sales, and all transactions with an individual, whether arising from the sale of his goods or not. The account sales is limited to an account of the transactions arising from the sale of one lot of goods. A Bill of Exchange is a written order or request from one person to another, desiring the latter to pay to some person designated a certain sum of money therein named. When drawn in one country (or State) and payable in another, it is called a foreign bill. When drawn and payable in the same country (or State) it is called an inland bill, or more fre- quently a draft. It generally is, and to be ne- gotiable, it must be made payable to "order" or " bearer." The person who draws the bill is called the drawer;- the person on whom it is drawn is, before acceptance, called the drawee ; after acceptance, the acceptor. The person to whom the money is directed to be paid is called the payee. A Bill of Goods is an account of goods sold, given by the seller to the buyer, contain- ing the quantity and prices of the articles, with a statement of the date and terms of credit. A Check is an order for money drawn on a bank, or persons doing banking business, hav- ing money in their hands, payable at sight. To Close an Account is to make both sides equal. An Invoice is an account of goods sent by a merchant to his consignee, containing the particular marks, value, charges, and other particulars of the goods. A Ledger Account is a space in the ledger set apart for the debits and credits of a particu- lar kind, with the name of that kind written at the top. ACCOUNTS. Posting is transferring the journal debits and credits to their proper place in the ledger. A Promissory Note is a promise, in writing, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named, or to his order, or to the bearer. A Receipt is a writing acknowledging the receipt of money or any other kind of property. A Trial Balance is a systematic arrangement of the ledger accounts, with their proper debit and credit totals, made for the purpose of ascer- taining if the debits and credits of the ledger are equal or balance. PRACTICAL RULES. See " Mercantile Definitions," above. Bank. The debtor side shows the amount deposited. The credit side the amount drawn out. It usually closes " By balance." A Bills Payable is a written obligation for the unconditional payment of a certain sum of money, at a certain time to a certain person, his order or bearer, without interest, issued by yourself, and payable by you by virtue of your written promise contained in it. At the time of commencing business, bills payable account will be credited for all notes and acceptances outstanding, and during the business for all notes and acceptances issued by the merchant. It is debited for all redeemed. The difference shows the amount still outstanding. It always closes " To balance." A Bills Receivable is a written obligation for the unconditional payment of a certain sum of money, at a certain time to a certain person, his order or bearer, without interest, issued by any one but yourself, and payable to you by virtue of the written promise contained in it. Bills receivable account is debited for all notes and drafts on hand at commencing business, and for all received during the business. It is credited for all parted with. The difference is the amount still held. It always closes " By jalance." Cash is a non-speculative representative ac- count. The debtor side shows the amount received ; the credit side the amount paid out ; and the difference is the amount on hand. It always closes " By balance." A Consignment is a name given to goods re- ceived, to be sold on account of the shipper, and at his risk. It is debited for all charges when received, and credited for all sales. When an account sales is rendered, it is debited for all unposted charges, and for the shipper's net proceeds. The person who receives a con- tignment is called the consignee. Expense account is debited with all moneys paid or liabilities incurred, from which no direct return is expected, such as clerk hire, store rent, etc. It is closed " By profit and loss." Merchandise is a speculative representative account. It is debited for the cost of mer- chandise on hand at commencing, and for all purchased during business, arid credited for all sales; and when the merchandise has all been sold, the difference between the sides will be gain or loss gain when the production or credit side exceeds the cost, and loss when the cost or debtor side exceeds the production. To find the gain when the merchandise has not all been sold, add the inventory to the sales or credit side, and from this sum substract the cost or debtor side; the remainder will be gain. It is closed " To " or " By profit and loss." Should the debtor side be greater than the creditor, the difference between them will be loss. Real estate, personal property, corporation stocks, and all speculative accounts are treated precisely as merchandise. Merchandise Company is a name given to goods received to be sold on joint account and risk. When received, it is made debtor for the consignee's interest and all charges. It is credited for all sales, and at the time of render- ing an account sales, is debited for all unposted charges and the shipper's net proceeds. Profit and Loss account is debited with all losses and credited with all gains. The differ- ence is the net gain or loss. It is closed " To " or " By stock." A Shipment is a name given to goods shipped to be sold on account of the shipper, and at his risk. It is made debtor for the cost of the mer- chandise sent, and all expenses incurred at the time of shipping. It is credited for the net proceeds when an account sales is received. It is closed " To " or " By profit and loss," if an account sales has been received, but if not, it is credited for its full cost. The person shipping the goods is called the shipper or consignor. Shipment Company represents the shipper's interest in goods shipped to be sold on joint account and risk. It is made debtor for his interest at the time of shipping, and creditor for his net proceeds when an account sales is received. It is closed the same as a shipment Stock represents the merchant or stockholder, and is made debtor for what the business man owes on commencing business, for all sums withdrawn, and at the time of closing, for all losses that have occurred during the business. It is credited for all sums invested, and for all gains. It is closed " To " or " By balance ; " " To balance " showing the net capital, and " By balance " the net insolvency. JOURNALIZING. Journalizing may be, and often is, done with- out a journal. One journalizes when on hear- ing of or reading a business transaction he de- termines that entries should be made on certain sides of certain ledger accounts. The funda mental law of journalizing is that exactly as much shall be placed on the Dr. side of the ledger as goes on the Cr. side, and exactly as much must be placed on the Cr. side as goes on the Dr. side. And no business transaction can be invented in which each of the parties to it does not either receive something, or some- body or thing has cost him value, and at the same time each of the parties to the transact!'. n has parted with something, or somebody ^ i thing has produced him value. ACCOUNTS. Bales. DEBIT THE THING RECEIVED OR WHATEVER COSTS VALUE. CREDIT THE THING PARTED WITH OR WHAT- EVER PRODUCES VALUE. CLOSING A LEDGER. Closing the ledger is ending the current con- dition of all the Ledger accounts. In the pro- cess, all the gains and losses that have occurred in the business are gathered together in the Profit and Loss" account and there com- pered. The gains are placed upon the credit side ; the losses on the debit side. When the credit side is the greater the account is closed "To stock," and shows a net gain. The opposite entry " By profit and loss " is made in the Stock account, and increases the capital. When the debtor side is the greater the account is closed " By stock," and shows a net loss. The opposite entry " To profit and loss " is made in the Stock account, and decreases the capital. A balance sheet is a systematic arrangement of the resources and liabilities of a business. Rules. 1. Take a trial balance; if it shows the total of the ledger debits equal to the total of the ledger credits, proceed as directed below. If the totals referred to above are not equal, re-add each journal column to see if the debits and credits are equal there ; if the mistake be undiscovered yet, re-add the ledger debits and credits, and if this does not reveal the mistake, examine each individual post from the journal, and check it where correct. The mistake in your trial balance must arise from faulty work in one of these three items, in every case where the ledger contains no matter excepting what was posted from the journal. Any one can find the mistake who can perform such work (add- ing and transferring) correctly, and he who finds the mistake will find it in one of these three places. 2. Take an inventory, and credit the Specu- lative Representative accounts for their respec- tive amounts " By balance," and make the opposite or debit entries in a Balance account, which open. 3. Close all Speculative Representative ac- counts " To or by profit and loss," making opposite entries in Profit and Loss account. 4. Close Profit and Loss account " To or by stock," making an opposite entry in Stock account. 5. Commence with the first account now un- closed and close it, and all others unclosed, "To or by balance," making the opposite en- tries in Balance account. All closing entries must be made in red ink. The entries subsequent, opposite and corre- sponding to the closing ones, together with footings, write in black ink. Accounts closing "To balance "show liabilities, those closing " By balance " assets or resources, hence Bal- ance account will show resources on the Dr. side and liabilities on the Cr. side. Accounts closing " To profit and loss," show gains, those closing " By pwfit and loss," losses, hence Profit and Loss account will show losses on the Dr. side, and gains on the Cr. side. When the direction given requires an account closed "To or by another," close it ' To the other" if the debit side is the least, and " By the other" when the Cr. side is the least. There are but three general ways of closing accounts : " To or by profit and loss," by which all the gains and losses are collected in Profit and Loss account ; " To or by stock," by which the net gain or loss is taken to the Capi- tal account ; and " To or by balance," by which all the resources and liabilities are gathered together in the Balance account. If no mistake is made in closing the ledger the two sides of Balance account will be equal, for in prosperity the Dr. side comprises all the resources of the business man, and the Cr. side all his liabilities and his net capital the net capital being the excess of resources over lia- bilities. And the net capital properly appears among the liabilities, as the books are of the business, and show that the business owes the merchant whatever he has invested in it. So in adversity the Dr. side of Balance account consists of the resources and the net insolvency and the Cr. side of the liabilities the net in- solvency being the excess of the liabilities over resources. And the net insolvency properly appears among the resources, as the merchant needs to pay or provide the business with what it owes beyond its ability to discharge. Book-Keeping ledger Entries. Double Entry. The ledger is the principal account book, and as all other books are subservient to it, it seems proper that this should be the first book considered. It is extremely difficult for a person who has no previous knowledge of the subject to understand the use or language of the journal or day-book until he is made acquainted with the nature and use of the ledger. The ledger is the book of accounts. Into it are gathered, in a condensed form, the entries contained in all the other books. Every transaction must come to this book for final adjustment ; in fact, were it not for the great difficulty experienced to avoid errors and the lack of time to neatly make the entries, all the other books might be dispensed with, and the transaction:, as they occur, entered under their appropriate headings in this book directly. All other books used in business are merely aids to the book-keeper in preparing the transac- tions for the ledger. For each person who becomes indebted to us, or to whom we become indebted, an account is opened in this book, and the date and amount of such indebtedness therein recorded, so that however numerous the tran- sactions that we have with an individual may be, or however widely separated as to time, they are all brought together within a very small space under his account in the ledger, where the amounts can be readily seen, am' whether we owe him, or he owes us, and now much easily determined. By thus bringing compactly together all the transac- tions which we may have with an individual, spread over, it may be, many months, and arranging upon one side of his account all items for which he becomes in- debted to us (that is, for which he owes us), and upon the other side all items for which we become indebted to him (that is, for which he trusts us), we make it an easy matter to quickly determine at any time the differ- ence, or balance as it is termed, and whether it be in our favor or against us. The balance is in our favor when the Dr. side exceeds the Cr., that is, when he owes us more than he tnists us : and against us when the Cr. side exceeds the Dr., that is, when he trusts us mor than he owes u. ACCOUNTS. tt By double eny book-keeping we not only keep ac- counts with individuals but with every kind of property which we own or deal in, such as Merchandise, Real Estate, Cash, Notes, etc. Each kind of property has a separate account in the ledger, the same as individuals, and is made Dr. for what it costs us when we buy, and Cr. for what it brings us when we sell or part with it. It will be seen by the following ledger accounts with Merchandise, R. Evans, John Jones, William Smith, and Cash, that each account has two sides, being di- vided in the centre by a triple line. The left-hand side is the debit {abbreviated Dr.) side, and the right-hand side the credit (abbreviated Cr. ) side. The term debit comes from the Latin word debet, and means he tnves, and the term credit comes from the Latin word credit, and means he trusts. When an individual becomes in- debted to us for goods sold to him on credit, or for pay- ments made by us to liquidate our indebtedness to him, such sales or payments must be entered upon the Dr. side of his account because he owes us for them, and vice versa, when we become indebted to an individual for goods bought from him on credit, or for payments received from him to liquidate his indebtedness to us, such purchases or payments must be entered upon the Cr. side of his account, because he trusts us for them. The following rule must always be borne in mind, viz. : That whoever or whatever causes us to part with value or to run into debt must be debited in the ledger ; nd whoever or whatever brings us in vafue or gets us out of debt, or causes persons to owe us, must be credited in the ledger. The following examples will serve to illustrate the fortgoing remarks. Carefully consider each example and follow it to its proper accounts in the ledger. Each example affects equally two accounts, the Dr. side of one and the Cr. side of another. January 4, 1876. We bought of R. Evans on account, merchandise to the value of $1,500. In this example or transaction we buy a certain kind of property called merchandise, for which we run in debt to R. Evans, and following out what has already been said, we turn to the Merchandise account in the ledger, and upon the Dr. side we enter the date, To whom we owe for the merchandise, viz., R. Evans, and the amount $ 1,500, and then upon the Cr. side of R. Evans' account we enter the date, By what he trusts us, viz., Mdse., and the amount $1,500. The amounts upon the Dr. and Cr. sides of the ledger, after the above transac- tion is posted, are equal ; it is essential that such should be the case after each transaction is posted. January 7. We sold to John Jones on account, 10 yds. fancy cassimere (Mdse.), @ $2.25; $22.50. In this transaction we enter upon the Dr. side of John Tones' account, because he owes us, the date, To what he owes us for, viz., Mdse., and the amount; and upon the Cr. side of the Merchandise account, because it was merchandise, that produced us the amount that John Jones owes us, we enter the date, By the person who owes us for the goods, vi 7., John Jones, and the amount. January 10. Sold to William Smith on account, 12%. yds. bl'k br'd cloth, @ $6 ; $75. January 15. Sold John Jones on account, 5 yds. bl'k beaver overcoating, @ $7.50; $37.50. "January 28. Bo't of R. Evans on account. Bill of Mdse., amounting to $350. February 5. Paid R. Evans on account, $500. By looking at R. Evans' account it will be seen that at this date we owe him, or rather he trusts us for goods bought of him January 4th and 28th, $1,850. By this payment of $500, he in reality trusts us from this time until we make another payment or purchase but $1,350. Now, as we cannot erase the $1,850 and insert $1,350 in its place, we enter the $500 upon the Dr. side of his account, thus making his account to show that he still trusts us $1,850, but owes us $500. The question is now, what account to credit? R. Evans has been debited $500, and some account must be credited the same amount. According to what has already been said it must be that which we parted with or enabled us to decrease our indebtedness. In this case it was a kind of property called money with which we parted; it was the money which we paid over to R. Evans that decreased our indebtedness to him. therefore money de- serves credit. The money received and paid out is en- tered in the ledger under an account called Cash, we therefore turn to the Cash account and upon the credit side enter the date, By R. Evans, and the amount, $500. February 12. Received from John Jones on account, $15. In this example we receive property called money, and as all property when received is debited, we turn to the account in the ledger representing money, viz., Cash, and enter upon the Dr. side the date. To John Jones, and the amount, $15, and as John Jones trusts us for the $15 until he settles in full fur the goods sold to him January 7th and isth, we give his account Cr. for that amount. His account will now show that he owes us $60, but that he trusts us $15. February 31. Received from Wm. Smith on account, $25- March 2. Paid R. Evans on account, $100. March 20. Sold Wm. Smith on account, 30 yds. fancy cassimere, @ $2 ; $60. April 8. Sold John Jones on account, 20' yds. bl'k br'd cloth, @ $6 ; $120. April 13. Sold Wm. Smith on account, 10 yds. bl'k cassimere, @ $5.75 ; $37.50. April 27. Paid R. Evans on account, $500. May 15. Rec'd from John Jones to balance bills of January 7th and i.sth, $45. June 3. Sold Wm. Smith on account, 2^ yds. fancy cass. @ $7.5; $18.75. June 18. Paid R. Evans on account, $200. une 30. Rec'd from Wm. Smith to balance his ac- count to date, $166.25. In this last example, when Wm. Smith receives credit for the $166.25, the two sides of his account will be even. In all cases where a settlement in full is made or a state- ment sent to a customer, his ledger account should be balanced and ruled off. This will save much time and perplexity in future settlements, as all transactions up to the time the account is balanced or closed are supposed to be correct and adjusted, and in future settlements only transactions after the date of balancing are to be taken i nto consideration. The ruling off of an account divides the adjusted or settled transactions from the new or un- adjusted ones. Ledger Entries General Forms. Double Entry. Dr. Merchandise. C 1876. 1876. Jan. " 2 4 To R. Evans 8 " do. 1500 350 " Jan. 7 10 B j J. Jones, 11 W. Smith J K 75 15 " J. Jones. 9 37 Mar. 20 " W. Smith "5" 60 Apr. 8 " J. Jones, 5 120 IS " W. Smith I 87 June 3 do. r 18 Dr. R. Evans. C 1876. 1876. Feb. 3 To cash, 500 .. Jan. 4 Bv mdse. 1500 Mar. 2 " do. 100 * " do. 360 Apr. 2 1 " do. 500 June 1 3 " do. 200 Dr. John Jones. C 1876. 1876. Jan. 1 " IS To radge. " do. 22 87 50 50 Feb. i May 12 15 By cash do. 15 45 Apr. t " do. 120 "1 Dr. William Smith. C 1876. 1876. Jan. Mar. To mdse., !0 " do. 75 60 " Feb. June M 20 By ash, ' do. 251 1*6 April 3 " do. 37 50 - June 3 " do. 18 76 ^^ W tt - 191 Dr. Cash. C 1876. 1876. Feb. 1 I To J. JOB en. 15 : Feb. 1 By R. Evans 500 " 1 - W Smith 25 Mar. 1 do. 100 May 1 Juue * > " J. Joneii, ) "W. Smith 45 166 25 Apr. June 27 18 do. d*>. 500 . ACCOUNTS. Journal Entries Doable Entry. General Forms. Thi Journal. The journal is an intermediate book between the day book and ledger. Its use is to deter- mine the proper accounts in the ledger to be debited and credited from each day book transaction, and to arrange the debits and credits in a convenient and easy form for posting. We could dispense with the use of this book with much less inconvenience than that of the day book, but as it serves an excellent purpose in systematically arranging the day book matter for the ledger, and greatly facilitates the detection of an error in the posting, its use is very general. In many cases the day book and jour- nal are combined in one book under the name of journal day book. This form shortens the work considerably, and is well adapted to many kinds of business. There are four forms of journal entries, as shown in the following diagrams : jj r- Cr. 1. ONE DEBIT AND ONE CREDIT. Mdse., 500 750 300 200 TOO 5,50 00 00 00 00 00 oo 500 ZOO 550 500 2,000 4,200 oo oo 00 oo CO 00 To cash, 2. ONE DEBIT AND TWO OR MORE CREDITS. Mdse. To sundries, .... To cash, " bills payable, .... 3. Two OR MORE DEBITS AND ONE CREDIT. Sundries To mdse., . Cash Bills receivable, 4. Two OR MORE DEBITS AND TWO OR MORE CREDITS. Sundries To sundries, . Mdse. Reading R. R. st'k, . . . To cash " Sam'l B. Smith, . . . The following are the journal entries for a few of the y book transactions hereafter given. It will be seen that the account which we wish to :bit in the ledger is named first and the amount carried it into the inner of the two right-hand columns, and en upon the next line below, a little to the right, say >out three-quarters of an inch, we write the name of the :count we wish to credit in the ledger and carry the nount out into the outer of the two right-hand columns. Philadelphia, January 4, 1876. Dr. Cr. M,!, C I 1,500 33 75 37 35 500 IS 50 5'J 1,500 32 75 37 350 500 15 50 50 Wm Smith . . < To mdse., 33 Mdse I To k. Evans, .... Cash, To Jno. Jones, .... ar Book Entries Double (or Single) Entry. General forms. Tkt Day Book. In our remarks upon the ledger we ted that in some cases it might be possible to do with- it the day book, although we would in no case advise ; but when the transactions become numerous, it is 'en absolutely necessary to have a book in which to cord them as they occur, so that time and care can i taken in transferring them to the ledger. The book for this purpose is called the day book ; by some it is called the blotter, and by others a waste book. In it are entered, in the order of their occurrence, every transaction, bargain, and agreement which we make, and as it is the only book allowed to be produced as evidence in a suit at law (that is, when the transac- tions are not divided between several books), pains should be taken to record correctly everything pertaining to the transaction, such as the date, articles, price, amount, and anything else essential to the proper understanding of the transaction in the future. Many bitter conten- tions resulting in the loss of money, reputation, and friends would be avoided if all bargains and agreements, as well as purchases and sales, were recorded in writing by each interested party as soon as made. This, of course, can be done in the day book. The aim should be to enter each transaction in as concise or terse a manner as possible, and yet to have everything recorded essential to a right reading, without the aid o? the memory, in case you were in the future forced to law upon the matter. No erasure or scratching out is allowed in this book, as that would look suspicious and at once destroy its strength as evidence, but if it be discovered that a trans- action has been entered incorrectly, the error should be explained in a separate entry so soon as discovered. The following are a few of the first examples given in remarks upon the ledger, and are now used here to illus- trate the form, etc., of this book. It will be observed that the last entry differs from the others in that it has several kinds of articles recorded. When this is the case, the inner column of the two right-hand columns is used for the sum of each separate item, and the sum total of all the items then carried to the outer columns. When there is but one item in the transaction, the amount is entered only in the outer columns as in all the entries before the last. Philadelphia, January 4, 1876. Bo't of R. Evans on ac't, Merchandise per inv., . 7 Sold John Jones on ac't, 10 yds. fancy cass., @ $2.25 Sold Wm. Smith on ac't, # yds. blk. brd. cloth, @ $6.00 IS Sold John Jones on ac't, 5 yds. blk. b. overcoating, @ $7.50 28 Bo't of R. Evans on ac't, Mdse. as per inv., . . February 5- Paid R. Evans on ac't, cash, 13 Sold James B. Allan on ac't, 10 yds. fancy cass., @ {4.50 5 yds. blk. doe., @ 3.50 2% yds. Scotch tweed, @ $6.00 1,500 35 500 77 50 Philadelphia, June i, 1876. Commenced business this day with the following resources and liabilities. Resources. Store and lot valued at . Cash on hand, . . . Mdse., R. M. Snell's note dated May loth at a mos. for E. Cadwallader's note da- ted April 28th at god vs. H. King's note dated May I3th at 60 days, . . Harrison & Fletcher owe me on ac't, .... Liabilities. My note favor E. R. Car- penter & Co. dated Apr. 24th at 4 mos., . . . My note favor Borie & Sons, dated May 3d at 60 days, .... 30,000 10,000 5,000 2,460 86 4 9438i 3,5 1,3" 4 ACCOUNTS. vly note favor Harrison. Haremeyer & Co. dated May 4th at 90 days. . I owe K. M. Bartoll & Co. on ac't, .... 743 '5 ,ia6 8 1,500 1.750 500 825 1,260 500 75 300 i 37 1 7,397 8,460 3,5 500 i,3" 3 3 So 40 18 Rec'd from 'Harrison & Fletcher to balance ac't *3 3 15 1,047 6 75 13 5' >5 73 ? : Paid for advertising, . 5' " sundry petty exp. Jot. of Bone & Sons, 82 hhds. mus. sugar. 1544 1621 1586 1643 1601 1585 1611 1567 1562 1581 1587 1640 1605 1544 1620 1575 1575 1617 1610 1609 1601 1548 1562 1617 1568 1620 1602 1600 1447 1502 1412 1417 Total gross weight 50- 410 ; per cent., tare 2521 P lid J. Dunn's bill for counters, shelv'g, desk, Paid sundry petty exp. Store and lot, . $30,000 Mdse. on hand, 8,700 Store fixtures, . 270 Ledg'r folio. Journal Entries. Dr. Cr. Gave them on ac't cash My note at 60 days for Hal. 30 days. Philad'a, June ist, 1876. 30,000 00 oo 00 77 81 *3 07 00 70 76 24 79 5 00 40 00 00 32 '5 00 89 18 S 00 15 00 75 12 S',009 5,*7' 2,126 1.500 35 1,928 2,460 144 3 ''6l 500 1,262 So SOD 1,260 413 669 *6 1,047 26 *75 ii 77,7 58 :i 00 00 07 70 00 79 58 92 00 09 31 oo 00 32 04 18 Si 15 00 75 * i i z z 2 X I Z Z Z Z a I 3 z z 3 2 z * a 3 a Z I 2 I I 2 I Z I I I 2 I I I I I t I 2 I I I Sundries To Stock, . . Store and lot, .... Sold Harrison & Fletcher, 12 hhds. mus. sugar, 1502 1480 1491 1504 1474 1521 1500 1524 1482 1510 1505 1565 Total gross weight 18- 046 5 per cent, tare, =lbs. @ n# Rec'd on ac't cash, Their note at 30 days, Balance 30 days. Mdse' S.ooo 5,065 943 7,397 5,M8 500 825 603 2,301 158 144 3>5 500 1,3" 1,760 275 138 200 37 1 97 366 1,047 23 3 275 13 77^687 Bills Receivable, . . . Harrison & Fletcher, . Stock To Sundries, . . Bills Payable. . . . R. M. Bartoll & Co., Mdse. To Sundries, . . Bills Payable, . . . Borie & Sons, . . . Dis'd at the Girard B'k R. M. Snell's note, dated May 10, at 2 mos. Dis. off 39 days. Proceeds to my credit. Sundries To Mdse., . . Cash, Bills Receivable, . . . Harrison & Fletcher, . Sold Rob't Thompson, on his note at 90 days, 5 bbls. mus. sugar, 251, Sundries To Bills Rec., Cash . . . Interest and Discount, per cent. Tare = lbs. @M Bills Receivable, . . . Bills Payable To Sundries Cash Dis'd for E. R. Carpen- ter & Co. My note their favor, dated Ap'l 24, at 4 mos. Dis'd on 82 days, @ per cent Proceeds paid in cash. Interest and Discount, Bills Receivable To Har- rison & Fletcher, . . Bills PayabliTTo Sundries Cash Rec'd from Harrison & Fletcher on ac't. Their note at 30 days, Interest and Discount, R. M. Bartoll & Co. Tc Dis'd for Boric & Sons, My note their favor, dated May 3, @ 60 ds. Dis'd off days. Proceeds paid in cash. Cash, Bills Payable, . . . Sundries To Mdse., . . Cash, Gave R. M. Bartoll & Co. on ac't, my note at 2 mos. for E. Cadwallader, . . . Sundries To Mdse., . . Cash ... . Cash, . . . . Bills Receivable, . . . R. M. Manning, . . . Sold E. Cadwallader, 2 hhds. mus. sugar, 1824, 1639, 2 per cent. = Ibs. . . @ i2ji Rec'd on ac't cash, R. M. Bartofl & Co. To Cash, Cash To "Harrison & Fletcher Sold R. M. Manning, 4 hhds. sugar, 1694, 1710, 1742, 1723, 4 per cent. = los. . @ 11% Rec'd on ac't cash, . His note at 60 days, Balance 10 days. Sundries To Cash, . . Advertising, .... Store fixtures To Cash, Expense To Cash, . . Paid R. M. "Bartoll & Co. to balance ac't, . . ACCOUNTS. Ledger Entries. Dr. Stock. Cr. 1876. 1876. MM 1 30 To Bund'i " . . -.as; -' 45, 'A3 t (fijeao 4i i June I " i July 1 By Suu.ru M " P.*L. 1 By Bal. 51 ,UO!) 1,6'JO 52,630 45,223 58 87 45 22 Dr. Cash. Cr. 876. 1876. *une July 1 S 5 12 13 IV 1 To Stock, " MdM., "BUreo " lldae., "H.*F / 10,0000 MO 2,301 7 175 100 1 1,047 i 14.3-.i4 4 ) June ) " I " ) > ' I ' 2 2 By MdM., 7 ; B't pay- 10 'R.M.B. 15 ' " " 23 ' Sund'i, ' St'refU. iO ' Exp'M, 10 'Bal. 1,500 3,149 1,262 500 366 26 175 13 7,231 14,324 00 58 09 00 18 15 00 75 67 42 To Bl. T,2Sld r Dr. Merchandise. Cr. 1876. 1876. Jan* Jfr 1 1 30 1 To Stock, Sund't "P.*L. To Bal. 5,000 01 5,148 1,707 7 11,855 8,700 W ) June r " i " ! 1 3 By Sund'a 6 "B'Urec. 2 " Sund'a, 3 " Sund'i, 10 "Sal.Inv. 1,928 144 413 669 8,700 70 79 32 04 00 85 11,855 Dr. Bills Receivable. Cr. 1876. 1876. June July 1 J 6 8 13 1 To Stock, " ildie., " H. * F. " lldM., To Bal. 5,065 7 825 01 144 71 500 (X 371 01 6,906 5f June " ! 5 By Bund'a, 10 " Bal. \/ 2,460 4,446 6,906 00 56 56 4,446 la 1 Dr. Bills Payable. Cr. 1876. 1876. June 7 9 30 To Sund'<, " Sal. 3,!15 50 1,312 40 i,753 15 8,281 05 Juae " 1 July By Stock, ! Mdse., ) ' K.M.B. By Balance 5,271 1,750 1,260 8,281 3,753 05 00 00 05 15 Dr. Interest and Discount. Cr. 1876. ' 1876. Juue 6 To Bill* rec. 158 24 158 24 June " 3 7 By Billj pay. 9 " " " "Prof, it L. 65 50 42 158 92 31 01 24 Dr. Expense. Cr. 1876. 1876. June 2.1 30 ToCuh, Jlljll June ISO 33 1 By Prof. a. Lot i 16 90 Dr. Advertising. Cr. 1876. 1876. June a To Caen. 23 001 1 June j 30 3y ProJlf&Loi I 23 00 Dr. Harrison & Fletcher. Cr. 1876. 1876. June i s To Stock, " MdM., 943 81 603 70 1,547 51 June " 1 l }',) llilljrec. > " Cash, 500 1,047 1,547 00 51 51 Dr. R. M. Bartoll & Co. Cr. 1876. 1876. Jon* 10 10 To Sued i, .. Caafc, 1,760100 S66HS IJune 1 By Stock, 2,126 2,126 18 18 Dr. Bone A Son*. C 1876. 1876. June 1 30 1 To Bml. 1,898 07j| June > "July Bj MdM., MI Bal. 1.898 1,898 Dr. E. Cadwallader. C 1876. 1876. Jane July 1.! 1 To MdM., To Balance, 138 138 6-1 Juue 3 sill By Bolanci, 1138 Dr. R. Manning. C 1876. 1876. June July 13 1 To Mdw., To Balance, 97 7 U 'une 3 By Bulanct, I* 7 Dr. Store and Lot. C 1876. 1876. June July ; To Stock, i To Bal. ' 30,000 80,000 00 J 00 une 31 ) By Sol. 30,000 30,000 Dr. Store Fixtures. C 1876. 1876. June July '.'6 1 To Cub, 1 1 To Bal. S 75 00 75 00 70 00 June 30 T 30 ) Bol. Int. Profit. & L. 270 5 275 Dr. Profit and Loss. C 1876. 1876. June 30 30 30 SO 31) 30 30 30 To Int. AIM*. " Expense, " Adver., " Store Fix. " StkVttO. 4 1 i. 1 1,621 01 > 90 ( 00 > 00 ) 87 June 30 By MdM., 1,707 1,70 - 7H 1,707 Trial Balance. Cash, 7,231 67 Stock, 45,233 Mdse., Bills rec., 8,700 4,446 00 56 Hills pay. BorietSi 3,743 1,898 E. Cadwal'r 138 32 R. Manning 97 89 Store & Lot 30,000 00 Store FLxt. 270 00 50,884 44 50,884 Accretion. See REAL PROPERTY. Accusation. See CRIMINAL LAW ; S LANDS*. ACKNOWJLEDOMENT. See BILLS OP SALS; CONVEYANCES; EVIDENCE; LEASES; MORTGAGES; POWERS OP ATTORNEY, For full and elaborate series of Acknowledgment Certificates see NEW YORK and PENNSYLVANIA Forms. All deeds, mortgages, powers of attorney, and other instruments for the conveyance of incumbrance of any real property whatever, must be acknowledged, and in conformity with the provisions of the statute in force where the property is situated. ACKNOWLEDGMENT FORM8. Stating tbe officer's place of residence. The first thing that the certificate of acknowledgment hould show is the place where it is taken and made. The officer who certifies to the acknowledgment must b authorized by law, and can act only in the limits of the territory or locality for which he is appointed or elected. Thus : an officer or court of Allen county could not legally take an acknowledgment in Brown county, and Allen county may be in Alabama and also in Wyoming. This statement should be tuch as b commonly ued in the place it is taken. Examples are as follows : State of , county, 88. , r / State of, county, set., evt State of , county, to wft,*r.- State of , county of , city of ,. t rr ACKNOWLEDGMENT. State of , city (or department, district, parish, town, township, or other place -where the officer takes the acknowledgment) of , ss. Territory of , city, etc., of , ss. Province of , Dominion of , etc. Port of , Empire of , etc. Commencement of tne Certificate. After stating the place where the acknowledgment is taken, the certificate, like any other instrument of writing, must have its commencement. Examples of which are as follows : I certify that, etc., or : I do hereby certify that on this day of , in the year , before the subscriber, a , etc., or : On this day of personally appeared before me, a {giving your official title] in and for said county, came (or personally appeared; G. R., etc., or: On this day of , before me (the under- signed) O. R., a (give official title) in and for said county (or city, etc.) came (or personally appeared) G. R., etc., or: I, O. R., a in and for said county (or city, etc.) do hereby certify unto all whom it may concern that G. R. did this day appear before me, etc., or : Be it remembered, that on this day of , before me, O. R., a (stating' the name of his office) in and for said county, the grantors, G. N., T. R., and R. S., etc., or: Boston, July 4, 1876, then personally appeared the above G. St., etc. After commencing the certificate as above indicated, it is necessary to state what the party appearing ac- knowledges ; these forms of statement vary in the dif- ferent States, and are given in the following pages, to which you are referred. Conclusion of the Certificate. In order that the certificate shall be authoritative, the officer must by an appropriate conclusion bear witness to and affirm the making of the declarations embraced in the certificate of acknowledgment, and then sign, and if he have any) affix his seal to the same. The conclusion may be thus : Given under my hand and seal of office, or : Given under my hand and seal this day of , or : In testimony whereof, I have hereunto set my hand and (official ur notarial) seal, the day and year last above written (or, the day of ), er : In testimony whereof, I have caused the seal of (the court) to be affixed (at ) this day of , or : In witness whereof, etc. Officer's Signature and Seal. The signature of the officer followed by his official title is made at the bottom right side of the instrument. The seal of an officer (when a seal is required by law), if a scrawl, is generally written at the end of his name and official title ; but, if an impression seal, it is ttamped at the bottom left side of the instrument. [L. S.] M. R., Mayor of . J. P., Justice of the Peace. [Seal.] [L. S.] N. P., Notary Public. [L. S.J P. O., Presiding Officer of (state what). [L. S.] C. C., Clerk of the Court, or: [L. S.] J. J., Judge of the Court. [L. S.] C. D., Commissioner of Deeds for the State of . [L. S.] C. L., Consul of the United States of America resident at . z-These clauses apply to Florida only. It is also necessary that the certificate of acknowledgment of the clerk or prothonotary be authenticated by the judge or justice present at the making thereof certifying that said acknowledgment was made in his presence, and that z Acknowledgment General Form. Embracing the legal requisites for District of Colum- bia, all the States, Territories, and Canada. All terms, words, and phrases in this acknowledg- ment are strictly statutory, are drawn from a compari- son of all the statutes, and when this acknowledgment is used it should be either in connection with the par- ticular statutes regulating the terms of the acknowledg- ment to be taken or copied at large. It is necessarily long, but exhibits practically and in the aggregate the various methods of securing a free and voluntary acknowledgment. There is no necessity in its use; it being customary to take and conform the acknowledgment according to the provisions of the law of the place where the land conveyed is situated. State (or Empire ; Kingdom ; Port ; Territory of , as the case may be). County (or City ; Dis- trict ; Province, etc., as the case may be) of , ss. I hereby certify : That I (name of officer taking acknowledgment in full) ftm (title of officer in full) and duly commis- sioned, qualified, sworn, and acting as such. That A. B. and his wife W. B. signed and sealed the (above, or annexed, or foregoing, or within) con- veyance (or instrument of writing). That said A. B. and W. his wife arc personally known to me as the grantors in said conveyance (or instrument). Or, That said A. B. and W. his wife were each (or, that the identity of each of said grantors was) sat- isfactorily proved to me by and on the oath (or affirmation) of W. T., of , and N. S., of , both good and credible witnesses, who are each personally known to me to be the persons whose names are subscribed to said conveyance (or in- strument). That said A. B. and W. his wife each person- ally appeared before me at , on this day of , A. D. . That said A. B. and W. his wife were then and there each made acquainted with the contents and legal effect of said conveyance (or instrument), and the same explained to them, and each fully advised of their rights in and concerning the property therein conveyed, described and re- ferred to. That said A. B. and W. his wife did then and there acknowledge that they executed, signed, sealed, and delivered said conveyance (or instru- ment) on the day the same bears date, for the con- sideration, purposes, and uses therein expressed, mentioned, and set forth. (That W. T., of , and N. S., of , good and credible witnesses, attested such execution, signing, sealing, delivery, and acknowledgment.) A. B. W. B. Subscribed and sworn (or affirmed) to before me this day of , A. D. . [ Official seal.~\ (Signature and official title.) I do further certify : That said W. B., wife of said A. B., was then and there privily, privately, separately, and apart from, and in the absence, and without the hear- ing of her said husband A. B. (and in the presence of J. J., Judge of the Court, 1 and in the presence of W. T. (of ), and N. S. (of ), two credible witnesses'), and being by me (the clerk of said court 1 ) first made acquainted with the contents of said conveyance (or instrument), and the same thing shown and fully explained to her, and she being fully advised of the nature of her rights in, to and upon the property therein described, conveyed, etc., examined her touching her execution, sign- ing, sealing, and delivery of said conveyance (e>- instrument). That said W. B. then and there and thereupon acknowledged and declared that she made her- self a party to said conveyance (or instrument), ex- ecuted, signed, sealed, and delivered the same (and the relinquishment and renunciation of dower therein' 1 to the lands, tenements, and hereditaments therein described ') of her own free will and accord, the person acting as clerk or prothonotary was, at the time of his so doing the clerk or prothonotary of the court of which he was judge or justice. a-This elauM applies to Arkansas and Florida only. ACKNOWLEDGMENT. freely, understanding!/, willingly, voluntarily, and as her own act and deed, and without the coercion, compulsion, constraint, restraint, ap- prehension, fear, threats, illicit or undue influence by, of, or from her said husband or any other per- son, or fear of her said husband's or any other per- son's displeasure, and that she was and is still satisfied therewith, and wished not, and does not wish to retract it, and consents that the same may be recorded. (Signature of wife.) W. B. Subscribed and sworn to before me this day of , A. D. . [ Official seal.\ (Signature and official title.) ' Acknowledgment Administrator. The only difference between this acknowledgment and those between parties representing themselves per- sonally is this : an individual sets out only his name and acknowledges the conveyance as such. The ad- ministrator sets out both his " name and official title in full," and acknowledges the conveyance "as such officer." Write out the acknowledgment as usual to the grant- or's name, then write the grantor's (administrator's) name, etc., thus, "A. R.," Administrator of the estate and effects of D. D., deceased ; continue the acknowledgment as usual, and ending " as such Ad- ministrator." Acknowledgment Assignee. See Acknowledgment Administrator, above. Write out the acknowledgment as usual, and for grantor's (assignee's) name, etc., "A. E.," Assignee of the estate and effects of A. R. & Co., bank- rupts (or insolvents), continuing the acknowledgment as usual, and ending " as such assignee." Acknowledgment Agent or Attorney. The acknowledgment is in the usual form to grantor's name, which is as follows : A. B. " by A. A., his at- torney in fact." Continue the acknowledgment as usual, adding to it, when complete, the following mat- ter: (by virtue of a power of attorney, duly ex- ecuted by said grantor, bearing date the day of , 187-, and recorded in the office of the of county, in the State of , in vol- ume , page , of ,) for and as the act of a/.] (Signature and title of officer. ) Proof by Subscribing Witness. Deeds made by non-residents of Massachusetts should be acknowledged, as the same cannot be proved before the commissioners by the subscribing witness. If the grantor die or leave the State before acknowl- edging his deed, it may be proved by a subscribing wit- ness before any court of probate or record. If the sub- scribing witnesses are dead, their handwriting or that of the grantor may be proved by competent evidence. MICHIGAN. Conveyances, etc., may be acknowledged within this State before any judge or commissioner of a court of record, or before any notary public or justice of the peace, and the officer taking such acknowledgment shall indorse thereon a certificate of the acknowledgment thereof, and the true date of making the same under his hand.* Sec. 1. ... The acknowledgment of any married woman to a deed of conveyance or other instrument affecting real property, may lie taken in the same manner as if she were sole (single, unmarried). Act of April 20, 1877. Sec. 58. Any acknowledgment of any married woman to a deed of conveyance or other instrument affecting real property taken since the 4th day of August, in the year of our Lord 1875, in the same mam er as if such married woman had been sole, is vul.d and effectual, and shall be so held in all courts and places. Act of April 20, 1877. No conveyance of land, or instrument intended to operate as such conveyance, made in good faith and upon a valuable consideration, shall be wholly void by reason of any defect MI any statutory requisite in the sealing, signing, attestation, acknowledgment, or certifi- cate of acknowledgment thereof, etc.d If any such conveyance shall be executed in any other State, Territory, or district, such deed may be executed according to the laws of such State, Territory, or district, and the execution thereof may be acknowl- edged before any judge of a court of record, notary public, justice of the peace, master in chancery, or other officer authorized by the laws of such State, Territory, or district, to take the acknowledgment of deeds therein, or before any commissioner appointed by the governor of this State for such purpose.' In the cases provided for in the last preceding sec- tion, unless the acknowledgment be taken before a com- missioner appointed by the governor of this State for that purpose, such deed shall have attached thereto a certificate of the clerk or other proper certifying officer of a court of record of the county o.r district within which such acknowledgment was taken, under the seal of his office in the usual form, that the person whose name is subscribed to the certificate of acknowledgment was at the date thereof such officer as he is therein rep- resented to be ; that he believes the signature of such person subscribed thereto to be genuine, and that the deed is executed and acknowledged according to the laws of such State, Territory, or district.' If executed in a foreign country, it may be accord- ing to the laws of such country, and may be acknowl- edged before any notary public therein, or minister plenipotentiary, minister extraordinary, minister resi.. dent, charge d'affaires, commissioner or consul of the United States appointed to reside therein, which ac- knowledgment shall be certified thereon by the officer taking it under his hand, and if before a notary public, his seal of office should be affixed to the certificate. There is no statutory provision for the proof of deed* by subscribing witnesses out of this State. Acknowledgment Husband and Wife. State of , county of , ss. On this day of , A. D. , before me (name and title of ojffi-cer) personally came A. B. 1343. d-Comp. Laws, 1351. C-Comp. Laws, 1342 f-Comp. Laws, 1343. ACKNOWLEDGMENT. and W. B. his wife, known to me to be the persons ' who executed the foregoing instrument, and ac- knowledged the same to be their free act and deed. In testimony whereof, I have hereunto set my hand and seal the day and year above men- tioned. [Seat.] (Signature and title of officer.) MINNESOTA. Acknowledgments may be taken within the State by judges of the Supreme, District and Probate Courts, and Clerks of the same ; by Clerks of the United States District Court for Minnesota, (Laws 1877, Ch. 93, p. 1 86); by Notaries Public, Justices of the Peace, Register of Deeds, County Commissioners and Auditors, Town Clerks. City Clerks, Village Recorders (General Laws, 1878, Ch. 49, p. 193) ; seals to be affixed where - ever seals are used (G. S. 1878, Ch. 72 ; 2 Bissell, Ch. 40, Title 2, Sees. 8, 10). Acknowledgments outside of State but within United States may be taken by Chief and Associate Justices of the Supreme Court of the United States, Judges of the Supreme, Superior, Circuit or other Court of Record of any State, District or Territory, of the United States ; Clerks of above-mentioned Courts ; Notaries Public, Justices of Peace, Commissioners appointed by the Governor of this State; none of above acknowledgments to *? riid unless taken by the officer at the place or wilK'.n the jurisdiction for which he has been regularly appointed or elected to *uch office, or to which the jurisdiction of the Court for which he acts extends. (G. S. 1878, Ch. 40, amend- ing Law of 1868, Ch. 61, p. i>o.) Officers taking acknowledgment of deeds under this section shall ap- pend to such deed a certificate of such acknowledgment, with its true date, and shall date and sign such certifi- cate. (Id. Id. Sec. 8.) And unless said acknowledg- ments are taken before a Commissioner appointed by the Governor of this State for the purpose, or before a Notary Public, or Clerk of a Court, or some other officer having a seal, there shall also be attached, ap- pended or indorsed on or to said deed a certificate of the Clerk or other proper officer of a Court of Record of the District or place where 'such acknowledgment was taken, under seal, to the effect that the officer taking the acknowledgment was qualified to do so, that he is acquainted with his handwriting and believes his signature to be genuine (Id. Id. Sic. 9): Provided however that the Certificate of any section of State or Territory attached to or indorsed on said deed, to the effect that any Justice of the Peace taking the ac- knowledgment, had been duly appointed by the Gov- ernor of said State or Territory, shall be sufficient (Amended Laws 1879, Ch. 65, Sec. i). If such deed is executed outside of the United States it must be executed according to the laws of the foreign country and acknowledged before a Notary Public therein. Minister Plenipotentiary or Resident, Charge de Affaires, Commissioner, or Consul of the United States appointed for and resident therein, the same to be certified under their hand ; but if taken before a Notary Public his seal of office must be affixed. (G. S., Ch. 40, p. 328.) Provided that if such deed be duly signed and sealed in presence of two witnesses, and acknowledged as aforesaid, it shall be valid whether executed in accordance with the laws of said country or not. (Id. as amended Laws of 1868, Ch. 64, Sec. i, P- 104.) 1'ornm or Acknowledgment. The laws of 1883, chap. 99, prescribe that the following forms of acknowledgment shall be sufficient to satisfy the requirements relating to the execution and recording of conveyances and other written instruments affecting real estate : 1. Begin all acknowledgments with a caption showing the State and place ; thus: State of Minnesota, County of , ss. 2. All acknowledgments must bear the sig- nature and title of the officer taking them. 8. In case of natural persons acting in their wn right, the acknowledgment should read : Dn this day of 189 , before me personally appeared A. B. (or A. B. and C. D.) to me known to be the person (or persons) described in, and who executed the foregoing instrument, and acknowledged that he (or they) executed the same as his (or their) free act and deed. 4. In the case of natural persons acting as attorney, it should read : On this day of , 189 , before me per- sonally appeared A. B. to me known to be the person who executed the foregoing instrument in behalf of C. D. and acknowledged that he ex- ecuted the same, as the free act and deed of of said C. D. 5. In the case of corporations or joint stock associations, it should read : On this day of 189 , before me ap- S eared A. B. to me personally known, who, eing by me duly sworn (or affirmed), did say that he is the president (or other officer or agent of the corporation or association), of (describing the corporation or association), and that the seal affixed to said instrument is'the corporate seal of said corporation (or association), and that said instrument was signed and sealed in behalf of said corporation (or association), by authority of its board of directors (or trustees), and said A. B. acknowledged said instrument to be the free act and deed of said corporation (or association). 6. In case of a married woman joining her husband, Sec. 2, of Laws of 1883, reads: When a married woman unites with her hus- band in the execution of any such instrument and acknowledges the same in one of the form* above sanctioned, she shall be described in the acknowledgment as his wife, but in all other re- spects her acknowledgment shall be taken ar i certified as if she were sole ; and no scparu.e examination of a married woman in rrspect to the execution of any release or dower or other instrument affecting real -state shall be required. Deeds require two witnessea. MISSISSIPPI. In this State, acknowledgments must be made before any judge of a United States court, any judge of the State, supreme, or circuit court, any chancellor, any clerk of a court of record, who shall certify such ac- knowledgment, or proof, under the seal of his office ; or any justice of the peace, mayor of any city, town, or village, or member of the board of supervisors, whether the lands conveyed be within his county or not. Out of this State, if the party executing a convey- ance of lands in this State, is a non resident, acknowl- edgment or proof may be made and certified to by any of the judges of the supreme court of the United States, or a district judge of the United States, or justice of the supreme court or superior court of any State or Territory of the Union ; or any justice of the peace, whose official character shall be certified to under the seal of some court of record in his county ; or before any commissioner residing in such State or Territory, who may be appointed by the governor of this State to take acknowledgments and proof of deeds and other conveyances, or notary public or cleik of a court of record having a seal of office." A married woman, party to the conveyance, need not be examined apart from her husband. The certificate of acknowledgment of a deed need not state that the wife relinquishes her dower, dower and courtesy having been abolished in the State. In order to admit a deed to record, one of the wit- nesses thereto must make affidavit in the following form : " C. D., one of the subscribing witnesses to the foregoing instrument, who being first duly sworn, de- poses and says he saw the within A. B.. whose name is subscribed thereto, sign and deliver the same to E. F. (or that he heard the said A. B. acknowledge that he signed and delivered the same to said E. F.), and that the said C. D., affiant, subscribed his name as a wit- ness thereto in the presence of the said A. B." c In all cases the officer taking the acknowledgment must add his signature and title, and affix his seal if he have one. Acknowledgment Husband and Wife. State of , county of , ss. Personally appeared before me (here insert name and title of officer), the within-named A. B. and W. B. his wife, who acknowledge that they signed, and delivered the foregoing deed (or other conveyance), as their voluntary act and deed, on the day and year therein mentioned. Given under my hand this day of , A. D. (Signature and title of officer.) Or the acknowledgments may be certified separately. B-Code of 1892, 2 2464. b-Id. I 2466. C-Id. I 2465. ACKNOWLEDGMENT. Proof by Subscribing Witness May be made when the grantor is unable or unwill- ing to acknowledge any instrument affecting real estate executed by him. MISSOURI. Conveyances, etc., must be acknowledged, if exe- cuted in this State, before a court having a seal, or lome judge, justice, or clerk thereof, notary public, or justice of the peace of the county where the estate lies ; if executed out of this State, then before a commis- sioner of this State, notary public, court of record of the United States or of any State or Territory having a seal, or clerk of any such court; and if executed in a foreign country, then before any court of any state, kingdom, or empire having a seal, or the mayor or chief officer of any city or town having an official seal, or be- fore a minister or consul of the United States, or a notary public having a seal. The acknowledgment of the officers executing for the corporation should be certified, according to the form first above given, modifying it to describe the office and that the act is the act of the corporation by the officer or officers executing. The form of certificate of ac- knowledgment by a trustee or person not acting in his own right, should be as in the form first above given, modified to show the character of the grantor and that the act is done in that character. Acknowledgment General Form. State of , county of , 83. On this day of 189 , before me personally appeared and his wife, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that executed the same as free act and deed. In testimony whereof, I have hereunto set my hand and affixed my official seal at my office in , the day and year first above written. My term expires 189 . If person making acknowledgment is unmarried, omit "and his wife," and add, and the said fur- ther declare to be single and unmarried. Acknowledgment By Attorney. On this day of , 18 , before me person- ally appeared A. B., to me known to be the per- son who executed the foregoing instrument in behalf of C. D. , and acknowledged that he exe- cuted the same as the free act and deed of said C. D. Acknowledgment Corporations. On this day of 18 , before me ap- peared A. B. to me personally known, who, being by me duly sworn (or affirmed), did say that he is the president (or other officer or agent of the corpora- tion or association) of (describing the corporation or association), and that the seal affixed to said instru- ment is the corporate seal of said corporation (or association), and that said instrument was signed and sealed in behalf of said corporation (or asso- ciation), by authority of its board of directors (or trustees), and said A. B. acknowledged said in- strument to be the free act and deed of said cor- poration (or association). (In case the corporation or association has no corpo- rate seal, omit the words "the seal affixed to said in- strument is the corporate seal of said corporation (or association), and that," and add at the end of the affidavit clause the words, "and that said corpora- tion (or association) has no corporate seal.") ; In all cases add signature and title of the officer tak- ing the acknowledgment.) Married Women. When a married woman unites with her husband in the execution of any such instrument, and acknowl- edges the same in one of the forms above sanctioned, she shall be described in the acknowledgment as his wife, but in all other respects her acknowledgment shall be taken and certified as if she were sole ; and no separate examination of a married woman in respect to the execution of any release or dower, or other instru- ment affecting real estate, shall be required. m-Gen. Stat. 444, 445. n-Gen. Stat. 444-446 o-See General Statutes, pp. 396, */. tiq., 443, g 50, p. 617, \ i. Proof by Subscribing Witness. If all the subscribing witnesses are dead or cannot be had, then proof can DC made by at least two credible witnesses proving the handwriting of the grantor, and two or more credible witnesses proving the Handwriting of at least one of the subscribing witnesses. n JIO.VI'AXA. Every conveyance in writing of or affecting real property must be acknowledged or proved and certified as hereafter stated. The proof or acknowledgment may be made, within the Territory, before the secr~- tary of the Territory, some judge or clerk of a court having a seal, a notary public, or justice of the peace, the county clerk and ex officio county recorder ; with- out the Territory, but within the United States, by some judge or clerk of any court of the United State*, or any State or Territory having a seal, a notary public, a justice of the peace, or commissioner appointed by the governor of the Territory for that purpose. If taken by a justice of the peace, his official character must be certified to under the seal of the court, tribunal, or officer within and for the county in which such justice of the peace may be acting, which has cognizance of his official character.* Acknowledgment General Form. State (or Territory) of , county of , sa. On this day of , A. D. , personally appeared before me (name and title of offictr), in and for said county, A. B., personally known to me (or satisfactorily proved to me by the oath of W. T , a competent and credible witness for that purpose by me duly sworn) to be the person described in and who executed the foregoing instrument, and who ac- knowledged to me that he executed the same freely and voluntarily and for the uses and pur- poses therein mentioned. Witness my hand and seal. [Seal. ] (Signature and title of officer.) Acknowledgment Married Woman. State (or Territory) of , county of , ss. On this day of , A. D. , personally appeared before me (name and quality of officer), in and for said county, W. B., wife of A. B., per- sonally known to me (or satisfactorily proved to me by the oath of, etc.) to be the person whose name is subscribed to the foregoing instrument, and who, after being by me first made acquainted with the contents of said instrument, acknowl- edged to me on examination, separate, apart from, and without the hearing of her said husband, that she executed the same freely and voluntarily, without fear or compulsion, or undue influence of her said husband, and that she does not wish to retract the execution of the same. 'Witness my hand and seal. {Seal. ] (Signature and title of officer. ) If deed be executed by a corporation, the certificate should state that the officer executing was personally known as such, and that the instrument was executed fully, etc., as the act and deed of the corporation. 4 NEBRASKA. Acknowledgments or proofs of conveyances may be taken in the State by judges, clerks of courts, justices of the peace, and notaries public. The certificate of acknowledgment must be indorsed on the instrument, and show that the grantor acknowledged the same to be his voluntary act and deed, and that the officer taking the acknowledgment knew him to be the same person whose name was signed thereto, or had satisfactory evidence of that fact. If the grantor die before ac- knowledgment, or if for any cause his attendance cannot be procured to make the acknowledgment, or if he re- fuses to make it, proof of execution and delivery may be made by any competent subscribing witness thereto, before any officer authorized to take the acknowledg- ments ; or if all the subscribing witnesses are out of the State, proof may be made by proving the handwriting of the grantor and of any subscribing witness. The deed, with the certificate of acknowledgment or proof, must be recorded in the county where the lands lie. Acknowledgments or proofs taken out of the State, and in the United States, must be taken in con- formity to the law of the State or Territory in which taken, or by a commissioner of this State for that pur- pose. All such acknowledgments or proofs last men- tioned taken by an officer having no seal of office, must be accompanied with a certificate of a cleric of a court ACKNOWLEDGMENT. of record, or other proper officer of the district, under official seal, that the officer taking the same was the same as represented therein at the date thereof, that the an official certificate of the secretary of Nebraska, stating that the commissioner was at the time duly authorized to take the same, and that the secretary is INO separate examination is requireu in uiniug wiic b acknowledgment. Her deed may be acknowledged or proved same as a married man's. When proof of execu- tion in lieu of acknowledgment is permitted, the same may be made by a subscribing witness thereto, who must state upon oath his own place of residence, that he set his name to the deed as a witness, that he knew the grantor in such deed, and saw him sign or heard him acknowledge that he had signed the same. And such proof shall not be taken unless the officer is personally acquainted with such witness, or has satisfactory evi- dence that he is the same person who was a subscribing witness to such deed. 1 " It shall be lawful for any corporation to convey lands by deed, sealed by the common seal of said cor- poration, and signed by the president or presiding officer of the board of directors of the corporation ; and such deed, when acknowledged by such officer to be the act of the corporation, or proved in the usual form pre- scribed for other conveyances for hinds, shall be recorded in the clerk's office of the county in which the lands lie, in like manner as other deeds." "> Acknowledgment Husband and Wife. State of , county of , ss. On this day of , A. D. , before me (state name and title of officer), duly appointed, commissioned (or duly elected), and qualified for and residing in said county, personally appeared \. B. and W. B. his wife, to me personally (Cnown(o7"by the oaths of [one or more] witnesses whose names are hereto subscribed, satisfactorily proved), to be the identical persons described in, and whose names are affixed to the foregoing conveyance as grantors, and they severally acknowledged the same to be their voluntary act and deed. In testimony whereof, I have hereunto set my hand and official seal at , in said county, the day and year last above written. [Seal.\ (Signature and title of officer.) Proof by Subscribing- Witness. State of , county of , as. On this day of , A. D. , it satisfac- torily appearing to me that the attendance of the said A. B., the grantor in the foregoing convey- ance, cannot be procured in order to make ac- knowledgment thereof (or that the said A. B., the grantor, etc., is dead, or, having executed and delivered the foregoing conveyance refuses to make acknowledg- ment thereof) before me (here insert name and title of officer), duly appointed, commissioned, and qualified for and residing in said county, person- ally appeared W. T., to me personally known (or by the oaths of [one or more\ witness, whose name is hereto subscribed, to me satisfactorily proved) to be the identical person whose name is subscribed to the foregoing conveyance as attesting witness, who being first duly sworn, on his oath says that his place of residence is at , in the county of , and State of , that he set his name to the foregoing conveyance as a witness ; that he knew A. B., the grantor in said conveyance, and that he knew A. B. to be the identical person described therein, and who executed the same, and saw him sign (or heard him acknowledge that he had signed) the same. In testimony whereof, I have hereunto set my fc-Rev. Stat. ch. 43. 1-Rev. Stat. p. 281, \ j. m-Rev. Stat. p. 234, 1 137. n-See General Statutes. hand and seal at , in said county, the day and year last above written. [Seal. } (Signature and title of officer. ) NEVADA. Every conveyance in writing affecting real estate within this State shall be acknowledged or proved, and certified as follows: If within this State, before some judge or clerk of a court having a seal, or some notary public or justice of the peace. If without the State, but within the United States, before a judge or clerk of a court having a seal, or some notary public or justice of the peace, or by any commissioner appointed by the governor of this State for that purpose ; when, taken before a justice of the peace, it shall be accom- panied by the certificate of the clerk of a court of record of the county having a seal, showing the official char acter of the justice, and the genuineness of his signature. If taken without the United States, it shall be before some judge, or clerk of a court of a State, kingdom, or empire having a seal, or a notary public therein, or by a minister, commissioner, or consul of the United States appointed to reside therein." Proof of the execution of a conveyance shall be made, first, by the testimony of a subscribing witness; second, when all the subscribing witnesses are dead, or cannot be had, by evidence of the handwriting of the party, and of at least one subscribing witness, given by a credible witness to each signature, under oath." The certificate of acknowledgment or proof must be under the hand and seal of office when taken by a judge or clerk, or an officer having a seal of office." Acknowledgment Husband and Wife. State of , county of , ss. On this day of , A. D. , personally appeared before me (name and title of officer), in and for said county, A. B. and W. B. his wife, whose names are subscribed to the conveyed in- strument as parties thereto, personally known to me to be the individuals described in and who executed the said annexed instrument as parties thereto, who each acknowledged to me that they, each of them respectively, executed tne same freely and voluntarily, and for the uses and purposes therein mentioned. And the said W., wife of the said A. B., having been by me first made acquainted with the contents of said in- strument, acknowledged to me on examination, apart from and without the hearing of her said husband, that she executed the same freely and voluntarily without fear or compulsion, or undue influence of her said husband, and that she does not wish to retract the execution of the same. In testimony whereof, I have hereunto set my hand land affixed my official seal), the day and year first above written. [Sra/.] (Signature and title of officer.) When tVie grantor is unknown to the court or officer, the certificate that he was "satisfactorily proved to be the person described in, and who executed the annexed instrument, by the oath of W. T., a com- petent and credible witness for that purpose by me duly sworn," and the said A. B. acknowledged, etc. Proof by Subscribing 1 Witness. The certificate of proof by a subscribing witness shall set forth, first, that such subscribing witness was per- sonally known to the officer granting the certificate to be the person whose name is subscribed to such con- veyance as a witness thereto, or was proved to be such by the oath of a witness whose name shall be given in the certificate ; second, the proof given by such witness of the execution of such conveyance, and of the fact that the person whose name is subscribed to such convey- ance as a party thereto is the person who executed the same, and that such witness subscribed his name to such conveyance as a witness thereof." NEW HAMPSHIRE. All conveyances of real estate must be signed and sealed by the party granting the same, attested by two or more witnesses, acknowledged by the grantor before a justice, notary public, or commissioner, whether within or without the State (but if before a justice without the State his official character should be authen- ticated by the clerk of a court of record or by the secre- tary of state), or before a minister or consul of the United States in a foreign country, and recorded at length in the registry of deeds in the county in whick ACKNOWLEDGMENT. the lands are situated. No separate acknowledgment is required to be made by the wife, nor need she be examined apart from her husband. When the title is in the wife, the husband must acknowledge the deed in connection with her ; joining in the conveyance, except the estate is held by the wife " in her own right to her sole and separate use free from the interference or con- trol of her husband," in which case she may convey alone, although the husband's signature is even then preferable. The husband need not covenant as the warranty, but releases his right by courtesy under the statute. The identity of the grantors need not be certified by the magistrate, but if controverted, must be proven, like any other disputed matter. The official character of the person taking the ac- knowledgment must be certified to in the same manner as that of persons taking depositions. P Acknowledgment Husband and Wife. State of , county of , ss. Personally appeared the above-named A. B. and W. B. his wife, and acknowledged the fore- going instrument to be their voluntary act and deed. Before me this day of , A. D. . (Signature and title of officer.) The certificate of acknowledgment need not state that the wife relinquishes her dower. She releases her dower in the deed, but need not covenant in the warranty. The above form is sufficient in all cases. Any public or private corporation, authorized to hold real estate, may convey the same by any agent elected for that purpose and he shall convey, in his said capacity, and acknowledge the conveyance in the or- dinary form, as above. No proof by a subscribing witness will be ad- mitted in evidence unless taken in the usual form of a deposition and upon due notice. NEW JERSEY. Acknowledgment and proof of deeds, mortgages, etc., must be made, within this State, before the chan- cellor, a justice of the supreme court, a master in chancery, judge of the court of common pleas, sur- rogate, register or commissioner of deeds ; out of this State, before a judge of the United States supreme or district court, chancellor of State or Territory where taken ; judge of supreme, superior, circuit, or district court of the State (all the above without the seal of such officer or court) ; a mayor or other chief magis- trate of a city, under the seal of said city ; a master in chancery of New Jersey ; a commissioner of deeds for New Jersey residing in said State or Territory, under his seal ; a judge of the court of common pleas or any officer authorized by the laws of said State or Territory to take acknowledgments of deeds of lands in and for such State or Territory ; provided, that if taken before such common pleas judge, or other officer, there shall be annexed a certificate under seal of the State, Territory, or court of the county in which it is made, that the per- son before whom such acknowledgment is made is such officer and is authorized by the laws of such State or Territory to take acknowledgments, and that his signature is genuine.. Acknowledgments and proofs by persons in foreign kingdoms may be made before any court of law, mayor, or other chief magistrate of any city, borough, or corporation, of said foreign kingdom, certified by said court, mayor, or other chief magistrate, in the manner such acts are usually authenticated ; or before any am- bassador, public minister, charge, d'affaires, or other representative of the United States, any consul or vice- consul for the time being, certified under the official seal of said consul or vice-consul; or before a master in chancery of New Jersey. 1 The identity of the grantor must be established to the satisfaction of the officer; he must certify that he is satisfied. An examination of the wife separate from her hus- band is necessary. Signature of wife must be acknowl- edged ; it cannot be proved by subscribing witness. Acknowledgment Husband and Wife. State of , county of , ss. Be it remembered, that on this day of , A. D. , before me, the subscriber (here insert name and title of officer), personally appeared A. B. and W. B. his wife, who I am satisfied are the O-G. S.p. 338; 39 N. H. pp. 202-204; 45 Id. p. 454. 3 grantors named in and who executed the within instrument of conveyance, and I having first made known to them the contents thereof, they did thereupon severally acknowledge before me that they signed, sealed, and delivered the same as their voluntary act and deed for the uses and purposes therein expressed ; and the said W. B., wife of the said A. B., being of full age, and by me privately examined separate and apart from her said husband, did further ac- knowledge that she signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threat or compulsion of or from her said husband. In testimony whereof, I have hereunto set my hand and affixed my official seal the day and year aforesaid. [Sea/.] '(Signature and title of officer.) ^ Acknowledgment Corporation. i. he deed of a corporation must be executed by a officer with express authority. The form is as follows : " In witness whereof, the said (the corporation) hath caused its corporate seal to be affixed and its president (or other execu- tive officer) to sign his name to these presents, the day and year first above written." State of New Jersey, county of , ss. Be it remembered, that on the day of , in the year of our Lord one thousand eight hun- dred and , before me, M. C., a master of the court of chancery of the State of New Jersey, personally appeared S. Y., to me known, who being by me duly sworn according to law, on his oath doth depose and say : that he is (the secretary or other officer) of (the corporation), the grantors in the foregoing deed named ; that the seal affixed to the said deed is the corporate seal of the said (corporation); that it was so affixed by order of the said (corporation), that P. P. is the (president or other executive officer) of the said (corporation): that he saw the said P. P., as such (president, etc.) sign the said deed, and heard him declare, that he signed, sealed, and delivered the same as the voluntary act and deed of the said (name of cor- poration) by their order ; and that this deponent signed his name thereto, at the same time, as a subscribing witness. Subscribed and sworn before me, the day and year above written. (Signature and official title.) Proof by Subscribing Witness. State of , county of , ss. Be it remembered, that on this day of , A. D. , personally appeared before the sub- scriber, a (name and title of officer), W. T.,who being by me duly sworn according to law, on his oath saith, that he saw A. B., the within-named grantor, sign, seal, and deliver the within inden- ture, as his voluntary act and deed, and that he, the said W. T. , subscribed his name to the same, at the same time, as an attesting witness. (Signed) W. T. Sworn, and subscribed before me this day of , A. D. . In testimony whereof, I hava hereunto set my hand and affixed my official seal the day and year aforesaid. [&/.] (Signature and title of officer. .] NEW MEXICO. of the Territory, and in the United States, before any United States court, the judge or clerk of any State or Territorial court having a seal, the clerk thereof to certify to the official character and genuineness of sig- nature of the judge under the seal of the court, or a notary public with a seal. Out of the United States, before any court of any State, kingdom, cr empire having a seal, or before the magistrate or supreme power of any city having a seal, before any court of record having a seal, before any notary public having a seal, before any consul or vice-consul of the United States having a seal, or before the judge of any court of record having a seal. In the last case the genuine- ness of the signature and official character to be certified by some officer having a seal of office. All p-G. S. p. 251- q-See Nixon's Digest, 144, // sey., and General Statutes. ACKNOW LEDG M ENT. persons taking foreign acknowledgments must have their identity certified in the usual manner for establish- ing the identity of a foreign official. 1 ! The examination of the wife, separate, apart, and independent of her husband is not necessary ; the wife, however, is to be described as such. The deed of a corporation is acknowledged by the officer authorized by the by-laws to make it, and the corporate seal, if any, must be affixed to the certificate. Sub. 3, sec. i. Laws of 1889. Acknowledgment Husband and Wife. Territory of New Mexico, county of , ss. On this day of in the year eighteen hundred and , before me personally ap- peared A. B. (or A. B. and C. D. ; or A. B. and his wife E. F.) to me personally known, and known to me to be the same person (or persons) described in, and who executed the foregoing instrument, and he (she or they) thereupon ac- knowledged to me that he (she or they) executed the same as his (or their) free act and. deed. 'Witness my hand and notarial (or official; seal at said county of , the day and year last above written. (My commission expires , A. D. [Sea/.] (Signature and official titled) NEW YORK. A conveyance, to be recorded by a county clerk, must be acknowledged by the party executing the same, or be proved by a subscribing witness thereto, as follows : Conveyances executed within the State must be ac- knowledged before judges of courts of record within the jurisdiction of their respective courts, county judges, surrogates, notaries public, and justices of peace at a place within their counties, mayors, recorders, and commissioners of deeds of cities within their respective cities. Without the State, before judges of United States courts, judges of the supreme, circuit, or superior court of any other State or Territory, at a place within the jurisdiction of their courts ; before the mayor of any city, or before a New York commissioner, provided the certificate of such commissioner is accompanied by the certificate of the secretary of state of New York, at- testing the existence of the officer, and the genuineness of his signature. When taken before commissioners of the State of New York, their certificate must state the day on which, and the city, town, and county within which, such proof and acknowledgment is taken.' When made by any person residing out of the State, and within the United States, it may be taken before any officer of the State or Territory where made, authorized by its laws to take proof or acknowledgment, but the officer taking the same must know, or have satis- factory evidence, that the person making it is the indi- vidual described in, and who executed the instrument, and such officer must also attach a certificate, under the name and official seal of the clerk, register, recorder, or prothonotary of the county in which such officer resides, or any clerk of the court thereof, having a seal, specifying that such officer was, at the time of taking such proof or acknowledgment, duly authorized to take the same, and that such clerk, register, recorder, or prothonotary, is well acquainted with the handwriting of such officer, and verily believes that the signature to said certificate of proof or acknowledgment is genuine, and that such conveyance is executed and acknowledged m accordance with the laws of such State." In Canada, before judges of the highest courts, or the mayor of any city, and by any consul, vice-consul, deputy consul, consular agent, vice-consular agent, commercial agent, and vice-commercial agent of the United States, certified by him, under his seal of office, or the seal of the consulate to which he is attached. When taken before a judge of a court of record, a cer- tificate must be attached, under the name and official seal of the clerk of the court, that there is such a com t : |-See General Statutes. r-Laws, 1850, ch. 270; Laws, 1857, ch. 788. s-Laws, 1848, ch. 195; Laws, 1867, ch. 557. t-Laws, 1870, ch. 208. u-i R. S. 738. V-Laws, 1833, ch. 271, g 9. w-i R. S. 758, gg; n that the judge before whom the proof or acknowledg. ment is taken is a judge (hereof; that such court has a seal ; that he is the cierk thereof; that he is well ac- quainted with the handwriting of such judge, and be- lieves his signature genuine.' In all cases the certificate of proof or acknowledg- ment must show that the officer taking the same either knows, or has satisfactory proof, that the person making such acknowledgment or proof is the same individual described in, and who executed the instrument, or a subscribing witness thereto. When the execution is by a married woman within the State, the certificate must state a private examination." Acknowledgment or proof of conveyance by a non-resident married woman, joining with her husband, may be made as if she were sole." No private examination is necessary, but, other- wise, the certificate of the officer must comply with the requirements of certificates in this State. Every written instrument, except promissory notes, bills of exchange, and the last wills of deceased persons, may be proved or acknowledged, and read in evidence on the trial of any action, with the same effect and in the same manner as conveyances of real estate. T Where the execution of a conveyance is acknowledged by the party in person, the officer taking the same should certify to the identity." Where the execution is proved by a subscribing wit- ness, he must state his own place of residence, and that he knew the person described in and who executed the conveyance. 1 Upon the application of any grantee in any convey- ance, or of any person claiming under or through him, verified by oath, that a subscribing witness, residing in the county where the application is made, refuses to ap- pear and testify, any officer authorized to take proofs or acknowledgments, except commissioners of deeds and justices of the peace, may issue a subpoena requiriig such witness to appear and testify before him.T Wherever erasures or interlineations occur in any conveyance, they should be noted before the execution, or mentioned in the certificate of the officer taking the proof or acknowledgment.* Acknowledgment General Form. Party known to the officer. Where a deed is acknowledged in this State, to be used or recorded in another State, the certificate should be headed with name of the State, as well as of the county. If the instrument, the execution of which is to b acknowledged, is not a deed, it should be described as a "mortgage," "bond," " letter of attorney," " assign- ment," " instrument in writing," or whatever the case may require : with this alteration, the succeeding forms will be found sufficient in the transaction of ordinary business. State of , county, ss. On this day of , A. D. , before me personally came A. B., to me known to be the person described in, and who executed the within (or above, orannexed) conveyance, and he acknowl- edged that he executed the same for the purposes therein mentioned. (Signature of the officer taking the acknowledgment, with his official title at length.) Another form. State of v county, ss. On this day of , A. D. , before me personally came A. B., to me known to be tha individual described in, and who executed the within (or above, or annexed; conveyance (or instru- ment), and acknowledged that he executed thf. same for the purposes therein mentioned. (Signature and title of officer.} Acknowledgment Oeneral Form. Identity of party is proven to the officer. If the person by whose oath the identity is established is not a subscribing witness the words in italic in thi and the following forms should be omitted. State of , county, ss. On this day of , A. D. , before me (name and title of officer), personally came A. B., . proven to me satisfactorily to be the same person \ described in, and who executed the within con- ! veyance, by the oath of S. W. (subscribing witnest I Johns. 434; 2 Cowen, 552; 4 Wend. 561. X-i R. j S. 758, I 12; 7 Wend. 364.; i Hill, 121. y-i R. S. I 758, $) 13, 14. z-8 Cowen, 71 ; 7 Wend. 364. ACKNOWLEDGMENT. 33 (hertto), who, being by me du!y sworn, did depose and say, that he resides in the village of , (or town of ), county of ; that he is acquainted with the said A. B., and that he knew him to be the same person described in and who executed the within conveyance ; and thereupon the said A. B. acknowledged that he executed the same. O. R. (official title.) Acknowledgment Husband and Wife. Within the State ; known to the officer. State of , county, ss. On this day of , A. D. , before me personally came A. B. and W. B. his wife, to me known to be the individuals described in, and who executed the within (or above, or an- nexed) conveyance (or instrument), and severally acknowledged that they executed the same for the purposes therein mentioned. And the said W. B., on a private examination by me made, apart from her husband, acknowledged that she executed the same freely, and without any fear r compulsion of her said husband. (Signature and title of officer.) Acknowledgment Husband and Wife. Known to the officer. State of , county, ss. On this day of , A. D. , before me personally came A. B. and W. B. his wife, to me known to be the persons described in, and who executed the within conveyance, who acknowl- edged that they executed the same ; and the said W. B. acknowledged, on a private examination by me made, apart from her husband, that she executed the said conveyance freely, and without any fear or compulsion of him. C. D., Commissioner of Deeds in and for said county. Acknowledgement Husband and Wife. Proven to the officer. State of , county, ss. On this day of , A. D. , before me, 1. P., a justice of the peace in and for said county, personally came A. B. and W. his wife, both proven to me satisfactorily to be the same persons described in, and who executed the within conveyance, by the oath of S. W. (subscrib- ing -witness thereto), who being by me duly sworn, did depose and say, that he resides in the town of fc in said county ; that he is acquainted with the said A. B. and W. his wife, and that he knew them to be the same persons described in, and who executed the within conveyance ; and, there- upon, they severally acknowledged befcre me that they executed the same; and the said W. acknowledged, on a private examination by me made, apart from her husband, that she executed the said conveyance freely, and without any fear or compulsion of him. J. P., Justice of the Peace. Acknowledgment Husband and Wife. Husband known, and Wife proven to the officer. State of , county, ss. On this day of , A. D. , before me personally came A. B. and W. his wife ; the said A. B. being Known to me to be the same person described in, and wno executed the witnin con- veyance; and the said W. being proven to me satisfactorily to be the same person described in, and who executed the within conveyance, by the oath of S. W. (subscribing witness thereto), who bei..g by me duly sworn, did depose and say, that he resides in the town of , in said county; that he is acquainted with the said W., the wife of the said A. B., and that he knew her to be the same person described in, and who executed the said conveyance; and, thereupon, the said A. B. and the said W. his wife, severally acknowl- edged that they executed the same ; and the said W. acknowledged, on a private examination by me made, apart from her husband, that she exe- cuted the said conveyance freely, and without any fear or compulsion of him. C. C. , Commissioner , etc '. Acknowledgment By two Husbands and their Wives. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came A. B. and W. his wife, and C. D. and W. W. his wife, known to me to be the individuals described in, and who executed the within conveyance, and acknowledged they executed the same; and the said W. and W. W., severally, each for herself, acknowledged, on a private examination by me made, apart from her husband, that she executed the same freely, without any fear or compulsion of him. J- P-> Justice of the Peace. Acknowledgment By Wife in a sepa- rate Certificate. State of , county, ss. On this day of , A. D. , before m (name and official title'), personally came W. B., wife of A. B., described in the within convey- ance, the said W. being known to me to be the individual described in, and who executed the said conveyance, and she acknowledged, on a private examination by me made, apart from her husband, that she executed the same freely, without any fear or compulsion of him. J. P., Justice of the Peace. Acknowledgment By two or more Parties. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came A. B. and C. D., to me known to be the individuals de- scribed in, and who executed the within con- veyance, and they severally, each for himself, acknowledged that they executed the same. J. P., Justice of the Peace. Acknowledgment By five Persons. Three known and two identified. State of , county, ss. On this day of , A. D. , before rwe (name and official title), personally came A. B., C. D., and E. F., to me known to be three ol the individuals described in, and who executed the within conveyance ; and also came G. H. and I. J., satisfactorily proven to me to be two of the individuals described in, and who executed the within conveyance, by the oath of S. W. (sub- scribing witness thereto), who being by me duly sworn, did depose and say, that he resides in the town of , in said county ; that he is acquainted with the said G. H. and I. J., and that he knew them to be two of the individuals described in, and who executed the within conveyance : and thereupon the said A. B., C. D., E. F., G. H., and I. J. severally acknowledged before me that they executed the same for the purposes therein men- tioned. J. P., Justice of the Peace. Acknowledgment By one of several Parties. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came A. B., to me known to be one of the individuals described in, and who executed the within conveyance, and acknowledged that he executed the same. J. P., Justice of the Peace. Acknowledgment By Attorney. State of county, ss. On cms day of , A. D. , before me (name and official title), personally came A. A., known to me to be the same person described in, and who executed the within conveyance, and acknowledged that he executed the same as the act and deed of A. B. , therein described, by virtus of a power of attorney duly executed by the said A. B., bearing date the day of , in the year , recorded in the office of the clerk of the county of , in Book of Powers of Attorney, page , on the day of , in the year . J. P., Justice of the Peace. Acknowledgment By Attorney. Known to the officer. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came A. A., known to me to be the attorney in fact of A. B.. the individual described in, and who executed the within conveyance by his said attorney ; and the said A. A. acknowledged that he executed the same as the act and deed of the said A. B. J. P. , Justice of the Peace, ACKNOWLEDGMENT. Acknowledgment^- By Attorney. Proven to the officer. State of , county, ss. On this day of , A. D. , before me <,name and official title), personally came A. A., proven satisfactorily to me to be the same person described in, and who executed the within con- veyance as the attorney in fact of A. B., by the oath of S. \V. {subscribing -witness thereto), who being by me duly sworn, did depose and say, that he resides in the town of , in said county ; that he is acquainted with the said A. A. , and that he knew him to be the individual de- scribed in, and who executed the said convey- ance as the attorney in fact of A. B., and there- upon the said A. A. acknowledged before me that he executed the same as the act and deed of the said A. B. J. P., Justice of the Peace. Acknowledgment To confirm Deed. Executed during Infancy. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came A. B., to me known to be the individual described in, and who executed the within conveyance, and there- upon duly acknowledged that the said convey- ance was formerly executed by him when he was an infant under the age of twenty-one years ; that he has since arrived at full age, and is de- sirous of confirming his former execution thereof; and that he now acknowledges that he executed the sa.ne as and for his act and deed. J. P., Justice of the Peace. Acknowledgment By an Executor or Trustee. State of , county, ss. On this day of , A. D. , before me 'name and official title"), personally came E. X., jrnown to me to be the executor of the last will and testament (or trustee of the estate) of M. D., mentioned and described in the within convey- ance, and the said E. X. acknowledged before me that he executed the same as such executor (or trustee), as aforesaid. J. P., Justice of the Peace. Proof of Deed. Executed by a Monied Corporation. State of , county, ss. On this day of , A. D. , before me (name and title of officer), personally came P. P., the president of the - County Bank, to me known, who, being by me duly sworn, did depose and say, that he resides in the village of , in said county; that he is the president of the County Bank ; that he knows the corporate seal of the said bank ; that the seal affixed to the within conveyance is such corporate seal ; that it was so affixed by order of the board of directors of the said bank ; and that he signed his name thereto by the like order, as president of said bank. (If the conveyance is proven by a cashier, or the secretary of a company, and executed by him and the president, substitute secretary, or cashier, for president, and the name of the company for the bank, in the foregoing, and then add: And he, the said P. P., further says, that he also knows S. W., the president of the said bank (or company), and that the signature of the said S. W., subscribed to the said conveyance, is in the genuine handwriting of the said S. W., and was thereto subscribed in the presence of the said P. P., by the like order of the said board of directors.) J. P., Justice of the Peace. Proof of Deed. By a Religious Corporation. State of , county, ss. On this day of , A. D. , before me (name and title of officer), personally came C. C., to me known, who, being by me duly sworn, did depose and say, that he resides in the town of , in said county, and is the clerk of the Cor- poration of the Rector, Churchwardens, and Vestrymen of the Protestant Episcopal Church of St. Paul (or, the Corporation of the Trustees of the First Methodist Episcopal Society), in the town of aforesaid ; that the seal amxed to the within Conveyance is the corporate seal of the said cor- poration, and that it was affixed by order of the said corporation. (If nectssary, add clause proving the handwriting of the subscribers to the conveyance.) J. P., Justice of the Peace. Acknowledgment By a Sheriff. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came S. F., sheriff (or late sheriff) of the county of , to me known to be the same person described in, and who executed the within conveyance, and ac- knowledged that he executed the same as such sheriff. J . P. , Justice of the Peace. Acknowledgment By a Deputy Sheriff. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came D. S.,' known to me to be the individual described in, and who executed the within conveyance, as the general deputy of S. F., sheriff of the county of , and acknowledged that he executed the said conveyance as such general deputy as aforesaid. J. P., Justice of the Peace. Proof within the State, by Subscribing Witness. Known to the officer. State of , county, ss. On this day of , A. D. , before me personally came W. T., subscribing witness to the within (or above, or annexed) conveyance (or instrument), with whom I am personally ac- quainted, who being by me duly sworn, said that he resided in the city of , that he was ac- quainted with A. B., and knew him to be the person described in, and who executed the said conveyance (or instrument) ; and that he saw him execute (and deliver) the same; and that he ac- knowledged to him, the said W. T. , that he exe- cuted (and delivered) the same, and that he, the said W. T., thereupon subscribed his name as a witness thereto. (Signature and title of officer.) Certificate of Proof. By Subscribing Witness known to the officer. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came W. T., subscribing witness to the within conveyance, to me known, who being by me duly sworn, did de- pose and say, that he resides in the town of , in said county; that he knows A. B., the indi- vidual described in, and who executed the said conveyance ; that he was present and saw the said A. B. sign, seal, and deliver the same as and for his act and deed, and that the said A. B. then acknowledged the execution thereof ; whereupon the said W. T. became the subscribing witness thereto. J. P., Justice of the Peace. Acknowledgment By Subscribing Witness. Proven to the officer. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came E. F. and S. W., and the said E. F., to me known, having been by me duly sworn, did depose and say, that he resides in the town of in said county; that he is acquainted with the said S. W., the subscribing witness to the within conveyance, and that he knew him to be the same person, which is to me satisfactory evidence thereof; and the said S. W., being by me duly sworn, did depose and say, that he resides in the town of , in the county of , and knows A. B., the individual described in, and who executed th said conveyance ; that he was present and saw the said A. B. execute the same, and that he, the said S. W., thereupon became the subscribing witness thereto. J. P., Justice of the Peace. Acknowledgment By Subscribing Witness. Grantors residing in another State. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came S. W . , to me known, who being by me duly sworn, did de- pose and say, that he resides in the town of , in said county; that he knows A. B. and W. his wife, the individuals described in, and who ew- ACKNOWLEDGMENT. 35 cuted the within conveyance ; that they severally reside in the town of , in the State of , that he was present and saw them sign, seal, and deliver the said conveyance, as and for their act and deed, and that he thereupon became the subscribing witness thereto. J. P. , Justice of the Peace. Acknowledgment By Subscribing' Witness. Proven to the officer. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came E. F. and S. W. ; and the said E. F., to me known, having been by me duly sworn, did depose and say, that he resides in the town of , in said county ; that he is acquainted with the said S. W., the subscribing witness to the within conveyance, and that he knew him to be the same person, which is to me satisfactory evidence thereof; and the said S. W., being by me duly sworn, on his oath said, that he resides in the town of , in the State of , that he knows A. B. and W. his wife, the individuals described in, and who exe- cuted the within conveyance ; that they severally reside in the town of , in the State of , that he was present and saw them sign, seal, and deliver the said conveyance, as and for their act and deed, and that he thereupon became the sub- scribing witness thereto. J. P., Justice of the Peace. Acknowledgment By Subscribing Wit- ness as to the Husband. And Acknowledgment by the Wife, both being known to the officer. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came S. W., to me known, who being by me duly sworn, did de- pose and say, that he resides in the town of , in said county; that he knows A. B. , one of the individuals described in, and who executed the within conveyance ; that he was present and saw the said A. B. execute the same, and that he, the said S. W., thereupon became the subscribing witness thereto. At the same time, also ap- peared before me, W. B., the wife of the said A. B., to me personally known, who, on a private examination by me made, apart from her hus- band, acknowledged that she executed the within conveyance freely, without any fear or compul- sion of her said husband. J. P., "Justice of the Peace. Acknowledgment By Subscribing Wit- ness as to the Husband. And Acknowledgtnent by the Wife, both proven to the officer. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came S. W.,to me known, etc. (Follow the preceding form to the end, omitting the -words " to me personally known" in the acknowledgment of the wife, and then add ) : And at the same time, also appeared before me E. F., to me personally known, who being by me duly sworn, did depose and say, that he resides in the town of , in the county of , that he knows the said S. W. to be the same person who was a subscribing witness to the within conveyance ; and that he also knows the said W. B., who made the aforesaid acknowledgment, to be one of the individuals described in, and who executed the said conveyance, which is to me satisfactory evidence thereof. J. P., Justice of the Peace. Acknowledgment By Subscribing Witness. To Deed executed by an Attorney. State of , county, ss. On this day of , A. D. , before me \name and official title), personally came S. W., to me known, who being by me duly sworn, did de- pose and say, that he resides in the town of , in said county; that he knew A. B., the person described in, and who executed the within con- veyance as the attorney in fact of E. F., therein j that he was present and saw the said A. B. execute the same as such attorney, and that he, the said S. W., thereupon became the sub- scribing witness thereto. J. P., Justice of the Peace. Proof of the Execution of a Deed. Where the Subscribing Witnesses are Dead. The statutes provide that proof of the execution of at conveyance where the subscribing witnesses are dead shall be' made before any officer authorized to take proofs and acknowledgments of deeds, other than com- missioners of deeds (justices of the peace being included in this designation), and county judges not of the degree of counsel in the supreme court. The evidence estab- lishing the death of the witnesses, and of the hand- writing of such witnesses, or of either of them, and of the grantor, with the names and places of residence of the witnesses examined before the officer, must be set forth in his certificate. The conveyance having been thus proved and certified, may be recorded in the proper office, proz>ided the original deed is deposited in the same office, to remain there for the inspection of all persons desiring to examine it ; such record and deposit will be constructive evidence of the execution of the said conveyance to all subsequent purchasers, although such conveyance, nor the record thereof, nor the transcript of the record can be read in evidence. State of - , - county, ss. On this - day of - , A. D. - , before me (name and official title), personally came G. H., to me known, who, being by me duly sworn, and the within conveyance being shown to him, did depose and say, that he knew the parties therein described ; that he was well acquainted with A. B., the grantor; that he had frequently seen him write, and knew his handwriting, and that the name of the said grantor subscribed to the said conveyance is in the proper handwriting of the said A. B. And the said G. H. further on his oath said, that he was well acquainted with S. W., one of the subscribing witnesses to the said conveyance, and with his handwriting ; that the said S. W., at the time of the date of said deed, resided in the town of - , in the county of - , and has been dead about one year, and that the name of the said S. W., deceased, subscribed as a witness to said conveyance, is in his proper handwriting. And the said G. H. further deposed and said, that at the time of the date of said con- veyance, he was, also, and for several years had been, acquainted with one E. F., a shoemaker, who then resided in the said town of - , in the county of - , and in the neighborhood of the said grantor; that the said E. F. died at the town of - , aforesaid, in the year - , and since the date of said conveyance ; that he, the said G. H., was not acquainted with the handwriting of the said E. F. ; that he has never known or heard of any other person of the name of E. F. (if necessary, insert here "residing in the neighbor- hood of the said grantor"), and that he cannot say in whose handwriting the name of the said E. F. is subscribed to the said conveyance. And I hereby certify, that the aforesaid deposi- tion of the said G. H. is to me satisfactory evidence of the death of all the witnesses to the within con- veyance, and of the handwriting of S. W. one of the said witnesses, and of the handwriting of A. B., the grantor therein named. S. C.,Su^t. Court Com. in and for the county of - . Proof of Execution of Acknowledg- ment. By Subscribing Witness known to the officer. State of - , - county, ss. On this - day of - , A. D. - , before me personally came S. W., subscribing witness to the above certificate, to me known, who, being by me duly sworn, did depose and say, that he resides in the town of - , in said county; that he is acquainted with A. B. ; that he knew him to be the same person described in, and who executed the above certificate ; that he saw him sign the same ; that the said A. B. acknowledged the execution thereof in his presence; and that he subscribed his name as a witness thereto. J. P., Justice of the Peace. O-i R. S., 761, ments. . 30 to 33, is!r-av?, and ACKNOWLEDGMENT. Proof of Execution of Acknowledg- ment. BY Subscribing Witness proven to the officer. State of , county, ss. On this day of , A. D. , before me personally came L. M., to me known, and S. W. ; and the said L. M., being by me duly sworn, did depose and say, that he resides in the town of , in said county ; that he is acquainted with the said S. W., and that he knew him to be the same person who is the subscribing witness to the above certificate, which is to me satisfactory evidence of his identity; and the said S. W., being by me duly sworn, did depose and say, that he resides in the town of , in the county of ; that he is acquainted with A. B. ; (follow pre- ceding form to the end.) J. P., Justice of the Peace. Acknowledgment of Satisfaction. To te written on the Mortgage. I, A. B.,the mortgagee within named (or, the assignee of the within-named mortgagee), do hereby certify that the within mortgage is fully paid, satisfied, and discharged. Dated the day of , A. D. , A. B. Executed in presence of C. D. Add an acknowledgment same as preceding form. Acknowledgment of Satisfaction. By Individual proven to the officer. State of , county, ss. On this day of , A. D. , before me (name and title of officer), personally came A. B., satisfactorily proven to me to be the same person described in, and who executed the above certifi- cate, by the oath of C. D., to me known, who, being by me duly sworn, did depose and say, that he resides in the town of , in said county; that he is acquainted with the said A. B., and that he knew him to be the same person described in, and who executed the above certificate, which is to me satisfactory evidence thereof: and there- upon the said A. B. acknowledged before me, that he executed the said certificate. J. P., Justice of the Peace. Acknowledgment of Satisfaction. By a Corporate Company, with proof of execution. I, P. P., president of the Bank ,-.' , do hereby -.ertify, that a certain mortgage bearing date the day of , A. D. , made and executed by A. B. and W. his wife, to C. D., and by the said C. D. assigned to the said Bank of , by assign- ment dated the day of , A. D. , and recorded in the office of the clerk of the county of , in book No. of mortgages, page ; and which said mortgage was recorded in the office of the clerk of the county of aforesaid, in book No. of mortgages, pages and , on the day of , A. D. , is fully paid, satisfied, and discharged. In testimony wherof, the said Bank of has caused its corporate seal to be hereunto affixed, the day of , A. D. . \Seal.] P. "P., President. Executed in presence of W. S. State of , county, ss. On this day of , A. D. , before me (name and official title), personally came P. P., in the above certificate mentioned, president of the Bank of aforesaid, to me known; and the aid P. P., being by me duly sworn, did depose and say, that he resides in the town of , in the aid county ; that the seal affixed to the above certificate is the corporate seal of the said Bank of , and was affixed thereto by the order of the board of directors of said bank ; and that he subscribed his name thereto by the like order. J. P., Justice of the Peace. Acknowledgment of Satisfaction. By an Executor, Administrator, or Trustee. I, E. X., executor of the last will and testament of D. D., deceased (or, administrator of the goods, chattels, and credits which were of D. D., deceased; or, trustee of the estate of D. D., etc.), do hereby certify that a mortgage made and executed by E. F. to the said D. D., in his lifetime (or, to me as such trustee as aforesaid'', bearing date, etc. (follmv preceding forms as the case may require). J. X. >n presence pf W. S, Acknowledgment Satisfaction of Judgment. In a Court of Record. Satisfaction of judgments in courts of record may be acknowledged by the attorney within two years after filing the record of the judgment. Supreme Court, (or - Common Pleas). A. B. ) Of - term, A. D. - . vs. > Satisfaction for $ - . C. D. ) Satisfaction is acknowledged be- tween A. B., plaintiff, and C. D., defendant, in said action, for - dollars. Judgment docketed the - day of - , A. D. - . A. B., (or, A. A., Attorney for plaintiff). Subscribed and acknowledged before me, the - day of - , A. D. - , by A. B., known tc me (or, made known to me), to be the plaintiff in the above entitled cause (or, the attorney for the plaintiff in the above entitled cause). J. P., Justice of the Peace. Acknowledgment Satisfaction of Judgment. In a Justice' s Court, where a Transcript is fifed it the County Clerk's Office.^ County Clerk's office. A. B. ~l Judgment rendered in favor of the vs. > plaintiff against defendant, before C. D. j J. P., Esq., a justice of the peace in and for said county, for - dollars, and - cents, debt (or, damages), and costs. Transcript filed and judgment docketed, the - day of - , A. D. - . Satisfaction of the above-mentioned judgment is hereby acknowledged. A. B. Subscribed and acknowledged before me, the - day of - , A. D. , by A. B. , known to me to be the plaintiff above named (or, made known to me by the oath of W. S., to be, or, known to me to be one of the plaintiffs, etc.) ' J. P., Justice of the Peace. Authentication of the County Clerk, etc. To be annexed to the Certificate of Acknowledgment or Proof, taken according to the laws of another State. State of - , - county, ss. I, C. C., clerk (recorder, register, or prothonotary), of said county (or of - court of said county), do hereby certify that A. B. , who subscribed the foregoing certificate of acknowledgment (or proof), was at the time of taking such acknowl- edgment (or proof) a notary public (another officer), residing in said county, and duly authorized to take and certify the same by the laws of said State, and that the same is taken and certified in all respects as required by the laws of said State. That I am well acquainted with the handwriting of said A. B., and verily believe that the signa- ture attached to the foregoing certificate is the genuine signature of said A. B. Witness my hand and official seal, this - day of - , A. D. - . [Official seal.] C. C., Clerk, etc. Satisfaction of Mortgage and Aeknowl- ed gin cut. By Individual knmi'n to the officer. I, A. B., of the town of - , in the county of - , and State of - , do hereby certify, that a certain mortgage, bearing date the - day of - , A. D. - , made and executed by C. D., of the first part, to me, the said ft.. B., of the second part, and recorded in the office of the clerk of the county of - , in book of mortgages, at pages and , on the - day of - , A. D. - (if the mortgage has been assigned, insert the name of the assignee instead of A. B. at the commencement of the certificate; omit the words " me, the said," in italics; and say here: and which said mortgage was duly assigned to me by the said A. B., the mortgagee above named, by assignment, dated the - day of - , in the year - , and recorded in the office of the clerk of the county of - aforesaid, in book of mortgages, at page , on the - day of - , A. D. - ) is fully paid, satisfied, and dis- charged. Dated the - day of - , A. D. - . A. B. Executed in presence of W. S. ower. State of Ohio, County, ss. Be it remembered, that on the day of , in the year of our Lord One Thousand Eight Hun- dred and Ninety , before me, the subscriber, a within and for said county, personally came , the grantors in above conveyance, and acknowledged the signing thereof to be their voluntary act and deed for the purpose therein mentioned. In witness whereof, I have hereunto subscribed my name and affixed my seal on the day and year aforesaid. [Seal.} (Official title.) S. & C. ch. 34, g 15. i-io Ohio, 37, 42. j-i; Id. 105 ; o Id. 121 ; 7 Ohio St. 37 ; 10 Ohio, 305 ; 6 Ohio St. 466. K-i6 Ohio. 91, 323; 7 Id. (pt. i) 194; 3 Ohio St. 78. 1-5 Ohio St. 319. n-Id. 5:3 Ohio, 107 ; 9 Id. 321 ; a Id. 234; 3 Id. 488; 2 Id. 124; 10 Id. 188; n Id. 474. ACKNOWLEDGMENT. Acknowledgment Without Dower. State of Ohio, County, 83. Be it remembered, that on the day of , in the year of our Lord One Thousand Eight Hun- dred and Ninety , before me, the undersigned, a within and for said County, personally came the grantor in the above conveyance, and acknowledged the signing thereof to be volun- tary act and deed for the purposes therein mentioned. In witness whereof, I have hereunto subscribed my name and affixed my seal on the day and year aforesaid. [Seal,] (Official title.-) Acknowledgment By Attorney. State of Ohio, County, ss. Be it remembered, that on the day of , in the year of our Lord One Thousand Eight Hun- dred and Ninety , before me, the subscriber, a within and for said County, personally came , by Attorney in fact, the grantor in above conveyance, and acknowledged the sign- ing thereof to be voluntary act and deed for the purposes therein mentioned. In witness whereof, I have hereunto subscribed my name and affixed my seal on the day and year aforesaid. [Seal.] (.Official title.) Acknowledgment Of Administrator, Executor, or Guardian. State of Ohio, County, ss. Be it remembered, that on the day of , in the year of our Lord One Thousand Eight Hun- dred and Ninety , before me, the subscriber, a within and for said County, personally came , (executor of the last Will and Testament of deceased), or (Administrator of the estate of de- ceased), or (Guardian of the person and estate of minor heir of deceased), the grantor in above conveyance, and as such acknowledged the signing thereof to be voluntary act and deed for the purposes therein mentioned. In witness whereof, I have hereunto subscribed my name and affixed my seal on the day and year aforesaid. [Seal.} (Official title.) The within deed approved by me this day of 189 [Seal.} (Probate Judge.) Acknowledgment Of Sheriff. State of Ohio, County, ss. Beitremembered.that on the day of , in the year of our Lord One Thousand Eight Hun- dred and Ninety .before me, the subscriber, a within and for said County, personally came Sheriff of County, in the State of Ohio, the grantor in above conveyance, and ac- knowledged the signing thereof to be volun- tary act and deed for the purposes therein men- tioned. In witness whereof, I have hereunto subscribed my name and affixed my seal on the day and year aforesaid. [Seal.} (Official title.) Acknowledgment Tax Deed. State of Ohio, County, ss. Be it remembered, that on the day of , in the year of our Lord One Thousand Eight Hun- dred and Ninety , before me, the subscriber, a within and for said county, personally came , Auditor of County, in the State of Ohio, the grantor in above conveyance, and ac- knowledged the signing thereof to be voluntary act and deed for the purposes therein men- tioned. In witness whereof, I have hereunto subscribed my name and affixed my seal on the day and year aforesaid. [Seal.] (Official title.) Conveyances, etc., cannot be proved by subscribing witnesses, but must be acknowledged by the grantors in the presence of such witnesses. OREGON. Conveyances, etc., executed in any other State, Territory, or district of the United States, may be executed according to the laws of such State, Territory or district, and the execution thereof may be acknowl- edged before any judge of a court of record, justice of the peace, or notary public, or other officer, authorized by the laws of such State, Territory, or district, to take the acknowledgment of deeds therein, or before any commissioner appointed by the governor of Oregon lor such purposes. Unless the acknowledgment be taken before a com- missioner appointed by tbe governor of Oregon for that purpose, or before a Notary Public, certified under his notarial seal, or before the clerk of a court of record, certified under the seal of the court, such deed shall have attached thereto a certificate of the clerk, or other proper certifying officer of a court of record of the county or district within which such acknowledgment was taken, under the seal of his office, that the person whose name is subscribed to the certificate of acknowl- edgment was, at the date thereof, such officer as he is represented to be, and that he believes the signature of such person subscribed thereto to be genuine, and that the deed is executed and acknowledged according to the laws of such State, Territory or district." A mar- ried woman must join with her husband in making a deed. Acknowledgment General Form. State of , county of , ss. On this day of , A. D. , personally came before me (name, and title), in and for said county, the within-named A. B. and W. B. his wife, to me personally known to be the iden- tical persons described in, and who executed the within instrument, and acknowledged to me that they executed the same freely and volun- tarily for the uses and purposes therein named. Witness my hand and seal this day of , A. D. . [Seal.] (Signature and title of Officer.) PENNSYLVANIA. Conveyances, etc., executed in the State, must be acknowledged before justices of the supreme court of Pennsylvania, judges of the courts of common pleas, mayor, of Philadelphia, Pittsburgh, Allegheny, Scran- ton, Williamsport, Lock Haven and Carbondale, the recorders of deeds, and notaries public, and all justices of the peace. Out of the State, before the mayor or chief magistrate of the city, town, or place where the deed is executed (under the public seal) ; any justice or judge of the supreme or superior court, or court of common pleas: or of any court of probate or court of record of any State or Territory in the United States (certified under the hand of the judge and the seal of the court); before any judge of the United States supreme court, or of any United States district court, before any officer or magistrate of any State or Territory in the United States, who is authorized by the laws of his own State or Ter- ritory to take acknowledgments therein. The proof of such authority is the certificate of the clerk or pro- thonotary of any court of record in such State, under seal of the court that the officer taking such acknowl- edgment is duly qualified to take the same ; before ambassadors and other public ministers of the United States (under official seal) ; consuls and vice-consuls of the United States (under consular seal ) ; before any notary public in any State or Territory of the United States, or in any foreign county ; before commissioners appointed by the governor in any State, Territory, ot foreign country, whose commissions last five years unless sooner revoked. Where the person making the acknowledgment is in the military service of the United States, before any person holding the rank of major, or any higher rank in the said military service under a commission from the governor of Pennsylvania. The seal is prima facie evidence of its own gen- uineness. Acknowledgments, taken by commissioners of deedi out of the State, need not be certified, except under their own seals. No deed or contracts relating to real estate by a wife, o-See General Statutes.. ACKNOWLEDGMENT. 39 whether it be her own or her husband's, is binding upon her unless acknowledged.? The wife must ac- knowledge on separate examination, and her signature cannot be proved.? A deed by a corporation should be executed by its corporate seal attested by the president and secretary.? Acknowledgment General Form. State of Pennsylvania, county, ss. Be it remembered, that on the day of , A. D. , before me, one of the justices of the peace in and for the said county, personally ap- peared the above-named A. B. , and acknowl- edged the foregoing to be his act and deed, and desired that the same might be recorded as Such according to law. , In testimony whereof, I have hereunto set my land and seal the day and year above written. J . P. , Justice of the Peace. [Seal. ] Acknowledgment Husband and Wife. State of Pennsylvania, county, ss. On this day of , A. D. one thousand eight hundred and .before me (one of the justices of the peace in and for said county), came the above- named A. B. and W. B. his wife, and severally acknowledged the within written indenture to be their act and deed, and desired that the same might be recorded as such according to law. She, the said W. B., being of full age, and by me examined separate and apart from her husband, -the full contents thereof being first made known to her, declaring that she did voluntarily, and of her own free will and accord, seal, and as her act and deed delivered the said indenture without any coercion or compulsion on the part of her said husband. In testimony whereof, I have hereunto set my hand and seal the day and year aforesaid. [Sea/.] (Signature and title of officer.) Acknowledgment Husband and Wife. State of Pennsylvania, county, ss. Be it remembered, that on the day of , A. D. , before me (name and title of official), duly commissioned in and for said county, came A. B. and W. B. his wife, and acknowledged the foregoing indenture to be their act and deed, and desired the same to be recorded as such. She, the said W., being of lawful age, and by me examined separate and apart from her said hus- band, and the contents of said deed being first fully made known to her, did thereupon declare that she did voluntarily and of her own free will and accord, sign and seal, and as her act and deed, deliver the same without any coercion or compulsion of her said husband. 'Witness my hand and seal the day and year aforesaid. [Seal."] (Signature and title of officer.) Acknowledgment By Attorney. State of Pennsylvania, county, ss. Before me, one of the justices of the peace in and for the said county, personally came the above-named A. B., and in his own name, and in the names of his constituents, the above-named C. D. and E. F., in due form of law, acknowl- edged the above written indenture to be his own act and deed, and the act and deed of his constit- uents, the said C. D. and E. F., by him, ths caicl A. B., done and executed by virtue of a letter of attorney to him for that purpose, granted to the t?nd that the same might be as such recorded. Witness my hand and seal the day of , A. D. . ^Seal.} (Signature and title.) Acknowledgment Before Commis- sioners. State of Pennsylvania, city of Philadelphia, ss. Be it remembered, that on this day of , A. D. , before the subscriber, C. R., commis- sioner for the State of Delaware, resident in said State of Pennsylvania, to take acknowledgments of deeds, etc., personally appeared A. B. and W. his wife, named in this indenture, and severally acknowledged said indenture to be their act and deed respectively, and desired that it might be recorded. And that on the same day the said W., p-Sce Genera} Statutes, wife of the said A. B., being privately examined by the subscriber, apart from her said husband, acknowledged that she executed the said inden- ture willingly, without compulsion, or threats. or fear of her husband's displeasure. In testimony whereof, I have hereunto set my hand and affixed my official seal the day and year aforesaid. [Seal. } (Signature and title.) State of Pennsylvania, city of Philadelphia, ss. Be it remembered, and it is hereby certified, that on this day of , A. D. , before me, C. R., commissioner for the State of Maryland, resident in the State of Pennsylvania, to take ac- knowledgments, etc., personally appeared A. B. oatn received oy me; TO oe me persons namea ana described as and professing to be parties to the foregoing indenture or instrument of writing, and do severally acknowledge the same to be their act and deed. The said W. B., having signed and sealed the said instrument or indenture be- fore me, out of the presence and hearing of her said husband, and being by me examined out of such presence and hearing, " whether she doth execute and acknowledge the same freely and voluntarily, and without being induced to do so by fear or threats of ill usage by her husband, or by fear of his displeasure," declareth and saith, that she doth. In testimony whereof, etc. [Seal.] (Signature and title.) State of Pennsylvania, city and county of Phila- delphia, ss. Be it remembered, that on this day of , A. D. , before me, C. R., Esq., commissioner duly authorized by the governor of Alabama, per- sonally appeared A. B., the grantor in the above and foregoing deed named, who acknowledged the same to be his voluntary act and deed, signed, sealed, and delivered, on the day and year therein above mentioned, to the above-named , for the purposes therein expressed. Witness my hand and seal the day and year aforesaid. [Seal.} (Signature and title.) State of Pennsylvania, county of Philadel- phia, ss. Be it remembered, that on the day of , A. D. , before me (C. R., commissioner for Massachusetts within the State of Pennsylvania, duly authorized to take acknowledgments of deedi and other instruments under seal), person- ally appeared the within-named A. B. and W. B. his wife, and acknowledged the foregoing instru- ment, by them subscribed, to be their free act and deed. In testimony whereof, I have hereunto set my hand and seal the day and year above written. [Seal.] (Signature and title.) State of Pennsylvania, county of Philadel- phia, ss. Be it remembered, that on the day of , A. D. , before me, C. R., commissioner for Maine within the State of Pennsylvania, duly authorized to take acknowledgments of deeds and other instruments under seal, personally ap- peared the above-named A. B. and W. B. his wife, and acknowledged the within instrument (by them subscribed; to be their free act and deed. In testimony whereof, I have hereunto set my hand and seal the day and year above written. [Seal.] (Signature and title.) Acknowledgment Single Grantor. City and county of New York, ss. On this day of , A. D. , before me, came C. R., a resident of , to me known to be the person described in and who executed the within instrument in writing, and who acknowl- edged duly to have executed the same, and this to me is satisfactory proof of the execution of the said written instrument- In testimony, etc. [Seal.} (Sifttat*re and title. ) ACKNOWLEDGMENT. Acknowledgment Grantor and Wife. City and county of New York, ss. On this day of , A. D. , before me, came A. B. and W. his wife, residents of , to me known to be the persons described in and who executed the within instrument in writing, and who acknowledged duly to have executed the same, and the said W. (the wife) having been separately examined by me, acknowledged that he executed the said instrument of her own free will and accord, all which is to me satisfactory proof of the execution of the said written instru- ment by the parties aforesaid. In testimony, etc. [Seal.] (Signature and title.) Proof by a Witness. City and county of New York, ss. On this day of , A. D. , before me, came W. S., a resident of , to me personally known as such (or proved to me by the oath of , a resident of , [who is personally known to me as suchj to be the same person), and being sworn, de- poseth, that he was present and saw A. B. duly execute the within instrument in writing, that this witness has known the said A. B. , and knows him to be the person described in and who exe- cuted the said instrument, and this is satisfactory proof to me of the execution of the said instru- ment. In testimony, etc. [Seal.] (Signature and title.) Acknowledgment By a Corporation. State of Pennsylvania, county, ss. Before me, one of the justices, etc., personally appeared A. B. , Esq., president of the above- named corporation, who, being duly sworn, de- poseth and saith, that he was personally present at the execution of the above written indenture, and saw the common seal of the said (name of torporation) duly affixed thereto, that the seal so affixed is the common and corporate seal of the said , and that the above written was duly sealed and delivered, by, as, and for the act and deed of the said corporation of the , for the uses and purposes therein mentioned. And that the name of this deponent subscribed to the said deed as president of the said corporation, in attes- tation of the due execution and delivery of said deed, is of this deponent's proper handwriting. Sworn and subscribed before me this day of , A. D. . [Seal. ] (Signature and title. ) Acknowledgment Renunciation of Dower. Renunciations of inheritance and dower are indorsed upon the deed. State of Pennsylvania, etc. I, C. S. C., commissioner appointed under the act of the General Assembly of the State of South Carolina, of the day of , A. D. , to take renunciations of dower and inheritance, etc., in the State of Pennsylvania, do hereby certify, to all whom it may concern, that W. B., the wife of the within-named A. B., did this day appear before me, and upon being privately and separately examined by me, did declare that she does freely, voluntarily, and without any com- pulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever re- linquish unto the within-named A. B. , his heirs and assigns, all her interest and estate, and also all her right and claim of dower, of, in or to, all and singular the premises within mentioned and released. Given under my hand and seal this day of , A. D. . [Seal.] (Signature and title.) Acknowledgment Renunciation of Inheritance. State of Pennsylvania, city of Philadelphia, ss. I, C. S. C., commissioner appointed under the act of the General Assembly of the State of South Carolina, of the day of , A. D. , to take renunciations of dower and inheritance, etc. , in the State of Pennsylvania, do hereby certify unto all whom it may concern, that W. B.,the wife of the within-named A. B., did this day appear before me, and upon being privately and sepa- rately examined by me, did declare that she did actually join her said husband in executing the within release, and that the same was positively and bona fide executed by them at least seven days before this her examination, and that she did then and still does at this time freely, volun- tarily, and without any manner of compulsion, dread, or fear of any person or persons whomso- ever, renounce, release, and forever relinquish unto the within-named A. B., his heirs and as- signs, all her estate, interest, and inheritance, ia all and singular the premises within mentioned and released. Given under my hand and seal this day of , A. D. . [Scal.\ (Signature and title.) ' Acknowledgment Sheriffs Deed. State of Pennsylvania, county, ss. Be it remembered, that this day of -, A. D. , in the open court of common pleas of said county, and before the judges of the said court, came A. B., high sheriff of said county, and acknowledged the above deed poll to be his act and deed, and desired that acknowledgment of said deed might be entered of record among the proceedings of the court, and the same was thereupon entered accordingly. In testimony whereof, I have hereunto set my hand and caused the seal of the said court to be affixed the day and year above mentioned. [Seal.] (Signature and title.) Acknowledgment Another Form. State of Pennsylvania, county, ss. Acknowledged by A. B. , high sheriff of the county of , in open court of common pleas, in and for the said county, the day of , A. D. , and entered among the proceedings of the court. 'Witness my hand and the seal of my office, the day and year above written. [Seal.] (Signature and title.) Acknowledgment By Special Part- ners. State of Pennsylvania, county, ss. Before me, one of the justices in and for said county, personally appeared the above-named A. B., C. D., and E. F., who severally, in due form of law, acknowledged the foregoing certifi- cate as and for theirs, and each of their act and deed, to the end that the same might be recorded as such. Witness my hand and seal this day of , A. D. . [Seal.] (Signature and title.) Acknowledgment Writing in English, Cony in another Language. State of Pennsylvania, county, ss. Before me, I. P., -one of the justices of the peace in and for the said county, personally ap- peared the within A. B. , who in my presence did acknowledge the foregoing , whereof the annexed purports to be a true translation, to be his voluntary act and deed, and by him de- livered to the within-named C. D. , for the pur- poses therein mentioned the name and seal thereunto prescribed and affixed being the proper hand and seal of him, the said A. B. In testimony whereof, I have hereunto set my hand and seal this day of , A. D. . [Seal. ] (Signature and title.) Probate of a Deed by a Witness. There must be two witnesses to a deed of real estate, one of whom must take this affidavit to be indorsed OB the deed to entitle it to record in South Carolina. One witness is sufficient for personal property. State of Pennsylvania, etc. Personally appeared before me, C. S. C , com- missioner appointed under the act of the General Assembly of the State of South Carolina, of the day of , A. D. , to take acknowledg- ment or proof of deeds, etc. , in the State of Penn- sylvania, W. S., and made oath that he saw the within-named A. B. sign, seal, and as his act and deed deliver the within written deed, and that he with C. D. witnessed the execution thereof. In testimony, etc. [Seal. ] (Signature and title ) Proof by Subscribing Witness. Proof of the execution of a deed may be made by the ACKNOWLEDGM ENT. affidavit of a subscribing witness. Powers of attorney relating to real estate must be acknowledged the same as deed*. t State of Pennsylvania, county, ss. Be it remembered, that on the day of , A. D. , before me {name and title of official), duly commissioned in and for said county, personally appeared W. S., one of the subscribing witnesses to the execution of the above indenture, who being duly sworn (or affirmed; according to law, doth depose and say that he did see A. B. , the grantor above named, sign and seal, and as his act and deed deliver the above indenture (deed or conveyance), for the use and purposes therein mentioned, and that he did also see N. S. sub- scribe his name thereunto as the other witness of such sealing and delivery, and that the name of this deponent thereunto set and subscribed as a witness is of this deponent's own proper hand- writing. P W. S., Witness. Sworn (or affirmed) to and subscribed before me the day and year aforesaid. 'Witness my hand and official seal. [Seat.] (Signature and title.) State of Pennsylvania, county, ss. Be it remembered, that on the day of , A. D. -, before me (name and title of officer), personally came W. T. , who being duly sworn (or affirmed) according to law, doth depose and say, that he was personally present and did see the common or corporate seal of the above-named (name of corporation) affixed to the foregoing in- denture Cor deed poll). That the seal so affixed is the common or corporate seal of the said (name of corporation), and was so affixed by the authority of the said corporation as the act and deed there- of. That the above-named P. P. is the president of thi said corporation, and did sign the said in- denture (or deed poll) as such in the presence of this deponent. That this deponent is the secre- tary of the said corporation, and that the name of this deponent above signed in attestation of tue due execution of the said indenture (or deed poin is of this deponent's own proper hand- writing. T. R., Treasurer (or other officer). Sworn to and subscribed before me. [Seal.] (Signature and title.) RHODE ISLAND. Conveyances, etc., executed in this State, must be acknowledged before a senator, judge, justice of the peace, notary public, or town clerk, and recorded or lodged to be recorded in the office of the town clerk of the town where the land lies.P If the grantor or grantors die or remove from the State before acknowledgment, the supreme court, or court of Common pleas, on proof of signature, may order the deed recorded. P Executed out of this State, a conveyance of lands within this State, or instrument relating thereto executed without the limits of this State and within the United States, may be acknowledged before any judge, justice of the peace, mayor, or notary public in the State where the same is executed, or by any commissioner appointed by the governor and duly qualified there- unto ; and if without the limits of the United States, be- fore any ambassador, minister, charge d'affaires, recognized consul, vice-consul, or commercial agent of the United States, or by any commissioner appointed and qualified as aforesaid, in the country in which such deed or instrument is executed. 1 Acknowledgment of any deed hereafter made, need not be in any set form, but shall be made by all the parties grantors, including married women, even though releasing dower only, and the certificate thereof shall express the ideas that the grantors respectively making the acknowledgment were each and all known to the magistrate taking the acknowledgment, and known by the magistrate to be the parties executing the instru- ment, and that they acknowledged said instrument to be their free act and deed. No other acknowledgment shall be required of married women. r Acknowledgment State of , county Of , 88. Be it remembered, that on this day of , A. D. , before me (name and title of officer), p-See General Statutes. q-General Statutes, 162. r-Jd. ch. 173. 8-gee General Statuses. f-Code, g 2071. personally appeared A. B. and W. B. both being known to me, and known by me to be the par- ties executing foregoing instrument, and the said A. B. and W. B. acknowldeged the same by them signed, to be their free and voluntary act and deed, and that they do not wish to retract the same. In testimony whereof, I have set my hand and seal at the day and year above written. \Seal.} (Signatnre and title of officer.) SOI Til CAROLINA. Before any deed or instrument in writing can be recorded in the proper office within this State, the execution thereof shall first be proved by the affidavit in writing of a subscribing witness to such instrument taken before some officer within this State competent to administer an oaih, or before a commissioner, or commissioners, appointed by dedimus issued from the court of common pleas of the county in which the in- strument is to be recorded ; or, if taken without the limits of this State and within the United States, before a commissioner of deeds of this State, or before a clerk ot a court of record, who shall certify the same under his official seal, or before a notary public, who shall affix thereto his official seal, and accompany the same with a certificate as to his official character from the clerk of a court of record of the county in which the affidavit is taken ; or, if taken without the United States, before a consul, vice-consul or consular agent of the United States of America. (Gen. Statutes 1882 Sec. 1777). Proof before Subscribing Witness. State of , county of , ss. Personally appeared before me, W. T., and made oath that he (or she) saw the within-named A. B. (or parties to the deed) sign, seal and as his (her or their) act and deed, deliver the within- written deed; and that he (or she) with N. S., wit- nessed the execution thereof. [Signed] W. T., Witness. Sworn to before me, this day of , A. D. 189 . [Seal.] (Signature and title of officer^ Renunciation of Dower. State of -, county of , ss. I (name and title of officer), do hereby certify unto all whom it may concern, that W. B.,the wife of the within-named A. B., did this day ap- pear before me, and upon being privately and separately examined by me, did declare that she does freely, voluntarily, and without any com- pulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever re- linquish unto the within-named C. D., his heirs and assigns, all her interest and estate, and also all her right and claim of dower, of, in, or to all and singular the premises within mentioned and released. (Signature of wife.) W. B. Given under my hand and seal this day of , A. D. [Seal. 1 (Signature and title of officer. ) TENNESSEE. Probate of conveyances, etc., is by not less than two subscribing witnesses. Acknowledgment is by maker himself, in which case there is no need of subscribing witnesses. Such probate or acknowledgment is evidence prima facie only in the courts, of the execution of the instrument. In the absence properly accounted for of the original instrument, a copy from the office of registry with the certificates of probate or acknowledgment, is prima facie evidence of the contents and execution of the original.' The essential substance of the certificate of probate is, the oath of the two subscribing witnesses that they are acquainted with the maker or grantor, and that in their presence he acknowledged the deed, etc., to be his act and deed on the day it bears date, or some designated time; the essential substance of a certificate of acknowl- edgment is that the officer before whom it is taken is personally acquainted with the maker, and that he (the ACKNOWLEDGMENT. grar tor i antor) acknowledged the execution of the instrument tor the purposes contained. Practically the clerk or other officer in or out of the State, if not personally acquainted with the acknowledger, is made so at the time by any means which will satisfy him to certify that he is personally acquainted, or rather, which will make the officer personally acquainted. The essential sub- stance of the certificate of the execution of the deed by a wife is that she appeared before the officer privately and apart from her husband, and acknowledged the execution of the deed to have been done by her freely, voluntarily, understandingly, without compulsion or constraint from her husband, etc." Probates and acknowledgments may be made within i;he State of Tennessee, before clerks of county courts and their deputies, and notaries public. In any other State or Territory of the United States before a com- missioner of Tennessee appointed by the governor of Tennessee for such State or Territory, or notary public of such State or Territory, or any court of record, or ny clerk of any court of record of such State or Terri- tory. If made out of the United States, before a commissioner of Tennessee, appointed for such country, or a notary public of such country, or a consul, minister, or ambassador of the United States in such country." Certificates of probate, etc., made by commissioners, notaries, consuls, ministers, or ambassadors, shall be under their official seals. 1 If made by a court of record, the copy of the entry on the record shall be verified by the certificate of the clerk of the court under his seal of office ; if made before a clerk of a court of record, his certificate shall be under seal of office, and the official character of the clerk shall be verified by the Certificate of the presiding judge of the court. J Acknowledgment General Form.* State of , county of , ss. Before me, C. R., a commissioner of the State of Tennessee, appointed, qualified, and commis- sioned to take probate of deeds, etc., for registra- tion and use in the State of Tennessee, personally appeared A. B., the within-named bargainer (or other name), with whom I am personally ac- quainted, and who acknowledged that he exe- cuted the within deed (or other instrument) for the purposes therein contained. Witness my hand and seal of office this day of , A. D. . [ Official seal.} (Signature and title of officer.) Proof by Subscribing Witness. 1 State of , county of , ss. Before me, C. R. (as in above form), personally appeared W. T. and N. S., subscribing witnesses to the within deed (or other instrument , who being first sworn, deposed and said that they are ac- quainted with A. B., the bargainer (or as the name maybe), and that he acknowledged the same in their presence to be his act and deed on the day it bears date (or stating the time as proved by the witnesses). Witness my hand and seal of office at , this day of , A. D. . [Official seal.] (Signature and title of officer.) Acknowledgment Husband and Wife.'' State of , county of , ss. Before me, C. R., commissioner, etc. (as in fore- going forms), personally appeared A. B. and W. B. his wife (here follows a certificate of probate or ac- knowledgment as to the husband, as shown in the pre- ceding forms ; then goes on), and the said W. B., wife of said A. B., with whom I am personally acquainted, having appeared before me privately and apart from her said husband, acknowledged the execution of said deed to have been done by her freely, voluntarily, and understandingly, without compulsion or constraint of her said hus- band, and for the purposes therein expressed. Witness my hand and seal of office, etc. (as in preceding forms). [Official seal.] (Signature and title of officer.) TEXAS. Acknowledgments. In this State acknowledgments can be taken before tome notary public, a clerk of the district court and a V-See Code. w-Code, g 2039, 2039 a, b, c, d; Act rf 1870, ch. 71, ?it-4, $ 2040, 2051. x-Code, g 2043. ,$ 2045. 2046. -Code, g 2042. -Code, \ 2058. judge or clerk of the county court, when conveyance u executed within the State. Acknowledgment made without tbe State but within the United States may be made be- fore either : lit. A clerk of some court of record having a seal. 2d. A commissioner of deeds duly appointed under the laws of this State, sd. A notary public. Acknowledgment made without the United States may be before either : ist. A minister, commissioner, or charge d'affaires of the United States, resident and accredited in the country where the proof or acknowledgment is made. 2d. A consul-general, consul, vice-consul, commercial agent, vice commercial agent, deputy consul or consular agent of the United States, resident in the country where the proof or ac- knowledgment is made. 3d. A notary public. Form of Acknowledgment of Husband and Wife. State of Texas, county of , ss. Before me (here insert the name of and character of the officer), on this day personally appeared A. B. and C. D., wife of said A. B., known to me to be the persons whose names are subscribed to the foregoing instrument of writing, and ac- knowledged to me that they executed the same for thj purposes and considerations therein ex- pressed. And the said C. D., wife of the said A, B., having been examined by me privily and apart from her husband, and having the same fully explained to her, she, the said C. D., wife of said A. B., acknowledged such instrument to be her act and deed, and declared that she had wil- lingly signed the same for the purposes and con- siderations therein expressed, and that she did not wish to retract it. Given under my hand and seal of office, this day of , 1894. Notary Public in and for County, Texas. Form of Certificate of Acknowledg* ment by a Witness. State of Texas, county of , ss. Before me (here insert the name and character of officer), on this day personally appeared A. B., known to me (or proved to me on the oath of ) to be the person whose name is subscribed as a witness to the foregoing instrument of writ- ing, and after being duly sworn by me stated on oath that he saw C. D., th-5 grantor or person who executed the foregoing instrument, sub- scribe the same (or that the grantor or person who executed such instrument of writing acknowledged in his presence that he executed the same for the purposes and considerations therein expressed), and that he signed the same as a witness at the request of the grantor (or person who executed the same). Given under my hand and seal of office this day of , A. D. 1894. (Signature and title of officer.) UTAH. Conveyances, etc.. may be acknowledged or proved in the Territory before a judge or clerk of a court having a seal, notary public, or county recorder, or by justice of the peace of county where lands are situate.' Out of the Territory, and within the United States, before a judge or clerk of a court of the United States, or of any State or Territory having a seal, or a notary public, or a commissioner of deeds for Utah Territory. Out of the United States, before a judge or clerk of any court of any state, kingdom, or empire having a seal, or any notary public, or any minister, commissioner, or consul of the United States appointed to reside therein. A legally appointed deputy of any of the above-mentioned officers may take the proof or acknowledgment in name of principal. The forms for acknowledgment or proof by subscribing witnesses are the same as given for California, above, which see, ex- cept that a married woman may convey any of her rea/ f-See Qeneral Statutes. ACKNOWLEDGMENT. estate, of interest thcfein, by conveyance, executed and acknowledged and certified in the same manner as a feme sole, or other person. Whenever all the sub- scribing witnesses are dead, out of the jurisdiction, or cannot be had, the signature of the grantor or subscrib- ing witnesses may be proved by proving handwriting. 1 VERMONT. Acknowledgment may be made " before a justice, town clerk, notary public, master in chancery, county clerk, judge or register of probate." Rev. laws, see 1927. Acknowledgments or proofs without the state are valid, ' ' if certified agreeably to the laws of the State, province or kingdom in which such acknowledg- ment or proof is taken," * * * may be acknowledged or proof taken " before a justice of the peace, magistrate, or notary public within the United States, or in a foreign country, or before a commissioner appointed for that {j 1946. The separate acknowledgment or private exami- nation of the wife is not required.' Acknowledgment Husband and Wife. State of , county of , ss. At , this day of , A. D. , per- sonally appeared A. B. and W. B. his wife, the signers and sealers of the above written instru- ment, and acknowledged the same to be their free act and deed. Before me, (Signature and title of officer.) Proof by Subscribing Witness. In certain cases where deed is not acknowledged, proof of execution may be made by the subscribing witnesses before any judge of the supreme or county court in this State ; and if the witnesses are dead or out of the State, the deed may be proved before such court by proving the handwriting of the grantor, and of any subscribing witness, or adducing other evidence to the satisfaction of the court. If a grantor refuses to ac- knowledge his deed, any person claiming under him may cite him before a justice of the peace to hear the testi- mony of the subscribing witnesses, and if the deed is proved to the satisfaction of the justice by one or more of the subscribing witnesses, he shall so certify, which shall be equivalent to a due acknowledgment by the grantor. These proceedings must be had in this State.' VIRGINIA. The court or clerk of any county or corporation in which real estate lies, or personalty generally may be at the time being, shall admit any deed or contract respecting it to record as to any person whose name is signed thereto, upon a certificate of his acknowledgment before a justice, a commissioner in chancery, or notary public within the United States, written on or annexed Jo it, to the following effect : 8 Acknowledgment General Form. State of , county of , ss. I,J. P., a justice of the peace (or notary public, or commissioner in chancery of the court of) of the county (or corporation) aforesaid, in the State (or Territory, or District) of , do certify that A. B. (or A. B. and W. B., etc.) whose name (or names) is (or are) signed to the writing above efore any commissioner appointed by the governor of this State for that purpose. In the cases where deeds and mortgages are executed and acknowledged outside f this State, and the officer before whom the acknowl- edgment is taken has no seal , such deed or mortgage shall have attached thereto a certificate of the clerk or other proper certifying officer of a court of record of the county or district within which such acknowledg- ment was taken, under the seal of his office, that the person whose name is subs cribed to the certificate of acknowledgment at the date thereof was such officer as he is therein represented to be, that he knows the signa- ture of such person subscribed thereto to be genuine, and that the deed or mortgage is executed according to tha laws of such State, Territory, or District. j Every notary public, J. P. and com. of deeds shall add to his certificate the date when his commission or term of office expires. When any married woman not residing in this State shall join her husband in any conveyance of y-See General Statutes. z-Laws, 1859, cn - 37- - 2 Bouv. Inst. ft. 1309 ; 2 Kent Comm. 478 ; Story Eq. Jur. ? 255; Liverm. Ag. 45; Paley Ag. CLloyd Ed.) 41 ; 4 Wash. C. C. 559, 4 Mass. C. C. 296; 3 Pet. 69, 81 ; 6 Mass. 193 ; 3 Pick. 495 ; i Johns. Cas. no; 2 Id 424; 12 Johns. 300; 3 Cow. 281. fo-See 2 Roper Leg. 439 : i Yes. ch. 335 ; 2 Id. 371 ; 12 Id. 136 ; 3 P. Wms. real estate situated within this State, the conveyance shall have the same effect as if she were sole, and the acknowledgment or proof of the execution of such con- veyance by her makes her the same as if she were sole.l ACQUIESCENCE. See ACTS ; AGENCY ; CON- TRACTS ; ELECTION. ACQUIESCENCE is a quiet consent or silent submission with apparent content : It is dis- tinguished from avowed or express consent on the one hand, and opposition or open discon- tent on the other. It is a silent appearance of consent. A failure to make any objections. Acquiescence in the acts of an agent, or one who has assumed that character, will be equiva- lent to an express authority for those acts.' It is a ratification, and like it relieves the person who has acted, of all responsibility, for it is now made the act of him who has acquiesced in it. Where a person is bound to choose be- tween a paramount right and a testamentary disposition, his acquiescence in a state of things which indicates a choice, when he was aware of his rights, will, in the absence of proof to the contrary, be evidence of such choice. 1 " Acts of acquiescence which will constitute an implied choice or election are to be decided by the circumstances of each case, rather than by any general principle or test. Acquisition. See DESCENT; GIFT; PROPERTY, ETC. ; PURCHASE. Acquittal. See CONTRACTS; CRIMINAL LAW. Acquittance. See CONTRACTS; RECEIPTS. ACTS. See ACCIDENT; AGENCY; AUTHORITY; CRIMINAL LAW; EVIDENCE; LEGISLATION; STATUTE LAW. AN ACT is something done, and for which the person doing is responsible. Something done by an individual as a private person or as an officer. Something done by a body of per- sons, as, an association, a corporation, legisla- ture, council, or a court. It includes not merely physical acts, but also decrees, orders, judgments, awards, edicts, laws, resolutions, and determinations. Acts indicate the intention ; d the act does not make a person guilty unless the intention be guilty also. This, however, applies only in criminal cases, in civil matters it is otherwise. 6 Acts of God wrong no one, in other words; no one is responsible for inevitable accidents.' See ACCIDENT. Agents. The act of the agent within the scope of his authority is the act of his princi- pal ; but beyond such authority the agent alone is responsible, unless the act be ratified by such principal. See AGENCY. Anticipation. The doing or taking of a- thing before its proper time will not vitiate the act or discharge the obligation if no loss or damage occur, and the act be in good faith. Authority. To act for another, there must be a lawful delegation of power; to act for one's self, one must be under no legal disa- bility. This authority may be coupled with an ch. 315. c-i Swanst. ch. 282, n. and numerous cases there cited, d-8 Co. 291 ; Broom Max. 270; 13 Johns. 414. e-Broom Max, 270, 275, 329; 7 T. R. 514; 5 Bingh. N. C. 34, 468; 5 M. & G. 639, 368, 229: 5 Id" 380 ; 9 Cl. & F. 531 ; 4 N. Y. 159, 163, 105 ; 2 Bouv. Inst. n. 2211. f-2 Bl. Comm. 122; Co. 97 b; 5 Id. 87 Co. Litt. 206 a: 4 Taunt. 309 ; i T. R. 33. ACTS. interest or not; it may be express or implied, general or special, limited or unlimited. See AGENCY. Begun. An act already begun, whose com- pletion depends upon the will of the parties, may be recalled; but if it depends upon the consent of a third person, or on a contingency, it cannot be recalled.s Children. An infant is protected against his contracts, but not against his frauds or .)ther torts. h With regard to the responsibility of infants for crimes, the rule is that no infant within the age of seven years can be guilty of felony or be punished for any capital or less offence, for within that age an infant is, by pre- uimption of law, doli incapax (incapable of mischief or crime), and cannot be endowed with any discretion ; and against this presump- tion no averment can be received. This legal incapacity, however, ceases when the infant attains the age of fourteen years, after which period his act becomes subject to the same rule of construction as that of any other person. Between the ages of seven and fourteen years an infant is deemed prima facie (without proof to the contrary) to be doli incapax ; but in this case the maxim " malice supplies the want of mature years " applies. 1 See INFANTS. Coercion. Direct or positive coercion takes place when a man is by physical force com- pelled to do an act contrary to his will. Im- plied coercion exists where a person is legally under subjection to another, and is induced in consequence of such subjection to do an act contrary to his will. As will is necessary to the commission of a crime, or the making of a contract, a person coerced into either has no will on the subject, and is not responsible. i The command of a superior to an inferior, k of a parent to a child, 1 of a master to his servant, or a principal to his agent, may amount to coercion. So of a man who falls into the hands of the enemies of his country, and they compel him, through fear of death, to fight against it. See CRIMINAL LAW. Compulsion is forcible inducement to the commission of an act. Acts done under compulsion are not, in gen- eral, binding upon a party ; but when a man is compelled by lawful authority to do that which he ought to do, that compulsion does not affect the validity of the act ; as, for example, when a court of competent jurisdiction compels a party to execute a deed, under the pain of attachment 'for contempt, the grantor cannot object to it on the ground of compulsion. g-Bac. Max. Reg. 20 ; see Story Ag. 3 424. h-Latch. 21 ; 3 Wend. 391; 3 M'Cord, 257; i6Vt. 390; 15 Me. *33 ; 21 Wend. 615, 620 ; 6 Hill, 592, 594 ; 3 foster N. H. 516; i Gray, 506. He is even liable for his own torts, though he act by his father's command; 10 Vt. 71 ; or & M. 367. The law upon the responsibility of married women for^rimeis fully stated in i Bennett & H. Lead. Cr. Gas. 76-87. it-i Wash. C. C. 209, 220; 12 Met. iMass.) 56 ; i Blatch. C. C. 549 : 13 How. 115. 1-Broom Max. (ad Ed.) n. m-ij Mo. 246; 14 Id. 137, 340; 3 But if the court compelled a party to do an act forbidden by law, or had not jurisdiction over the parties, or the subject-matter, the act done by such compulsion would be void. Constraint. It is a general rule that when one is compelled to enter into a contract, or to perform any contract, there is no effectual consent, though ostensibly there is a form of it. In such a case the act or contract will be voidable or of no effect. But the constraint to thus annul or vitiate the act or contract must be " such as would shake a man of firmness and resolution." n Corporations and bodies politic. The acts of a corporation or body politic are to be treated as the acts of any other persons. Criminal acts. See CRIMINAL LAW. Diligence is the doing things in the proper time. There are three degrees of diligence : i. Ordinary diligence is that degree of dili- gence which men of ordinary prudence exer- cise in respect to their own concerns. 2. Great or extraordinary diligence is that which very prudent persons take of their own con- cerns. 3. Slight diligence is that degree of diligence which men, habitually careless, or ov little prudence, generally exercise in the man- agement of their own business. In the execution of every contract, trust, or undertaking some one of these degrees of dili- gence is applicable. Duress by imprisonment xists where a person actually loses his liberty. If one be illegally deprived of his liberty until he sign and seal a bond or the like, he may allege this duress, and avoid the bond.P But if a man be legally imprisoned, and, either to procure his discharge, or, on any other fair account, seal a bond or deed, this is not by duress of impris- onment, and he is not at liberty to avoid it.* Where the proceedings at law are a mere pre- text, the instrument may be avoided.' Duress by threats (which is either for fear of loss of life, or else for fear of mayhem, or of loss of limb) must be upon a sufficient reason. In this case a man may avoid his own act. A man may avoid his own act by reason of men- aces for fear of I . Loss of life ; 2. Loss of mem ber ; 3. Mayhem ; 4. Imprisonment.* Restraint of goods under circumstances of hardship will avoid a contract." In case of duress the act is considered involuntary/ The violence and threats must be such as are calculated to operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation, or fortune. The age, Cush. 279 ; ii Met. (Mass.) 66 ; $ Miss. 304 ; 14 Ala. ?6s; 22 Vt. 32 ; 2Denio,34i ; 14 jonns. 119. n-Erskine nst. 3, i, 16; 4, i, 26; i Bell Comm. B. 3, pt. i, ch. i, i, art. i, p. 295. o-Story Bailm.; 5 Kas. 433, 467. I>-2 Bay, 211 ; 9 Johns. 201; 10 Pet. 107. q-Co. 2d Inst. 482 ; sCaines, 168; 6 Mass. 511 ; i Lev. 69; i Hen. & M. 350; 17 Me. 338. r-Al. 92; i Bl. Comm. 136. 8-i Bl. Comm. 131. t Co. 2d Inst. ; 2 Rolle Abr. 124 ; Bac. Abr. Duress Murd. A.; 2 Str. 856; Foster C. N. L. 322; 2 Ld. Raym. 1578; Savigny Dr. Rom. 114. n-2 Bay, 211 ; 9 Johns. 201 ; 10 Pet. 137; bur see 2 Met. (Ky.) 445 ; 2 Gall. C. C. 337. V-Wolffini Inst. 5. ACTS. 47 sex. state of health, temper, and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration. Violence and threats are cause of nullity, not only where they are exercised on the contract- ing party, but when the wife, the husband, the descendants or ascendants of the party are the object of them. If the violence used be only j legal restraint, or the threat only of doing that which the party using them had a right to do, they will not invalidate the contract. A just and legal imprisonment, or threats of any measure authorized by law, and the circum- stances of the case, are of this description." But mere forms of law to cover coercive pro- ceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to i contract, will invalidate it ; and arrest, with- out cause of action, or a demand of bail in an unreasonable sum, or threat of such proceeding, oy this rule invalidate a contract made under their pressure. The abore rules all relate to cases where there may be some other motive besides the violence or threats for making the contract. When, however, there is no other cause for making the contract, any threats, even of slight injury, will invalidate it. x Fraud annuls all acts, obligations, and con- tracts into which it enters, and the law relieves the party defrauded. If both parties act fraudulently, neither can take advantage of the fraud of the other. If one acts fraudulently, he cannot set his own fraud aside for his own benefit. See FRAUD. Idiots, lunatics, and non compotes men- tis are in general absolved from all responsibility for their civil and criminal acts. They have no will, hence the exception. There are ex- ceptions, however, to this rule. See MEDICAL LAW. Judicial acts are those which belong to a judge and his jurisdiction, and over which he alone can exercise the functions of his office, and for which he is answerable to no other jurisdiction or power. But that which belongs neither to him nor to his jurisdiction he cannot lawfully take cognizance of; if he does, his acts are absolutely void.y A judicial act before one not a judge is void ; as to a ministerial act, from whomsoever it proceeds, let it be valid. 2 Ministerial acts are those which are per- formed under the authority of a superior, as opposed to judicial ; thus, the sheriff or con- ntable is bound to obey the judicial commands of the court. When an officer acts in both a judicial and ministerial capacity, he may be compelled to perform ministerial acts in a particular way; W-See Norris Peakes, Ev. 440, and cases cited ; also 6 Mass. 506, for the general rule at common law. x-Id. 1853 ; see generally, 2 Watts, 167 ; i Baily, 84 ; 6 Mass. 511; 6N. H. 508; a Gail. C. C. 337. y-Merlin Rep. K-Lofft, 458. a-See loMe. 377; Bac. Abr. J. P. (E); i Com. 295; 3 Id. 107; 9 Id. 275; 12 Id. 464. b-Bac. Max. Reg. 5. C-Dig. 10, 3 ; 10, i ; Com. Dig. PI. ; 3 M. 20; 3 M. 30. d-Hob. 134; 3 Wils. 126; Chitty PI. but when he acts in a judicial capacity he can only be required to proceed, the manner of so doing is left entirely to his judgment.* Misconduct. The wrongful riding of the horse of another, without his leave or license, and thereby causing its death or injury, is an act for which the party is responsible in dam- ages. The unlawful act or behavior of a per- son intrusted with the administration of justice, by which the rights ot the parties and the jus- tice of the case may have been affected, will impair and render void the proceeding affected by it. The unjust performance of some act which a party had no right, or which he con- tracted not, to do, will create no obligation for recompense therefor, but will render the party performing the act liable for the damages in- curred. Necessity is that which must be, and can- not be otherwise. It is irresistible power, compulsive force, physical or moral. Where a person's actions are determined by causes beyond his control, he acts from neces- sity, and is not a free agent. Whatever is done through necessity, is done without any intention ; and as the act is without will, and is compul- sory, the agent is not legally responsible. b " Necessity has no law," it is itself a law which cannot be avoided nor infringed. 6 Notwith- standing this, no person can plead necessity in excuse for crime. Negligence is the want of due diligence, a lack of care, an omission to do. It consists of the following degrees: I. Ordinary negli- gence is the want of ordinary diligence. 2. Slight negligence is the want of great dili- gence. 3. Gross negligence is the want of slight diligence. In general, where a party has caused an in- jury or loss to another by his negligence he is responsible for all the consequences." 1 A per- son who, during a dark night, drives his car- riage on the wrong side of the road, by which he commits an injury upon another, is responsi- ble for the consequences of his negligence. 6 See BAILMENTS. Non-performance is the neglect or failure to perform that which by one's act or contract, or by the requirements of the law, it becomes his duty to do. Human action is exactly conformable to the laws which require us to obey them ; their non- performance involves us in the natural conse- quences which follow. The neglect to comply with the terms of our contract makes us re- sponsible for the breach. Where a legislative act requires a person to do a thing, its non-performance will subject the party to punishment/ Notice is information given of some act done 129, 130; 2 H. & M. 423 ; i Strange, 596; 3 East. 596. e-3 East. 593; i Campb. 497; 2 Id. 466; 5 B. & P. 119; see Gale & W. Easements; 6 T. R. 659; i East. 106; 4 B. & Aid. 590; i Taunt. 568; 2 Slant. 272; 2 Bingh. 170; 5 Esp. 35, 263; 5 B. & C. 550. Whether the in- cautious conduct of the plaintiff will excuse the negli- gence of the defendant, see i O. B. 29; 4 Perr. & D. 642 ; 3 C. B. 9. f-See i Russoil Crimes, 48. ACTS. or to be performed, official, public, or private, to the public or an individual or individuals, corporations, companies, associations, etc., by words, writing, or printing. See ADVERTISE- MENT; NOTICE. Obedience is the compliance with a com- mand, prohibition, or known law and rule of duty prescribed. To constitute obedience, the act or forbearance to act must be in submis- sion to authoiity ; the command must be known io the person, and his compliance must be in consequence of it. A child, an apprentice, a pupil, a mariner, and a soldier, respectively owe obedience to the lawful command of the parent, the master, the teacher, commander or captain of the ship, and the military officer having command, and in case of disobedience, submission may be enforced by correction. Officers who obey the command of their superiors having jurisdiction of the subject matter are not liable for their acts. A sheriff or constable may, therefore, justify a trespass under an execution, where the court has juris- diction, although such execution was irregularly issued.s Officers acting in the scope of their jurisdic- tion and authority are justified in all their acts ; exceeding this they become liable as a private individual. Omission is a neglect or failure to do some- thing which a person has power to do, or which duty required to be done, or which the law requires. When a public law enjoins duties upon cer- tain officers, and they neglect to perform them, they may be indicted for the omission. The omission by private individuals may be pro- ductive of loss or injury. Omission may be innocent when no duty de- mands performance, and criminal when the duty is neglected. Overt acts are open acts as distinguished from secret design or intention not carried into effect. The mere contemplation or intention to commit a crime, although a moral sin, is not an act amenable to the law. The mere speculative wantonness of a licentious or mischievous imag- ination, however dangerous or even sanguinary in its object, can in no case amount to a crime ; but the instant any overt act is manifested the offender becomes amenable to the law. See CRIMINAL LAW. Perfidy is the violation of faith in agency, office, allegiance, connubial engagements, and transactions in the highest official circles. It is the act of one who has engaged his faith to do a thing and does not do it, but does the contrary. 11 Performance is the act of doing something previously contemplated or stipulated for the execution or completion of a thing. It is the act by which one is exonerated from the obliga- tion of his contract or undertaking, previously made or entered into,, y-Wolff, \ 390. b-Chitty Pr. 75 ; Hammond N. P. 48. Personal representatives, while acting i* such capacity and within the scope of their authority, are liable only as such. Where they exceed that authority they become personally and individually responsible for their acts. Persuasion is the persuading or the in- fluencing the mind with arguments or reasons offered, or by anything that moves the mind or passions, or inclines the will to a deter- mination. While the persuasion is confined within those limits which leave the mind free it may be usr d to influence another. But if such persuasion so far operates on the mind of the person in- fluenced that he will be deprived of a perfectly free will, it will vitiate his act. Public acts. See STATUTE LAW. Publication is the publishing or offering to public notice, notification to the people at large, either by words, writing, or printing. The act by which a thing is made public. To become effectual, awards, wills, laws, etc., must be published, i. e., made known. In this manner, also, public and judicial sales are an- nounced, the service of legal process made, and many other acts proclaimed. Publicity is the state of being public, open to the knowledge of the community, perform ance or transaction of business in the view of alJ persons who choose to be present. Courts must be open to the public ; there can be no secret tribunal, except the grand jury, which acts in the interest of the public, and whose functions are merely for investigation, and not trial. The acts of the legislature must be made public before they are of effect. They are, in general, made public either by their being placed upon a record provided for that purpose, and at all times open to public inspection, or by being made public through the medium of news- papers, or by distribution to the various officers by law entitled to them. Ratification is the giving sanction and validity to something done by another. An agreement to adopt an act performed by an- other for us. As a general rule, a person may elect whether he will adopt an unauthorized act or not. But having once ratified the act, upon a full knowl- edge of all the material circumstances, the rat- ification cannot be revoked or recalled, and he becomes bound as if he had originally author- ized the act. See AGENCY ; CONTRACTS. Reasonable acts are those governed by and under the influence of reason. They are sucii as the law requires. When an act is unnecessary, a party cannot be required to perform it as a reasonable act,' and a court will neither enforce its performance nor give a remedy for its non-performance. Refusal is the denial of anything demanded, solicited, or offered for acceptance; failure to perform a duty or agreement. In some cases a neglect to perform a duty which a party i i-9 Price Exch. 43 ; Yehr. Platt Cov. 342, 157. ACTS. 49 required by law, or his agreement, to do, will amount to a refusal. Refusal is also the right of taking in prefer- ence to others : the choice of taking or refusing. Option. Pre-emption. Thus a person has the refusal of a horse or a house, or the refusal of a place of business or an employment. Servants are those persons who engage, hire, or let their services to another, to be em- ployed at any work or occupation whatever, for the benefit of their employer, and for compen- sation, subject to the conditions of their em- ployment. A master is responsible for the tortuous acts of his servant, which were done in his service. The responsibility of the master grows out of, and begins and ends with, his control of the servant. On this ground rests the well-estab- lished distinction between the negligence of the servant and his wilful and malicious trespass ; the act in either case being done in the course of his employ. For the former the master must answer; for the latter he is not held liable, unless the trespass is proved to have been authorized or ratified by him. 1 The master is responsible for what is done by one who is his servant in fact, for the reason that he has such servant under his constant control, and may direct him from time to time as he sees fit; and therefore the acts of the servant are the acts of the master, because the servant is at all times only an instrument ; and one is not liable for a person who is servant only by construction, excepting so far as this essential element of control and direction exists between them. When a master gives general directions to his servant, trusting to his discretion, the master may be liable for his servant's misuse of his discretion; but if he gives specific direc- tions, and the servant transcends them, the master is not liable.J Where the negligent party exercises a distinct and independent call- ing, his employer is not liable, k and, if the negligence be committed in the performance of a piece of work undertaken in consequence of a special contract, in such case the contractor is solely responsible. 1 Skill is the familiar knowledge of any oc- cupation, art, or science, with readiness and dexterity in its execution r performance, or application to practical purposes. Every person who purports to have skill in a business, and undertakes for hire to perform it, is bound to do it with ordinary skill, and is responsible civilly in damages for want of it. m In some instances they will be responsible criminally. 11 See MEDICAL LAW. The degree of skill and diligence required rises in proportion to the value of the article and delicacy of the operation. See BAILMENTS. i-i East. 106; 4 B. &Ald. 590; 8 A. & E. 512; i Mo. & P. 241 ; 3 C. & P. 167 ; 30 E. L. & E. 167 ; 17 Mass. 479 ; 19 Wend. 343 ; 2 Comst. 479 ; 27 Conn. 274 ; 7 N. H. 227; 8 T. R. 531 ; 14 How. 468; 7 Cush. 385. j-28 Ills. 434. k-i2 A. & E. 737 ; 4 Q. B. 298; 2 Mich. 368 ; ii Wis. 180. 1-7Q. B. 960; 9 Exch. 702. m-n M. & W. 483. n-2 Russell Crimes, 288. o -Jones Bailm. qi ; 9 Kent Comin. 458,463; I Bell Comm. 459; 2 Ld. Stultification is the state of being mentally incapacitated from performing an act. To allege or prove to be insane, for the purpose of avoid- ing some act or contract. The rule laid down by the old authorities,! 1 that no man should be allowed to stultify him- self that is, plead disability through mental unsoundness was soon doubted as law.i and has been completely overturned, 1 " still this de- fence is frequently interposed. Time. When an act is to be done within a certaU period from a particular time, as, for example, within ten days, one day is to be taken inclu- sive and the other exclusive. 8 Transfer is the act by which the owner of a thing delivers it to another person with the intention of passing his rights in it to the latter ; to make over, to pass, to convey, to sell, to give. The title to land is conveyed by deed, the property in a bill of exchange is transferred 1/y indorsement, stocks are transferred by assign- ment, or entering the same under the name of the purchaser in the proper book. Uncertainty is the want of certainty; that which is unknown or vague. When the act to be performed is so vague in its terms that it cannot be certainly under- stood, it is of no effect. The act must be cer- tain in its essence, quality, and quantity, and that is certain which may be made certain.' Certainty is required in contracts, wiHs, pleadings, judgments, and indeed in all the acts on which courts have to give judgment; and if they be so vague and uncertain as not to be understood, they are, in general, invalid." See CONTRACTS. Vacation is the making void, or of no validity, annulling. An entry which has been made upon a public record, through fraud or imposition, may, upon application, be vacated. A charter, a franchise, an office of trust, etc., may be vacated. Void, Voidable. Void acts are those hav- ing no legal or binding force, such as are null, of no effect, not sufficient to bind parties or to convey or support a right. Voidable act* are those which maybe annulled or made void, or may be adjudged invalid, void, or of no effect. They have force and effect in conse- quence of some inherent quality only, but may be legally annulled or avoided. A contract between an infant and adult is voidable, bt. cause it may be avoided or confirmed on Uie infant's coming of age. Wife. The acts of the wife are consid- ered the acts of her husband. For her crimes, however, she is liable as if she were a single woman. Where she commits a crime in the Raym. 909, 918 ; Story Bailm. \ 431, et seq. ; 2 Greene Ev. ? 144. p-Litt. ji 405 ; 4 Co. 123 ; Cro. Eliz. 398. |-i Hogg, 414 ; 2 Sharsw. Bl. Comm. 292. r-4 Kent Comm. 451. S-See Hob. 139; Cowp. 714; Dougl. 463; 2 Mod. 280; 3 Penn. St. 200; i S. & R. 43 ; 3 B. & Aid. 581 ; 3 East. 407; Com. Dig. Estates (G8), Tempi. (A) Chitty Pr. 69, 147. t-Co. Litt. 43. u-i Russ & M. 116 ; i Chitty Pr. 123 ; 2 Martin (N. S.) 530. AFFIDAVIT. presence of her husband, unless it is of a very aggravated character, she is presumed to act by his coercion, and, unless the contrary is proved, she will, in the absence of a statute to the con- trary, be held irresponsible. 'Writing is the forming of letters and char- acters upon paper, parchment, cloth, wood, stone, or other material, for the purpose of re- cording the ideas which the words or characters express. Printing is construed to mean writing. Many contracts must be in writing, all deeds for the conveyance of real estate must be in writing. Records, bonds, bills of exchange, and many other obligations and undertakings, must be made in writing. Act of God. See ACCIDENT. Act in Pals. See PRACTICE. Action at Law. See PRACTICE. Actual Damages. See DAMAGES. Actuary. See CORPORATIONS ; INSURANCE. Ad Valorem. See DUTIES. Addition. See NAME. Address. See LEGISLATION, PLEADING. Ademptioii. See LEGACY. Adjourned Term. See PRACTICE. Adjournment. See PRACTICE. Adjudication. See JUDGMENT. Adjustment. See INSURANCE. Administering: Poison. See CRIMINAL LAW. Administration. See ESTATE; GOVERNMENT. Administrator. See PERSONAL RELATIONS Admiral. See OFFICE AND OFFICERS. Admiralty. See COURTS. Admissions. See CORPORATIONS; EVIDENCE; PRACTICE. Admonition. See PRACTICE. Adolescence. See AGE; INFANTS. Adoption. See CHILDREN. Adult. See AGE; INFANTS. Adulteration. See CRIMINAL LAW. Adulterator. . See CRIMINAL LAW. Adulterine. See ADULTERY; CHILDREN. Adultery. See CRIMINAL LAW. Advancement. See GIFT. Advances. See AGENTS; LOAN. Adventure. See MERCANTILE LAW. Adverse Enjoyment. See REAL PROPERTY. Adverse Possession. See REAL PROPERTY. Advertisement. See NOTICE; PRACTICE. Advice. See MERCANTILE LAW. Advisement. See PRACTICE. Advocate. See AGENCY ; ATTORNEYS ; PRACTICE. Affection. See CONSIDERATION; PAYMENT. Affiance. See MARRIAGE. AFFIDAVITS. See EVIDENCE; PRACTICE; (VlTNESS. AN AFFIDAVIT is a statement or declaration reduced to writing and sworn or affirmed to before some officer who has authority to admin- ister an oath. It differs from a deposition in this : that in the latter the opposite party has an opportunity to cross-examine the witness, whereas an affidavit is always taken ex parted A counter affidavit is an affidavit made in opposition to one already made. Its essential requisites are the same as an affidavit. Amendments at common law, independent of any statutory provision on the subject, are, in all cases, in the discretion of the court, for the furtherance of justice. An amendment V-Gresly Eq. Ev. 413. w-iz Ad. & E. 217; 2 Pick. 550; 4T. R. 457; 4 Burr. 2568. x- Phil. (N. C.) L. 199. y-5 T. R. 364; Id. 83. z-8 T. R. 27; 7 East. 194; n Id. 315 ; 2 Wils. 224 ; 2 M. & S. 603. a-u Ohio, 263. b-2 Chitty, 19; 18 Eng. C. L. R. 235. c-? Hill, 77 ; 4 Denio, 71 ; Id. 258. d-3 N. Y. 41 ; 8 Id. 158. e-5 M. &G. 29!; 44 Eng. C. L. R. 159; i Duer,62; n N. Y. Leg. Obs. 313. f-r Chitty. 228; 18 Eng. C. L. R. 69; 7 How. Pr. 446. g-i Tidd, Pr. 496 ; 45 Barb. 594 ; where there is something to amend by, may be made in a criminal, as in a civil case.* But such amendment must be by leave of the court, and upon the terms prescribed. An affidavit amended by order of the court must be re-sworn to, or it is no affidavit. * Amounts, Descriptions, etc. An affidavit should be positive as to parties; as to a claim/ its nature, how it arose, upon what it is grounded, and the amount. 1 If the amount is uncertain, still some amount must be stated." The names of all the deponents should \>c mentioned. b In general, an affidavit nm>t describe the deponent sufficiently to show tlir.t he is entitled to offer it ; for example, that he is a party, or agent or attorney of a party, to the proceeding ; and this matter must be stated, not by way of recital, or as mere description, but as an allegation in the affidavit ; d the affidavit should show that they were severally sworn. 8 The jurat is that part of an affidavit where the officer certifies that the same was " sworn " before him. The jurat should state the day on which it was sworn ; f it need not specify the place where it was sworn, as the venue sufficiently shows that.s The jurat should be in special form where deponent is illiterate; 11 or blind; 1 other- wise, the common form is sufficient^ Where a deponent is a marksman, the fact of the affidavit having been read over to him, and his under- standing it, should be stated in the jurat. k The jurat must be signed by the officer with the addition of his official title. 1 An affidavit should show on its face that it was made before some officer competent to take affidavits. Seal. In the case of some officers the statutes conferring authority to take affidavits require also his seal to be affixed. Whenever an officer has an official seal he should affix it. Signature of affiant. The affidavit should be subscribed by the deponent or deponents." The absence of the party's signature does not prove that he was not sworn ; for it is not neces- sary to constitute an affidavit, unless required by statute that the party making should sign it. But there must be an official authentication.? Surplusage in an affidavit, not inconsistent with the substantial averments required by the statute, will not vitiate it.i Title of the action. The affidavit must in- telligibly refer to the cause in which it is made ; in other words, it should show by its title who is plaintiff and defendant, 1 " and the court in which the action is pending. The strict rule of common law is, that it must contain the exact title of the action. When there is no proceeding pending, the affidavit must not be i Abb. Pr. (N. S.) 258; 30 How. Pr. 161 ; 12 Wend. 223 ; 3 Hill, 461. h-i Tidd Pr. 495 ; 3 Moult. Ch. Pr. 551. i-5 Paige, 242. j-3 Edw. 239. k-3 Dowl. Pr. Cas. 599. l-i Denio, 429 ; ^ Caines, 128 ; see also 6 Cow. 728. m-6 How. Pr. 305. "n-Newl. Ch. 165; n Paige, Ch. 173. 0-4 Sm. & Marsh, 579. 8 Iowa, 310; 28 Ga. 27. p-2 Rob. (La.) 132 ; 3 Scam. 536; 8 Ga. 521 ; 7 Port. 483 ; 3 Ala. 709. q-6 S. & M. 276 ; n Karb. 520; 33 Miss. 190; 34 Id. 269; i La. -An. 725; iz Ohio St. 335. -T2 Hew. Pr. 401. AFFIDAVIT. ntitled ; but a superfluous title may be disre- garded as not affecting the substantial rights of the party. 8 Venue is the place where the affidavit is taken and must be stated (thus, State of , county, ss.) to show that it was taken within the officer's jurisdiction; 1 and an omis- sion of the venue from an affidavit is fatal. The venue is an essential part of every affida- vit, and prima fade evidence of the place where it was taken." If, by the venue, it appears that the affidavit was taken at a place beyond where the officer was authorized to act, it will not be received by the court. v The title of an action is generally as follows : ^unly? } ss ' m the Court. A. B., plaintiff, ) vs. > Affidavit for (state -what). C. D., defendant.) Venue is substantially the same everywhere, though stated differently in different states and countries. Ex- amples are as follows : State of , county, ss. (or set. or to-wit). State of , city, (or department, district, parish, town, township, or other place, where the officer resides tnd the affidavit is made.) Territory of , city (or town) of , ss. Province of , dominion of , etc. Kingdom of , city (or port) of , etc. Empire of , port of , etc. AFFIDAVIT FORMS. The affiant or deponent is sufficiently described in an affidavit, thus : That A. D. is (the agent or attorney of ) a party (or one of the parties) to this proceeding (or matter). The common form of jurat is either of the following forms ; Subscribed and sworn to before me this day of . (Officer's signature and official title .) Sworn to and subscribed this day of . (Officer's signattire and official title.) Commencement of an Affidavit. An affidavit to be effectual in law must be made before some competent court or officer, having authority to administer an oath ; and this oath must be administered within the court or officer's jurisdiction. Thus, if it is administered in Allen county, by a court or officer of Brown county, it would be insufficient, the court or offi- cer having no jurisdiction for this purpose in the latter county. The affidavit for general purposes would com- mence thus : State of , county, ss. A. B. , being duly sworn, says (or alleges) that, etc. If the affidavit is to be used in a foreign country it should commence thus : United States of America, State of, etc. Another form : State of , county, ss. (set. or to-wit). Be it remembered, that on this day of , etc. Or commence thus : On this day of , before me, the subscri- ber, one of the justices of the peace in and for said county, personally came (or appeared) A. B., of , and being by me duly sworn (or being by me sworn according to law) says (or alleges, or de- poses, or deposeth and saith) that, etc. If an affidavit is to be used in a civil or criminal ac- tion or suit, it should state the title of the action, thus : coln^yT' }- In the court. A. B., plaintiff, ) vs. V Affidavit (of , for) . C. D., defendant. ) State of , county of , ss. A. B. , being duly sworn, says (or alleges) that, etc. S-4 How. Pr. 95. t-i Barb. Ch. 601 ; 18 Barb. 408, and cases there cited, n-6 How Pr. 394; 18 Barb. 407, 408, and cases there cited ; 8 Paige, 428 ; i Barb. Ch. 218. It will be observed that a " statement of venue " is twice made in this form. The first relates to the court in which the action is pending, the second to the place where the affidavit is taken. Conclusion of an Affidavit. In order that the affidavit shall be effectual it must bear upon its face the evidence of its being duly made. This is done by the officers' bearing witness to and af- firming its having been so made, by his solemn declara- tion to that effect. This is called the jurat, to which his signature is absolutely necessary. An officer's official title should always accompany his signature. General Form of Conclusions or Jurats. Sworn (or affirmed) before me, this day of . (Officer's signature and official title.) . Subscribed and sworn to before me this day of . ( Officer's signature and title. ) In testimony whereof, I have hereunto set my hand (and affixed my official seal), this day of . [Seal.] (Officer's signature and title.) If an affiant is blind or illiterate it should be thus : Subscribed and sworn to before me, this day of , A. D. , the same having been in my Cresence (or by me) read to this affiant, he being lind (or illiterate), and understanding the same. [Seal. ] (Signature and official title.) If an affiant is a foreigner it should be thus : Subscribed and sworn to before me, this day of , A. D. , I having first sworn I. R., an interpreter, to interpret truly the same to this deponent, who is a foreigner, not understanding the English language, and he having so inter- preted the same to said deponent. [Seal.] (Signature and official title.) Affidavit General Forms. If made in a legal proceeding, set out the caption or title of the pleadings, which consist of: w i. The name of the State and county in which the action is brought. 2. The name of the court. 3. The names of the parties, plaintiff and defendant. State of , county (city of ), ss. A. B. (of ), being duly sworn, says (or alleges, or deposes and says) : That, etc. (setting out the matters to be alleged). (Signature of affiant.) Sworn (or affirmed) before me, this day of , A. D. . (Signature of officer.) Another. A. B., plaintiff, vs. C. D., defendan State of , county, ss. A. B. (and C. D.), being duly sworn (or affirmed), says (or severally say, each for himself ) : That he is plaintiff (or, that he is the agent \or at- torney] of the plaintiff) in the above entitled action. That, etc. (stating the facts). (Signed:) A. B. Subscribed and sworn to before me, this day of , A. D. . [Seal.] (Signature and official title.) Another. State of , county, to wit. A. B., of , being duly sworn, says, That h has been informed, and be1i=!v?s it to be true that, etc. (setting out the matters oj injormation, etc. ), and further says not. A. B. Sworn to this day of , A. D. , before me, C. D. (Official title.) Affidavit Accounts. See ACCOUNTS. By administrator, assignee, executor guardian, trustee, etc. State of , county, ss. Before me, the undersigned, one of the justices of the peace of said county, personally appeared A. T. (administrator, assignee, executor, guardian, or trustee, as the case may be), aforesaid, who does de- pose and say, that the above account is just and true to the best of his knowledge and belief. (Signed) A. T. Sworn and subscribed, this day of , A. D. . J. P., Justice of the Peace. V-2 How. Pr.86 ; Id. 127 ; Id. 181 ; 18 Barb. 408, and cases there cited, w-i Chitty PI. 261, 527, 528 ; i Arcjj PI. 72, 168; Steph. PI. 440; i Marsh, 341 Sinotner. ff, ) > In the court. int.) AFFIDAVIT. Another. State of , county, ss. A. T. , being duly sworn, says : That he is administrator of the estate of D. D., of , deceased ; or (That he is the assignee of the estate of I. T.,of , insolvent (or B. T., of , bankrupt) ; or (That he is the executor (or one of the executors) of the last will and testament of D. D., of , deceased); or (That he is guardian of the (person and) estate of I. D., minor heir of D. D., of , deceased); or (That he is trustee of the trust fund, of - , etc.) That the above (annexed, foregoing, or within) account (and the schedules therein referred to) contain a full and true, complete and perfect account of his administrator- (assignee- executor- guardian- or trustee-) ship, to the best of his knowl- edge and belief. (Signed.} A. T. Subscribed and sworn to before me this day of , A. D. . C. C. , Clerk. (Signature and official title of officer authorized 1 to administer oath.) Another. State of , county, ss. A. T. (administrator of the estate [or executor of the last will and testament] of D. D., deceased, or assignee of I. T., insolvent, or B. T., bankrupt, or guardian of the [estate and] person of I. D., minor heir of D. D., deceased, or trustee of the fund, etc.\ swears that the foregoing account presented is just and true ; Or, Swears that the foregoing account is just and true (or correct) as he verily believes ; Or, Swears that the foregoing account is a full and correct exhibit of his doings as such (adminis- ter, etc. ) ; Or, Swears that the foregoing is a full and accurate account of his (administration, etc.) of said estate. A. T. Sworn (or affirmed) to and subscribed by said A. T. , before me this day of , A. D. . (Signature and official title!) Another. Date . The city (county or township) of , Dr. to A. B. & Co. Date. i, To loco Blank Licenses. i, To i " Record, i, To, etc. State of , county, ss. I, the undersigned, do solemnly swear that the above account is just and correct ; is due and re- mains unpaid (and that the charges therein are the customary and usual retail [or wholesale or market] prices therefor). (Signed) A. B. Subscribed and sworn to before me this day of , A. D. . E. F. ( Official title.) If the officer administering the oath have an official seal it should also be annexed. Another. State of , county, ss. On this day of , A. D. , before me, the subscriber, one of the justices of the peace in and for said county, personally came A. B., of , and being (duly) sworn (according to law) de- poses and says : That the above account, as stated, is just and true. That the above sum of dollars is now justly due and owing to this deponent by the above- named C. D. That >e, the said A. B., has never received the same, or any part thereof, either directly or indi- rectly, nor any person for him, by his direction or order, knowledge or consent. A. B. Sworn and subscribed before me this day of , A. D. . J. P., Justice of the Peace. Affidavit Acknowledgment. State of , county, ss. Be it remembered, that on this day of , A. D. , before me, O. R., a , in and for said county, personally came W. T., one of the sub- scribing witnesses to the above (annexed, foregoing, or within) instrument of writing, and being (duly) worn (or affirmed) says : That he, the said W. T. and N. S., the sub scribing witnesses to said instrument of writing, were (on the day of ) both present and did see the above-named A. B. sign (and seal), and as his act and deed acknowledge and deliver said instrument. That thereupon said W- T. and N. S. did sub- scribe their names as witnesses to the same. In testimony whereof, I have hereunto set my hand and affixed my official (or notarial) seal th day and year first above written. [Seal.\ O. R. (officia.1 title.) Affidavit Arbitration. See AGENCY, ARBITRATION. Affidavit Arrest. See ARREST, PLEADING, PRACTICE. A ffidavit Assets. State of , county, ss. A. B. , being duly sworn, says (or alleges) : That he is the owner of the (in fee) of the fol- lowing described (unencumbered) real estate, to wit (describing it) ; all of the aggregate value o' dollars. That he is the owner (absolutely) of the follow ing described (unencumbered) personal propertj, to wit (describing it); all of the aggregate value of dollars. That he is worth dollars over and above all his debts, exemptions and liabilities. (Signed) A. B. Subscribed and sworn to before me this day of , A. D . O. R. (official title). [Seal.] Affidavit Attachment. See ATTACHMENT, PLEADING, PRACTICE. Affidavit Defence. See DEFENCES, post. A. B.) vs. > In the court. C. D.j State of , county, ss. C. D., being duly sworn, says : That he is the (agent or attorney of the) defendant in the above entitled action. That he (said defendant; has a just and legal de- fence to the whole (or part) of the plaintiff's de- mand in said action. That the (character or) nature of said defence is as follows (describing defence). (Signed) C. D. Subscribed and sworn to, etc. Affidavit Foreign. To be used in a foreign country or state. co^r^tyT' } 8S - Affi davit concerning . (Be it known, or) Be it remembered that on {his day of , A. D. .before me,O. R.,a , in and for , residing at the , of , duly commissioned and sworn, and by law authorized to administer oaths and affirmations, personally appeared (or came; A. B., of , and being by me duly sworn (or affirmed) did depose and say : That, etc. (setting forth the matters and things sworn or affirmed). (Signature of deponent.) In testimony whereof, I have hereunto set my hand and affixed my seal of office the day and year first above written. [Seal.} (Signature of officer and his official title) Affidavit Notices, Etc. Of service of notice. See PUBLICATION, below. (Title of the action, if any.) State of , county, ss. A. B., being duly sworn, says : That he served a ( , of which the within is a tn* copy, or) copy of the within on the withii,- named C. D., on the day of , A. D. , at o'clock, m., by leaving the same at (his [last], usual place of residence, or at his dwelling-house, or at his office, or counting-room, store, shop, etc.) in (in the presence of , a ), etc. A. B. Subscribed and sworn to this day of . A. D. . (Signature and official title.) Affidavit Partners. Limited or special partnership. To be indorsed ot the tack of certificate of partnership. State of , county, .ss. AFFIDAVIT AGENCY. 53 A. B., being duly sworn, says, that he is one of the general partners of the within-named part- nership, and that the amount of money con- tributed by each of the within-named special partners to the common stock thereof, is a.s fol- lows : E. F., dollars, G. H., dollars, which said amounts have been actually and in good faith contributed and applied to the same. A. B. Subscribed and sworn to before me this day of , A. D. . J. P., Justice of the Peace. Affidavit Petition. See PLEADINGS. State of , county, ss. A. B., being duly sworn, says : That the facts set forth in the above (foregoing, or within) petition are true to the best of his knowledge and belief (or, as he verily believes). Subscribed and sworn to, etc. A. B. Affidavit Publication. See PUBLICATION. State of , county, ss. P. P., being duly sworn, says, that he is the printer of (or is in the employ of P. P., the printer of) the , a newspaper published in, and of general circulation in said county; and that the notice, of which the annexed is a true copy, was published for consecutive (days or) weeks in said newspaper commencing on the day of , A. D. . P. P. Subscribed and sworn to before me this day of , A. D. . J. P. , Justice of the Peace. Affidavit Signature. See SIGNATURE. Of -witness, deceased or absent, to a conveyance, etc. State of , county, ss. Be it remembered, that on the day of , A. D. , before me, the undersigned, O. R., a , in and for said county, personally appeared (si-came) E. T., who being duly sworn (or affirmed), deposes and says : That S. W. , one of the subscribing witnesses to tlie within , is (now absent from this State, or de- riased), etc. That he has frequently (and between the day of and the day of ) seen said S. W. write. That he is well acquainted with the hand- in riting of said S. W. That (he verily believes that) the name of said '3. W., signed to the same as one of the attesting witnesses, is the individual and proper hand- writing of said S. W. E. T. Subscribed and sworn to, etc. Affidavit Sureties. State (or Commonwealth) of , county, ss. We, the undersigned, sureties on the within (or annexed) undertaking, do solemnly swear that we are residents of said county and State, and that we are each of us severally worth dollars-beyond the amount of our debts, exemp- tions, and liabilities, and have property therein subject to execution equal to said sum. So help us God. S. R. T. Y. Subscribed and sworn to before me, this day of , A. D. . (Signature and official title.) Affiliation. See CHILDREN. Affinity. See MARRIAGE. Affirmance. See CONTRACTS. Affirmation. See PRACTICE. Affirmative. See ISSUE; PRACTICE. Affirmative Pregnant. See PLEADING. Affray. See CRIMINAL LAW. Affreightment. See MARITIME LAW. Aforesaid. See PRACTICE. Aforethought. See CRIMINAL LAW. q-Prof. Parker Lect. 1851. r-i Liverm. Ag. 6, 614. 8-2 Kent. Comm. 614. t-i Liverm. Ag. 44; Paley Ag 172 ; Co. Litt. 207 a.; Story Ag. ( 4 th ed.) 102 ; Brooni Max. 715; 2 Bouv. Inst. 25; 4 Id. 26; 8 Wheat 363 7 Exch. 726; 10 Id. 845; 9 C. B. 532,607; 14 Id. 53. Against the Form of the Statute, etc. See CRIMINAL LAW. Against the Will. See CRIMINAL LAW. Age. See PERSONAL RELATIONS. AGENCY. See ASSIGNMENT ; ATTORNEYS; CON- TRACTS; PARTNERSHIP. AGENCY is a relation between two or more persons, by which one party, usually called the agent or attorney, is authorized to do certain acts for, or in relation to the rights of property of, the other, who is denominated the principal, constituent, or employer.' The business of the agency may concern either the property of the principal, of a third person, or of the principal and a third person, or of the principal and the agent, but must not relate solely to the business of the agent. A contract in relation to an illegal or immoral transaction cannot be the foundation of a legal agency. r The agency must be antecedently given, or subsequently adopted ; and in the latter case there must be an act of recognition, or an ac- quiescence in the act of the agent, from which a recognition may be fairly implied. 8 If, with full knowledge of what the agent has done, the principal ratify the act, the ratification will be equivalent to an original authority, according to the maxim, "subsequent ratification is equiv- alent to prior command."* An intention to ratify may be presumed from the silence of the principal, who has received a letter from the agent, informing him of what has been done on his account." The authority may be general when it extends to all acts connected with a particular business or employment; or special when it is confined to a single act. v If the powers are special, they form the limits of the authority; if general, they will be more liberally construed, according to the necessities of the occasion and the course of the transaction. The creation of an agency, when express, may be either by deed, in writing not by deed, or by a verbal delegation of authority.* When the agency is not express it may be inferred from the relation of the parties and the nature of the employment, without proof of any ex- press appointment. 1 In most of the ordinary transactions of business the agency is either conferred verbally, or is implied from circum- stances. But where the act is required to be done in the name of the principal by deed, the authority to the agent must also be by deed, unless the principal be present, and verbally 01 impliedly authorize the agent to fix his name to the deed.? Adoption or Confirmation. As agency may be presumed from repeated acts of the agent, adopted and confirmed by the principal previ- ously to the contract in which the question is raised, z so such agency may be confirmed and established by a subsequent ratification ; where H. 263 ; 3 Blackf. 436. W-2 Kent Comm. 612 ; 3 Chit. C. L. 104 ; 9 Ves. Ch. 250 ; n Mass. 27, 97, 288 ; i Binn. 45; 4 Johns. Ch. 667. x-2 Kent Comm. 613 ; 15 East, 400; i Wash. 19; 5 Day, 556. y-i Liverm. Ag. 35; Paley Ag. 157; Story Ag. jsj> 49, 51 ; 5 Binn. 613; i Wend. 424; 9 Id. 54, 68; 12 id. 525; 148. & R. 331 Z-Holt, 278 ; 4 Campb. 88 ; 3 Esp. 60; i Gray 54 AGENCY. any one contracts as agent without naming a principal, his acts enure to the benefit of the party, although at the time uncertain and un- known, for whom it shall turn out that he in- tended to act, provided the party thus entitled to be principal ratify the contract. 11 And, on the other hand, if the principal accept, receive, and hold the proceeds or beneficial results of such contract, he will be estopped from denying an original authority, or a ratification. 8 And if a party does not disavow the acts of his agent as soon as he can after they come to his knowl- edge, he makes these acts his own.* An adop- tion of the agency in part adopts as to the whole." A principal discharges his agent from respon- sibility for deviation from his instructions when he accepts the benefit of his act. r He may re- ject the transaction altogether ; w and if he advanced money on goods which his agent purchased in violation of his authority he is not bound to return the goods to the agent when he repudiates the sale, but has a lien on them, and may hold them as the property of the agent. x But he must reject the transaction at once, and decisively, as soon as fully acquainted with it. For, if he delays in doing this, that he may Slave his chance of making a profit, or if he perform acts of ownership over the property, he accepts it and confirms the doings of the agent.y An agent is one who undertakes to transact some business, or manage some affair, for an- other, by the authority and on the account of the latter, and to render an account of it. z The term agent is one of a very wide applica- tion, and includes a great many classes of per- sons to which distinctive appellations are given, as factors, brokers, attorneys, cashiers of banks, auctioneers, clerks, supercargoes, consignees, ships' husbands, masters of ships, and the like. a A general agent is one authorized to trans- act all his principal's business, or all his business of some particular kind, b or at some particular place. r-6 Man. & G. 242; 5 B. & C. 909; 13 East. 274; 12 M. & W. 226; i Br. & B. 282; 2 M. &Sel.485; 5 Met. 192; 2 Q. B. 143; 5 East. 491; i4jur. 142. s-i L. Raym. 224, 225; n Mod. 72; 13 Ga. 46; 21 Conn. 142. 627; 4 T. R. 211, 217; 18 Me. 436; 32 Q. B. 780; 9 Pet. 607 ; 8 Gil. & Johns. 248, 323 ; 7 Hill (N. Y.) 128 ; 6 Pick. 198 ; 26 Wend. 192. t-14 Serg. & Rawle, 27 ; 8 How. 134; 10 Paige. 126; 16 Pcnn. 289; i Gray, 139. 11-2 Stra. 859 ; 4 T. R. 211 ; 7 East. 164 ; 7 B. & C. 310 ; i Scott N. R. 685 ; 13 N. H. 145 ; i Comst. 447 ; 8 Pick. 56; 19 Id. 300; 23 Vt. 565; 9 Ga. 70; 2 La. An. 375, 324; 5 Esp. 77; 4 Tyr. 485; 7 B. & C. 310; 12 Johns. 300; 4 Mason, 206. v-2 Freem. 48; i B. & C. 186. W- 10 East. 158; 2 Ves. Sen. 644; Ambl. 740; i J. J. Marsh. 285-294 ; Sugden Pow. ch. 9,$ 8 ; 5 Yerger, 71 ; i Smedes & M. 17 ; i Cr. & J. 316. X-i Ves. Sen. 510 ; 7 Ves. 240-247. y-i B. & C. 186; Ves. Sen. 509. r.-i Liverm. Ag. 67 ; 2 Bouv. Inst. 3. a-The terms "agent" and "attorney" are often used synony- mously. Thus, a letter or power of attorney is con- stantly spoken of as the formal instrument by which an agency is created. Paley Ag. (Dunlap's ed.) in. h-But it is not always easy to find a precise rule which determines with certainty between these two kinds of agency. A manufacturing corporation may authorize A to purchase all their cotton, and he is then their gen- eral agent for this special purpose, or to purchase all the cotton they may have occasion to buy in New Orleans, A special agent is one authorized to da one or more special things,* in pursuance of particular instructions, or within restric- tions necessarily implied from the act to be done. The importance of the distinction lies in the rule, that if a special agent exceeds his author- ity, the principal is not bound ; d but if a gen- eral agent exceeds his authority the principal is bound, 8 provided the agent acted within the ordinary and usual scope of the business he was authorized to transact, and the party deal- ing with the agent did not know that he ex- ceeded his authority.' Any specific authority must be strictly pursued ; as, for example, one known to be the agent to settle claims, and with specific authority to this effect, cannot be sup- posed to have authority to commute them.* The general rule is, as to the public, that the authority of a general agent may be regarded by them as measured by the usual extent of his employment. 11 APPOINTMENT. An agent, generally, may be appointed by parol, and so authorized to do anything which does not require him to execute a deed for his principal. 1 He may be author- ized by parol to make and sign contracts in writing, and may be authorized without writing to make even those contracts which are not binding upon his principal unless in writing signed by him.J A parol ratification is equiva- lent to an original authority. 11 An authority is presumed or raised by implication of law, on the ground that the principal has justified the belief that he has given such authority, in cases where he has employed a person in his regular employment, 1 as, where one sends goods to an auctioneer, or to a common repository room for sale, the bailee has an implied authority to sell.* 1 Such presumptions frequently arise in the case of a wife," or of a domestic servant, or of a son who has been permitted for a considerable time to transact a particular business for his father,? as to sign bills, etc. It must be remembered, and then he may be called their general agent for this special purpose in that place. Or to purchase the car- goes that shall come from such a plantation, or shall ar- rive in such a ship or ships, or five hundred bales of cotton, and then he would be regarded as their particu- lar agent for this particular transaction. c-4i Ind. 288. d-3 M. & W. 178 ; 7 Id. 427; 8 Id. 505; i Esp. in ; 2 Cr. & M. 391; 4 M. &W. 155; 5 Id. 645; i Y. & J. 457; Ambl. 495; 21 Penn. St. 507; 13 N. H.538; 24 How. 536. e-i2 C. L. & F. 248-273; 10 Mod. 199; Malloy B. ch. 10, jj 27. f-4 La. An 409; 4 H. & N. (Exch.) 851. g'-i Wash. C. C. 454; n Barb. 652; 7 B. 6 C. 283 ; 5 M. & W. 235 ; 5 Bing. 442 ; i Taunt. 347 ; 7 M. & W. 157; i V. & Coll. 394; i East. 335 ; 5 B. & Aid. 204; 6 T. R. 591 ; 2 H. Bl. 618; n Gratt 269 ; Id. 281; 4 Esp. 114; 13 Mass. 178; i Pick. 215; 17 Mass. 58 : 4 Watts, 222 ; 10 Johns. 114; 4 La. An. 409 ; 7 M. & W. 595. h-is East. 38; Id. 400; 26 Vt. 112. i-2 Kent Com. 612 ; q Cl. & F. 818, 850; 5 Taunt. 307; 14 S. & R. 331 ; 5 Mass, n : 5 Binn. 613. j-8 Pick. 9 ; i Binn. 450; i Sch. & L. 22 ; 9 Ves. 234-250. By a pro- vision of the Statute of Frauds, an agent to assign or grant any lease, estate, or interest of, in, or out of lands, exceeding one year in duration, must be authorized thereto in writing, k-4 Bing. 722. l-i6 Barb. 72 ; 2 Mich. 109; 26 E. L. & E. 536. rn-is 351.38. 11-7 Bingh. 565 ; 3 M. & W. 505 ; 2 C. R. & J. 493; 3 Nev. & M. 422 ; 8 C. & H. 506 ; 22 Q. B. 460. 0-5 Esp. 75; aU. &W. 181. p-2 Stark. 368. ' AGENCY. 55 however, tnat an agent employed for a special purpose derives from this no general authority from his principal.' Many persons who are disqualified from act- ing for themselves, such as infants, aliens, out- laws, and others, may yet act as agents in the execution of a naked authority/ Per- sons non compos mentis cannot be agents for others ; nor can a person act as agent in a transaction wherein he has an adverse inter- est or employment. 8 And whenever the agent (holds a fiduciary relation he cannot contract with the same general binding force with his principal as when such relation does not exist.* Del Credere Commission is one under which an agent, in consideration of an additional pre- mium, engages to insure to his principal not only the solvency of the debtor but the punctual discharge of the debt, and he is liable, in the first instance, without any demand from the debtor." AUTHORITY is the lawful delegation of power by one person to another. Express authority is that given explicitly, either in writing or verbally. Implied authority is that which the conduct of person possessing the power warrants, and which the law presumes. General authority is that which authorizes the agent to do everything connected with a particular business. v Special authority is that which is confined to an individual transaction. w Limited authority is that where the agent is bound by precise instructions. Unlimited authority is that where the agent is left to pursue his own discretion. Authority coupled with an interest is an authority given to an agent for a valuable con- sideration, or which forms a part of a security. Naked authority is that where the principal delegates the power to the agent wholly for the benefit of the former. 1 The right on the part of the agent to act is termed his authority or power. In some in- stances the authority or power must be exercised in the name of the principal, and the act done is for his benefit alone. In others, it may be ex- ecuted in the name of the agent, and if the power is coupled with an interest on the part of the agant, it may be executed for his own benefit.? q-i5 M. & W. 517; i6Law J., C. P. 240; 3 Exch. 268 : 5 Sanf. 121. r-i Li verm. Ag. 32 ; Co. Litt. 252, a; Story Ag. i. S-2 Ves. Ch. 317; n Clark & F. Ho. L. 714; 3 Beav. Rolls 783; 2 Campb. 203; 2 Chitty Bail. 205; 30 Me. 431 ; 24 Ala. (N. S.) 358; 3 Denio, 575; 19 Barb. 595; 20 Id. 470; 6 La. 407; 7 Watts, 472. t- Paley Ag. 33-38; Story Ag. 9; i Liverm. Ag. 416-433 ; i Story Eq. Jur. |JS3 308, 328; 4 Mylne & C. 134; 14 Ves. Ch. 290; 3 Sumn. C. C. 476; 2 Johns. Ch. 251 ; n Paine Ch. 538; 5 Me. 420; 6 Pick. 198; 4 Conn. 717; 10 Pet. 269. u-i T. R. '1 12 ; Paley Ag. 39 ; Parsons' Contr. ; Story Ag. V-Story Ag. 17. It empowers him to bind his employer by all acts within the scope of his em- ployment; and it cannot be limited by any private order or direction not known to the party dealing with him. PnleyAg. 199-201. w -Story Ag. 19 ; 5 East. 400, 408 ; 6 Cow. 354. Such authority does not bind the em- ployer, unless it is strictly pursued ; for it is the business of the party dealing with the agent to examine his authority ; and, therefore, if there be any Qualification Construction of. An authority is to be so construed as to include, not only all the ne- cessary and proper means of executing it witk effect, but also all the various means which are justified or allowed by the usages of trade. 1 Delegation of. All persons, not under legal disability, may delegate to another authority to act for them in a matter which is lawful, and otherwise capable of being delegated.' But when a bare power or authority has been givea to another, the latter cannot, in general, dele- gate that authority, or any part of it, to a third person, for the obvious reason, that the princi- pal has relied upon the intelligence, skill, and ability of his agent, and cannot have the same confidence in a stranger. b A power to delegate his authority may, however, be given to the agent by express terms of substitution ; and sometimes such power is implied, us in the fol lowing cases : First. "When, by the law, such power is indispensable in order to accomplish the end proposed, as when goods are directed to be sold at auction, and the law forbids such sales except by licensed auctioneers." 1 Second. When the employment of such substitute is in the ordinary course of trade, as where it is the custom of trade to employ a ship-broker, or other agent, for the purpose of procuring freight, and the like. 6 Third. When it is understood by the parties to be the mode in which the par- ticular thing would or might be done/ Fourth. When the powers thus delegated are merely mechanical in their nature.^ An authority may be delegated by deed for any purpose whatever ; for whenever an author- ity by parol would be sufficient, one by deed will be equally so. When the authority is to do something, which must be performed through the medium of a deed, then the authority must also be by deed, and executed with all tha forms necessary to render the instrument per- fect ; unless, indeed, the principal be present, and verbally or impliedly authorize the agent to fix his name to the deed ; as, if a man be authorized to convey a tract of land, the letter (or power) of attorney must be by deed. h But a written authority is not required to authorize an agent to sign an unsealed paper; or a con- tract in writing not under seal, even where a statute makes it necessary that the contract, in order to bind the party, shall be in writing, un- or express restriction annexed thereto, it must be ob- served, otherwise the principal is discharged. Paley Ag. 202. x-A naked authority may be revoked; an authority coupled with an interest is irrevocable, y- Prof. Parker Lect. 1857; * Domat.<5. i tit. 15; Introd. Story Ag. 3 ; see post, tit. "Attorneys." z-Story Ag. {$58,60; i Liverm. Ag. 103,104; 6 S. & R. 146; i Wend. 218; 11111.177. a-Com. Dig. Atty. c. i; 9 Co. 75,6; Story Ag.6. b-StoryAg. ^13; i Liverm. Ag. 54,66; 2 Kent. Comm. 633; 5 Pet. 390; 3 Story C. C. 411,425; iMcMull. 453; 15 Pick. 303,307; 26 Wend. 485; ii Gill & J. 58; 5 111. 127, 133. c-i Liverm. Ag. 54, 56; i Hill, 505. d-6 S. & R. 386. e-2 M. & S. 301 ; 2 B. & P. 438 ; 3 Johns. Ch. 167, 178 ; 6 S. & R. 386. f-3 Chitty C. L. 206 ; 9 Ves. Ch. 234, 251, 253; i M. & S. 484; 2 Id. 301, 303, n. fjf-i Hill, 501 ; Bunb. 166; Sugden Prs. 176. h-i Liverm. Ag. 35; Paley Ag. (Lloyd Ed.) 157; Story Ag. 49, 51 ; 3 Chitty C. L. 195; i Binn. 613 ; 14 S. & R. 331 ; 2 Pick. 345 ; 5 Mass, n; $ Wend. 424; 9 Id. 54, 68 ; is Id. 535 ; n Ohio, 223. AGENCY. less the statute positively requires that the authority shall also be in writing. 1 " For most purposes the delegation may be in writing, not under seal, or verbally, or by the mere employment of an agent ; or it may be implied from the conduct of the employer, in sanctioning the credit to a person acting in his name. 1 When, however, the act is required to be done under seal, the delegation must also be under seal, unless the principal is present and verbally or impliedly authorizes the act.' Dissolution of. In general, an authority is revocable from its nature, unless it is given for a valuable consideration, is part of a security, or coupled with an interest." It may, in gen- eral, be revoked at any moment before the actual exercise of it; T and a revocation may be express or implied. The authority may be renounced by the agent before any part of it is executed, or when it is in part executed. w If, by the express terms of the commission, the authority of the agent be limited to a certain period, it will manifestly cease as soon as that period has ex- pired. The authority of the agent is, by the fact itself, positively determined by the com- pletion of the purpose for which it was given. Extent. The authority of an agent, unless the contrary clearly appears, is presumed to in- clude all the necessary and usual means of {;cecuting it with effect. x Where, however, the whole authority is conferred by a written instru- ment, its nature and extent must be ascertained fiom the instrument itself, and cannot be en- larged by parol evidence.? Generally, in private agencies, when an i Minority is given by the principal 1 to two or j ore persons to do an act, and no several a ithority is given, all the agents must concur it i doing it, in order to bind the principal, tlough one die or refuse.* The words "jointly * 5 ; * Taunt. 347 ; 5 B. & Aid. 204 ; 7 Rich. 45 ; i Pet. 264: 3 Cranch. 415. z-7 N. H. 253; i Dougl. (Mich.) 119; ii Ala. (N. S.) 755; i Bos. & P. 229; 3 T. R. 592. B- Paley Ag. 177 ; Story Ag. g 42 ; 3 Pick. 322 : 2 Id. 345 : 6 Id. 108 ; 12 Mass. 185 ; 23 Wend. 324 ; t Johns. 39 ; 9 W. & S. 56 ; 10 Vt. 532 ; 12 N. H. 226 ; i Gratt. 326. b- Paley Ag. (Lloyd's Ed.) 177, note. pie, on a consignment of goods for sale to two factors (whether they are partners or not) each of them is understood to possess the whole power over the goods for the purposes of the consignment. 4 In public agencies an authority executed by a majority will be sufficient.* Where a principal has held one out as his general agent, or authorized parties to so re- gard him by continued acquiescence and con- firmation, the principal cannot limit or qualify his own liability by instructions, or limitations, given by him to his agent, and not made known in any way to parties acting with such agent/ And where an agent is employed to transact some specific business, and only that, yet he binds his principal by such subordinate acts as are necessary to, or are usually and properlv done in connection with the principal act, or to carry the same into effect. * And he has a reasonable discretion as to the execution of his authority. 11 But an agent is not at liberty to exercise this discretion in the choice of a mode of performing the duty imposed on him, if some other mode, and that only, is fixed either by usage or by the orders of his principal, if he is a general agent ; or if he is a particular agent, by the principal's orders alone ; for then he must adopt the very mode and no other.- An authority to sell does not carry with it authority to sell on credit, unless such be the usage of the trade ; but if there be such usage, then the agent may sell on credit, unless specially instructed and required to sell only for cash.J And if he sells for credit, having no authority to do so, he becomes personally responsible to his principal for the whole debt.* So is he also if he blends his accounts of his principal with his own, or takes a note payable to himself. 1 Where the authority is oral and is known to the party dealing with the agent, usage may enlarge and affect the authority or contract ; but usage has not this power where the whole authority is in writing, and this is known to the party dealing with the agent, for such instrument must be strictly followed." If an agent to whom goods are intrusted for a particular purpose, sell the same to a person, or in a manner not within the scope of his authority, the principal may disaffirm the sale and recover the goods of the vendee, if he has not justified the vendee in believing the C-Co. Litt. 49, b; Dyer, 62 ; 5 B. & Aid. 628. d-i Liverm. Ag. 79 ; Story Ag. \ 44 ; 3 Wils. 94, 114 ; 20 Pick. 59; 24 Id. 13. e-i Co. Litt. 181, b. Com. Dig. Atty. c. 15 ; Bac. Abr. Authority C ; i T. R. 592. f-is East. 38 : Id. 400; 22 Wend. 348 ; 10 N. H. 538 ; i Met. 193; 10 Mod. 109; 5 Esp. 64; i Id. 350; n How. Pr. 80; 15 Penn. 172 ; 18 Id. 224; 7 M. &W.isi. g-6 M. & W. 461 ; 5 Esp. 75 ; 5 Bing. 442 ; 4 Campb. 163 ; 15 M. & W_. 489 ; 17 111. 277 ; i Sneed. 497 ; 5 Hill (N. Y.) ~ :h. 475. h-3 M'Lean, 156; i i-Ambl. 495 ; 7 M. & W. 595. 16; 12 Q. B. 765; i Exch. 475. h-3 M'Lean, 156; i Woodb. & M. 76, 89. i-Ambl. 495; 7 M. & W. 595. J-i2 Mod. 514; i Camp. 258; 6 Johns. 60; 5 Cowen, 473 ; i Bay, 294 ; 26 Wend. 223 ; 7 Rich. L. 525 ; i Greenl. 172, 179. fe-i NotE & M'Cord, 517; 4 Dallas, 389; 12 Mod. 514; i Campb. 258; 3 B. & Aid. 616; 3 Foster (N.H.) 360; 2 Stra. 1178; 5 T. R.6o4; 5 Ves. 211 ; 5 Johns. Ch. 417; 20 Ala. 578. l-i Dev. & B. 291 ; i Wash. C. C. 194, S. C. 445; 5 Leigh. 456; 7 Mass 36; 6 Cowen, 181. m-7 B. &C. 278, S. C; x Man. & R.f .66; i Pet. 264. 11-26 Wend. 192. AGENCY. 57 authority of the agent. If the principal sells goods by an agent, and the agent makes a material misrepresentation which he believes to be true, and his principal knows to be false, this is the falsehood of the principal, and avoids the sale.P The acts of an authorized agent are the acts of the principal.i Exercise of. An agent who has bare power or authority, from another, to do an act, must execute it himself, and cannot delegate his authority to a sub-agent; for the confidence being personal, it cannot be assigned to a stranger. r But the principal may, in direct terms, authorize his agent to delegate the whole, or any portion of his authority to another ; or the power to appoint a sub-agent may be implied, either from the terms of the original authority, from the ordinary custom of trade, or from the fact that it is indispensable in order to accomplish the end. 8 When the authority is special, it must, in general, be strictly pursued, or it will be void, unless the variance be merely circumstantial; 1 as, if it be to do an act upon condition, and the agent does it absolutely, it is void ; and -vice versa. If the person do less than the authority committed to him, the act is void ; but if he does that which he is authorized, and more, it is; good .or that which is warranted, and void for the ~est. Both of these rules, however, have many exceptions and limitations." An authority given, by the act of the principal, to two or more persons, cannot be executed by one, though one die or refuse ; v it being in such case construed strictly, and understood to he joint, and not several. w And an authority given to three, jointly and severally, is not, in genera!, well executed by two; but it must be done by one, or by all. x These rules apply to an authority of a private nature, saving in com- mercial transactions, which form an exception. Where, however, the authority is of a public nature, it may be executed by a majority ? Where an agent is authorized to make a contract for his principal in writing, it must, in general, be personally signed by him. 1 It is a rule, that an act done under a power of at- torney must be done in the name of the person who gives the power, and not merely in the attorney's name, though the latter be described as attorney in the instrument ; a but it matters not in what words it is done, if it sufficiently appear to be in the name of the principal. 15 0-3 Pick. 405; 5 Cush. 442. p-3 Campb. 506; 6 M. & W. 386 ; Id. 358 ; 33 Q. B. 58, 68 ; 21 Vt. 129 ; 7 Gratt. >2. q-4 Kas. 397. "r-Story Ag. 13; Li verm. 54-66; 2 Kent Comm. 633. S-i Liverm. Ag. 55 ; Paley Ag. (Dunlap Ed.) 175 ; Story Ag. \ 14 ; 9 Ves. Ch. 234, 251, 252. t-Co. Litt. 49 b, 181 b, 303 b: 6 T. R. 591 ; 2 H. 61.623. n-Paley Ag. 178, 179. V-Id. 177; Co. Litt. in 6; 181 6. w-Story Ag. g 42 ; 3 Pick. 232 ; 2 Id. 345 ; 3 Id. 198; 12 Mass. 185 ; 6 Johns. 39: 23 Wend. 324; to Vt. 532 ; 12 N. H. 226; 9 W. & S. 56. x-Co. Litt. 181 b; Bac. Abr. Authority C: i B. & P. 229, 234; 3 T. R. 592. y-24 Pick. 13 ; 9 Watts, 466 ; 9 S. & R. 99. z-Story Ag. ? 146 : 3 Merch. R. 237 : i Younge & V 387; 3 Mer. Ch! 235, 251, 252. a-Story Ag. g 147; n .".ass. 27, 29 ; 12 Id. 173, 175 ; 16 Pick. 347, 350; 22 Id. 158, 161 ; 8 Met. (Mass.) 442 ; 7 Wend. 68 ; 10 Id. 87- 171 ; 9 N. H. 263, 269, 270. b-For "A. B." (the princi- The strict rule of law in this respect applies, however, only to sealed instruments ; and the rule is further modified, even in such cases where the seal is not essential to the validity of the instrument.* An authority must be exercised within the time limited. 11 Instructions or orders given by a principal to his agent in relation to the business of the agency must be carefully complied with. An agent with instructions is bound to regard them in every point ; nor can he depart from them without making himself responsible for the consequences/ unless he is justified by matter of necessity .K If he has no instructions, or indistinct or partial instructions, his duty will depend upon the intention and under- standing of the parties, which may be gathered from the circumstances of the case, and espe- cially from the general custom and usage in relation to that kind of business. 11 But he cannot defend himself by showing a conformity to usage, if he has disobeyed positive instruc- tions. If loss issue from his disregard to his instructions, he must sustain it; if profit, he cannot retain it, but it belongs to his principal. 1 Justification of. The authority given must have been possessed by the person who dele- gates it, or it will be void; and it must be of a thing lawful, and be otherwise capable of being delegated, or it will not justify the person to whom it is given. 6 This power is the authority by which one person (called the donor) enables another (called the donee) to do some act for him. It is derivative or inherent. Powers Derivative are those received from another. When coupled with an interest it is a right or authority to do some act, together with an interest in the matter on which the power is to be exercised.J This kind of a power survives the person creating it, and in case of its excess in execution, renders the act valid so far as the authority extends, leaving it void as to the remainder only. Naked powers are those rights of authority disconnected from any interest of the donee in the subject-matter.* Inherent or natural powers are those enjoyed by their possessors by natural right, not having been received from another. Such are the powers of a people to establish a form of gov- ernment; of a father to control his children. The exercise of some of these powers are pal), "C. D." (the attorney), is held sufficient: Story Ag. ? 153; 6 B. Mon. 612; 3 Blackf. 55; 7 Cush. 215. If B. signs " B. for A." this is the signature of B., and he is the contracting party, although he makes the con- tract at the instance, and for the benefit of A. But, if he signs "A. by B.," then it is the contract of A., made by him, through his instrument, B. C-Story Ag. g{| 148, 154; Paley Ag. (Dunlap Ed.) 183, n; 8 Pick. 56; 17 Pet. 161. d-4 Campb. 279; Russell, Fact. & Brok. 313 e-Dig. 102; Kielw. 83; 5 Co. 80. f-i Cowen, 645; 3 Cranch. 415-439; i Wash. C. C. 454: 3 Id. 51; 4 Id. <;4Q ^ Johns. Cas. 36; 3 Flor. 27; i Story, 43; 2 A. & 57; 4 Bing. 66-72; 3 Ired. L. 538: 7 Hill (N. Y.) 128. K-4 Binn. 361 ; i Liverm. Ag. 368. h-i B. & Ad. 415 ; 10 A. & E. 27 ; 5 M. & W. 645 ; 4 Wash. C. C. 315: 12 Q. B. 765, 10 B. & C. 760. i-4Camp. 184; i Johns. Ch. 394; ii Leigh. 213. J-8 Wheat. 203. ls-3 Hill (N. Y.) 365. AGENCY. regulated and restricted by law. Mediate (or subordinate) powers are those incident to pri- mary powers given by a principal to his agent. Thus, an agent authorized to perform certain acts has power to employ all the incidents to his authority to accomplish the thing intended. The general authority given to collect, receive, and pay debts due by or to his principal is a primary power. In order to accomplish this it is frequently necessary to settle accounts, adjust disputed claims, resist unjust demands, and de- fend suits. These subordinate powers are called mediate powers. k Ratification, when express, is that made in epen and express terms. Implied ratification is that which the law presumes from the acts of the principal ; thus, if A. buys goods for B., and the latter knowing of the purchase receives them and applies them to his own use, the law will presume B.'s assent to the purchase. By ratifying a contract a person adopts the agency altogether, as well what is detrimental as that which is beneficial. 1 The principal has, as a general rule, the right to elect whether he will adopt an unauthor- ized act or not ; having once ratified the act, upon a full knowledge of all the material cir- cumstances, the ratification cannot be revoked or recalled, and the principal becomes bound as if he had originally authorized the act. The ratification of a lawful contract has a retrospective effect, and binds the principal from its date, and not only from the time of the ratification, for the ratification is equivalent to an original authority. 11 Such ratification will, in general, relieve the agent from all responsi- bility, when he would have otherwise been liable. See CONTRACTS. Recognition is the acknowledgment or avowal that something which has been done by one person in the name of another was done by authority of the latter. A recognition by the principal of the agency of another is, in the particular instance, evidence of the authority of the agent ; and this recognition may be ex- press or implied.? Revocation is recalling or revoking an authority conferred, or the annulling or vaca- ting of an instrument conferring a power previously made. The principal may, at any time, put an end to the relation between him- self and his agent by withdrawing the authority, unless the authority is coupled with an interest, or given for a valuable consideration. i And fc-i Story Ag. ? 58 ; see i Campb. 43, / 4 Td. 163 ; 6 S. &R. 149. 1-2 Str. 850; i Atk. Ch. 158; 4 T. R.an; 7 East. 164 ; 16 Martin, La. 105 ; i Ves. Ch. 509 ; Smith Merch. L. 60 : Story Ag. 9 250 ; 9 B. & C. 59. m-Story Ag. ? 250; Paley Ag. (Lloyd's Ed.) 171; 3 Chitty C. L. 197. n-Poth. Ob. n. 75 : 2 L. Raym. 930 : Campb. 150; 5 Burr. 2727; 2 H. Bl. 623; i B. & P. 316: 13 Johns. 367; 2 Johns. Cas. 424; 2 Mass. 106 ; Co. Litt. 707, a: Story Ag. (4th Ed. 1 ) 102; Broom. Max. 715 ; 2 R-iuv. Inst. 25 : 4 Id. 26 ; 8 Wheat. 363 ; 7 Exch. 726 ; 10 Td. 845 : 9 C. B. 532. 607; 14 Id. 53. 0-2 B. & B. 452 : see 16 Mass. 461 ; 8 Wend. 494 ; 10 Id. 399 : Storv Ag. ? 2-1. w-i Campb. 43, n, a; 4 Id. 88: i Esp. Cas. 61.' n-8 Wheat. 201 ; 2 Esp. 565 ; 10 B. & C. 731 : 3 Id. 482 ; f Ves 28 ; 2 M. & W. 371 ; i B. & Aid. 684 ; 9 C. B. 541 : 4 N. Y. Leg. Obs. 301 ; 14 Pet. 479. .105 ; Story Agency, % 466, 467,468; a Kent Comm. 644; a^ Pick. this countermand may, in general, at the mer will of the principal, be effected at any time before the contract is completed, 1 " even though there be an express agreement not to revoke. But when the authority or power is coupled with an interest, or when it is given for a valuable consideration, or when it is a part of security, then, unless there is an express stipu- lation that it shall be revocable, it cannot be re- voked. 8 Unless the power provides a specific mode of revocation (in which case it must be strictly followed) its authority may be revoked in any form the constituent or principal may adopt.* Where third parties have dealt with an agent clothed with general powers, whose acts have therefore bound his principal, and the principal revokes the authority he gave his agent, such principal will continue to be bound by the further acts of his agent, unless such third parties have knowledge of the revocation, or unless he does what he can to make the revocation as notorious and generally known to the world as the fact of the agency." This is usually done by advertising. Naked powers not coupled with an interest may always be revoked by the express act of the constituent or principal whenever he so elects, he being bound by all the acts of the agent until notice of the revocation ; until such notice the agent is entitled to compensation and indemnity for all acts done and liabilities incurred. The act of revocation is merely pro- visional and contingent until notice is com- municated to the agent. v Third persons whc deal with the agent before notice of the revo- cation of his powers are not affected by it. w But strangers who have never dealt with the agent before the revocation of his powers, if the principal has given public notice of the revoca- tion in such a manner as to render the fact generally known in the vicinity, will have no remedy against such principal. 1 Where, how- ever, the power was conferred in writing, and the agent retains and exhibits it as the evidence of his authority, so that strangers are fairly justified in believing in its continuance, having no adequate means of knowledge of its revo- cation, the acts of the agent will bind the principal J It is a question of fact whether, under all the circumstances, a party is justified in supposing the authority still continues. 1 An agent's authority terminates by the bank- ruptcy of either the principal or the agent," though not necessarily by the bankruptcy of the 330; 14 Pet. 479; 22 Pick. 40: 12 N. H. 239: 3 Comst. 78; 5 C. B. 895 ; 6 M. & W 670. r-3 Chitty C. & M. 223 ,' 2 Liverm. Ag. 309 ; Paley Ag. 185 ; Story Ag. 3$ 462, 46s. 8-Story Ag. ?? 476, 477 : 2 Liverm. Ag. 308^ 509; Paley Ag. 184, i8s; 2 Kent Comm. 643, 644 ; 2 Mass. C. C. 244, 342. t-8 Ired. 74 ; 6 Pick 108 ; Story Ac. ? 474. w-Stra. 506; 12 Mod. 346; 5 T. R. 215: 4 Munf. 130; 5 Binn. 305; nN. H. 397; 12(3.6.460; 4 Campb. 215. v-i Parsons Contr. 58 and notes ; 6 Ind. 231. w-iStr. 506; 5 T. R. 211-214; 12 Q. 8.460; 4 Campb. 215; 12 Mod. 346; 4 Munf. 130; 5 Binn. 305; 5 Dana, 513: 17 Mo. 204; n N. H. 397; 2 Kent. Comm. 644, and cases cited; n Ad. &" E. 589, 592. X-i Parsons Contr. 59, 60 : Dav. Dist. Ct. 287. y- ii N. H. 397. jg-12 Q. B. 460. -2 Kent Comm. 644, and notes; 4 Taunt. 544; 16 East. 382; 5 B. & Aid. 27. AGENCY. fatter. b Where the agent has a lien it may be enforced in the name of the assignee.* The authority of an agent may be revoked by death of either principal or agent. d In case of a naked authority the death of the principal terminates the authority of the agent by that event itself, and without notice either to the agent or those with whom he deals. Acts done in good faith in discharge of the agent's duty before knowledge of the death of his principal, and which enures to the benefit of the princi- pal's estate, are binding upon his personal representatives.' Where the agent has entered npon the business or incurred expenses he is entitled to compensation.' And if he has in- curred liabilities he is entitled to indemnity. 8 Powers coupled with an interest which are not revocable by the act of the principal during his life, are, nevertheless, annulled by his death, so far as any act in his name is concerned. 11 Joint authority by two persons terminates by the death of one of them. 1 A complete execution of the trust, or accom- plishment of the business or undertaking, operates an extinguishment of authority /> The agency may terminate by the expiration of the period which it was to exist, and to have effect; as, if an agency be created to endure a year, or until the happening of a contingency, it becomes extinct at the end of the year, or the happening of the contingency. 11 The extinction or destruction of the subject- matter of the agency destroys with it the power to accomplish the result intended.} The authority of the agent may be revoked by the incapacity of either principal or agent. Insanity either of the principal or agent terminates the agency. 1 But third persons, ignorant of the fact of insanity, and whose contract with the agent is fair and just, will be protected. An inquisition of lunacy is con- structive notice to all; n and the inquisition forming the basis of the commission is allowed to antedate the finding of the incapacity, in which case it would probably throw the burden of proof on the other party. If the power con- fer an interest upon the agent which can be enforced in his name, insanity will not operate as a revocation. Loss of the principal's interest operates as a revocation. The marriage of a feme sole terminates her power either as principal or agent,? though not necessarily so.' When the authority has been partially exe- cuted by the agent, if it admit of severance, or of being revoked as to the part which is un- b-Story Ag. ?? 485. 486 ; 12 Mod. 383 ; 3 Burr. 1469, 1471. C-Story Bailm. (S 211 : Story Ag. $ 486. l-Story Bailm. 209; i Kent. Comm. 645; Paley Ag. 185. e-Willes, 103; 10 M. & W. i ; Story Ag. 488; 4 Pet. 333. 334; * Humphr. 294; 12 N. H. 146; 4 Mete. Mass. 333; ii Leigh. 137. if-33 Erg. L. & F.q. 229; Dav. Dist. Ct. 287; Bac. Abr. Authority (E.l. g-Chitty Contr. 225, n, o. h-4 Campb. 272; Willes, 105, 563; 5 Esp. 117 ; 6 East. 356 ; 8 Wheat. 174 : 2 Kent. Comm. 646 : 2 Me. 14 ; Prec. , Ch. 125. i-2 Kent Comm. 645 ; is East. 592. j-Story Ag. \ 499 ; Story Bailm. 207 ; 2 Bouv. Inst. 51, 52. I* -Story Ag. % 480. 1-2 Kent Comm. 645, and cases cited in note. 111-10 N. H. 156. executed, it may be revoked as to that part ; but if it be not thus severable, and the agent by its execution in part will sustain damage, it cannot be revoked as to the unexecuted part, unless the agent be fully indemnified. r This revocation may be by a formal declaration pub- licly made known, or an informal writing, or by parol ; or it may be implied from circum- stances, as, if another person be appointed to do the same act." It takes effect from the time it is made known, and not before, both as regards the agent and third persons.* The determination may be by the renuncia- tion of the agent either before or after a part of the authority is executed ; u it should be ob- served, however, that if the renunciation be made after the authority has been partially exe- cuted, the agent, by renouncing it, becomes liable for the damages which may thereby be sustained by his principal/ or, by operation of law, in various ways. Powers coupled with an interest are, in gen- eral, not revocable. Being transferred upon consideration, a power is no more revocable than any other contract;* Whenever the power confers an interest in the subject-matter only, and not in the results, and constitutes an essential part of a security upon the faith of which money or other thing has been advanced or liability incurred, it is not revocable even by the death of the principal, but may be there- after executed, where it can be done wJ'.hout the use of the name of the principal. x The consignee of goods for sale who has incurred liability or made advances upon the faith of the consignment, acquires a power of sale which, to the extent of his interest, is not revocable or subject to the control of the consignor.? But if orders are given by the consignor contem- poraneously with the consignment and advances, in regard to the time and mode of sale, and which are, either expressly or impliedly, as- sented to by the consignee, he is not at liberty to depart from them afterward. But if no in- structions are given at the time of the consign- ment and advances the legal presumption is that the consignee has the ordinary right of fac- tors to sell according to the usages of trade and the general duty of factors, in the exercise of a sound discretion, and reimburse the ad- vances out of the proceeds, and that this right is not subject to the interference or control of the consignor. A pledge of personal property to secure the liabilities of the pledger, with an express power of sale, confers such an interest in the subject-matter that it will not be revoked by n-2 Kent. Comm. 645. O-Chitty Contr. 224, and notes, (Perkins Ed.) 1860. p-i Rolle Abr. 331. Authority (E. PI. 4); W. Jones, 388; 5 East. 266; 2 Kent. Comm. 645; u Vt. 545. q-Story Ag. <$ 485, 486: 12 Mod. 383; 3 Burr. 1469, 1471. r-Story Ag. ? 466. S-Story Ag. ? 474 ; 5 Binn. 305 ; 6 Pick. 198. t-Story Ag. # 470 ; Paley Ag. 188 ; 2 Liverm. Ag. 306, 310: 2 Kent Comm. 644; n N. H. 397. n-Story Ag. $478. v-Story Ag. ? 478 ; Jones Bailm. 101 ; 4 Jthns 84. w-i Parsons Contr. 61, and notes; Chitty Contr. 224, and notes (Perkins Ed. 1860); 7 Ves. Ch. 3, 8 X-i Caines Cas. i ; 3 B. & C. 842, 851 ; 2 Esp. Cas 565 ; 4 Campb. 272 ; 17 Mass. 234. y-i.* Pet. 479. AGENCY. his death. 1 But a power to pledge and sell the property of a constituent, and from the avails to reimburse advances made or liabilities in- curred by the appointee, is not so coupled with an interest as to be revocable.J The interest must exist in the subject-matter of the power, and not merely in the result of its exercise, to become irrevocable.* Hence, if one give a letter of credit agreeing to accept bills to a cer- tain amount within a limited time, the letter is revoked by death, and bills drawn after the death and before knowledge thereof, reaching the drawer, cannot be enforced against the estate of such deceased party. 1 All contracts which are to be executed in the name of the constituent or principal by virtue of an agency, although forming an essential part of a security upon the faith of which advances have been made, are of necessity revoked by the death of the constituent. Even a warrant of attorney to confess judgment, although not revocable by the act of the party, is revoked by his death. DUTIES AND LIABILITIES. The particular obligations of an agent vary in accordance to the nature, terms, and end of his employment. He is bound to execute the orders of his princi- pal, whenever, for a valuable consideration, he his undertaken to perform them." When his authority is limited by instructions it is his duty to adhere faithfully to those instructions; but cases of extreme necessity and unforeseen e nergency constitute exceptions to this rule;? a id where the agent is required to do an un- lawful or an immoral acti he may violate his ii structions with impunity.' If he have no S) iccific instructions, he must follow the accus- t 'med course of the business. 8 When the ttansaction may, with equal advantage to the principal, be done in two or more different \r ays, the agent may, in general, do it in either, provided a particular mode has not been pre- s:ribed to him.* He is to exercise the skill employed by persons of common capacity similarly engaged, and the same degree of dili- gence that persons of ordinary prudence are accustomed to use about their own affairs. 11 It is his duty to keep his principal informed of his doings, and to give him reasonable notice of whatever may be important to his interests. v He is also bound to keep regular accounts of business and money transactions, and to render his accounts to his principal at all reasonable I-io Paige Ch. 205. f-8 Wheat. 174; 6 Comm. 559. h-i5 N. H. 468. 1-28 Vt. 209. m-Paley Ag. 3 ; 2 L. Raym.siy. n-Story Ag. 189; 6 Cow. 128; 7 Id. 456; 20 Wend. 321. o- Paley Ag. 3, 4; 3 Bos. & P. 75 ; 5 Id. 269 ; Story Ag. \ 193 ; 3 Johns. Cas. 36 ; i Sandf. in ; 26Penn. St. 394; 14 Pet. 494. p-i Story, C. C. 45 ; 4 Binn. 361 ; 5 Day, 556 ; 26 Penn. St. 394 ; 4 Campb. 83. q-6 C. Rob. Adm. 207; 7 T. R. 157; n Wheat. 258. r-Story Ag. ?g 193, 194, 195 ; ii Mart. 636. s-Pnley Ag. 4 ; 4 Story Ag. ? 199 ; i Gall. 360. t-i Liverm. Ag. 103. n-Story Ag. ?i83; Paley Ag. 77,78; East. 348; 6 Taunt. 49=;: 10 Bing. 57; i Johns. 364; 20 Pick. 167; 6 Met. ("Mass.) 13; 24 Vt. 149. v-Paley Ag. 27, 38, 39; Story Ag. \ 208 ; 5 M. & W. 527; 4 W. & S. 305 ; i Story, C. C. 43, 56; 4 Rawle, 229; 6 Whart. 9; 13 Mart. 214. ^65. W-Paley At;. 47, 48 ; Story Ag. \ 203 ; Story Eq. Jnr. { 468, 623 ; i Taunt. 572 ; 8 Ves. 49 ; 14 Id. 510 ; 13 Id. f . i Id. 436; i Jac. & W. 135; 7 Ired. Eq. 211 ; 12 Q. times, and whenever called on, without con cealment or overcharge.* The responsibility of an agent, whether f'ot positive misconduct, or for deviation from in- structions, is not measured by the extent of hi. commission or compensation, but by the loss or injury which he may cause his principal. x And, in general, a verdict against a principal for the act of his servant, is the measure of damages which the former may recover from the latter.? An agent is bound to great diligence and care for his principal ; not the utmost possible, but all that a reasonable man, under the circum- stances, would take of his own affairs. 1 And he is bound to possess and exert the skill and knowledge necessary for the proper performance of the duties which he undertakes.* If an agent, without necessity, has mixed the property of his principal with his own in such a way that he cannot render an account precisely dis- criminating between the two, the whole of what is so indistinguishable is held to belong to the principal ; b for it was the duty of the agent to keep the property and accounts separate, and he must bear the responsibility and conse- quences for not doing so. If an agent em- ployed for any special purpose discharges his duty and does all he was required to do, he is entitled to full compensation, although the principal declines or refuses to take advantage of the agent's act, or even adopt it. A s to their principals, the liabilities of agents arise from a violation of duties and obligations to them by exceeding their authority, by mis- conduct, or by any negligence, omission, or act, by the natural result or just consequence of which the principal sustains a loss. And joint agents who have a common interest are liable for the misconduct and omissions of each other in violation of their duty, although the business has, in fact, been wholly transacted by one with the knowledge of the principal, and it ha? been privately agreed between themselves that neither shall be liable for the acts or losses of the other. 4 The degree of neglect which will make the agent responsible for damages varies according to the nature of the business and the relation in which he stands to his principal. The rule of common law is, that where a person holds him- self out as of a certain business, trade, and profession, and undertakes, whether gratuitously or otherwise, to perform an act which relates to B. 531 ; Johns. Ch. 62-108; i C. B. (N. S.^e. x-if Law T. 10 ; 2 Brock. 350; 6 Whart. g, 12 N. H. 239; 20 Wend. 321 ; i B. & Ad. 415. y-8 Taunt. 202 S. C. ; 2 Moore, 125. z-Co. Litt. 89, a; 10 Bing. 57; i Johns. Cas. 174 ; i Wash. C. C. 154 ; 4 Nev. & M. 170 ; 2 A. & E. 256; 4 B. & C. 345. a-One who undertakes to act in a professional or other clearly defined capacity, as that of a carpenter, blacksmith, or the like, is bound to exercise the skill appropriate to such trade or profession ; and this although the undertaking be gratuitous ; 4 B. & C 435 : i H. Bl. 161 ; 2 Chitty, 311 ; 8 C. & P. 479 ; 7 Foster (N. H.) 460 : n M. & W. 113. fo-is Ves. 436- 440 ; 8 Id. 46 ; it Id. 377 ; 2 Johns. Ch. 62-108 ; i C. B. (N. S.) 26. C-Story Ag. j) 217 c; Paley Ag. 7, 71, 74; i Liverm. Ag. 398 ; i B. & Ad. 415 ; 6 Hare Ch. 366; 12 Pick. 328; 20 Id. 167; ii Ohio, 363; 13 Wend. 518; 6 Whart. 9. d-i Liverm. Ag. 79-84; Story Ag. 232 Paley Ag. 52, 53; 7 Taunt. 403. AGENCY. 61 his particular employment, an omission of the skill which belongs to his situation or profession is imputable to him as a fraud upon his em- ployer.* But where his employment does not necessarily imply skill in the business he has undertaken, and he is to have no compensation for what he does, he will not be liable to an action if he act in good faith, and to the best of his ability.' As to third parties. Generally, when a per- son having full authority is known to act merely for another, his acts and contracts will be deemed those of the principal only, and the agent will incur no personal responsibility.* But when an agent does an act without authority, or exceeds his authority, and the want of authority is unknown to the other party, the agent will be personally responsible to the person with whom he deals.* If the agent, having original authority, contract in the name of his principal, and it happens that at the time of the contract, unknown to both parties, his authority was revoked by the death of the principal, the agent will not be person- ally responsible. 1 An agent will be liable on a contract made with him when he expressly, or by implication, incurs a personal responsibility ; i as, if he make an express warranty of title, and the like ; or if, though known to act as agent, he give or accept a draft in his own name ; k and public as well as private agents may, by a personal en- gagement, render themselves personally liable. 1 In general, although a person contract as agent, yet if there be no other responsible principal to whom resort can be had, he will be person- ally liable ; as, if a man sign a note as " guar- dian of A. B.," an infant, in that case neither the infant nor his property will be liable, and the agent alone will be responsible." 1 The case of an agent of government, acting in that capacity for the public, is an exception to this rule, even though the terms of the contract be such as might, in a case of a private nature, involve him in a personal obligation ; it not being presumed that a public agent meant to bind himself individually." Masters of ships, though known to contract for the owners of the ships and not for themselves, are liable for the contracts they make for repairs, unless they negative their responsibility by the express terms of the contract. As a general rule, the agent of a person resident in a foreign country e-Paley Ag. (Lloyd's Ed.) 7, note 4. f-i Liverm. Ag. 336, 339. 34- S-2 Liverm. Ag. 245 ; Story Ag. ? 261 ; Paley Ag. 368, 369 ; 2 Kent. Comm. 629, 630 ; 15 East. 62 ; 3 P. Wms. 277 ; 6 Binn. 324 ; 13 Johns. 58, 77 ; 15 Id. i. h-Story Ag. j) 264 ; 2 Liverm. Ag. 255, 256 ; 2 Taunt. 385; 7 Wend. 315; 8 Mass. 178. i-Story Ag. ? 265 ; (a) 10 M. & W. i. j-Story Ag. % 156-159, 269. ls-s Taunt. 74; i Mass. 27, 54; 2 Duer 260 : 2 Conn. 453; 5 Whart. 288. 1-Paley Ag. 381. m-Paley Ag. 374; Story Ag. 280; 2 Brod. & B. 460; 5 Mass. 299; 6 Id. 58; 8 Cow. 31. n-Paley Ag. 376, 377; and see 5 B. & Aid. 34 ; i Brown Ch. 101 ; 6 Dowl. & R. 122 ; 7 Bingh. ito. o-Paley Ag. 388; 15 Johns. 298; 16 Id. 89; n Mass. 34. p-2 Liverm. Ag. 249; Story Ag. ? 268; Paley Ag. 248, 373, 382 ; 15 East. fl8 ; 9 Barn. & C. 78 ; 3 Hill (N. Y.) 72. q-n Ad. & E. 589, 594, 595. r-n Wend. 477; 3 P. Wms. 279; 4 Q. B. 235, n; Story is personally liable upon all contracts made by him for his employer, whether he describe himself in the contract as agent or not, this being the usage of trade, and it being pre- sumed that the credit was given to him and not to his principal.? But this presumption may be rebutted by proof of a contrary agree- ment.i An agent is not personally liable, unless he transcends his agency, or departs from its pro- visions ; r or unless he expressly alleges his own liability, 8 in which case he is liable, although he describes himself as agent ; ' or unless he conceals his character as agent ; u or unless he so conducts as to render the principal inacces- sible or irresponsible ; T or unless he acts in bad faith. If a sealed instrument is executed by an agent, and it contain covenants which ex- pressly purport to be those of the principal, and the agent in executing it calls himself an agent, he is not liable on those covenants ; w but if they are not expressly the principal's cove- nants, the agent is liable on them. 1 If a per- son dealing with an agent knows his agency, his rights and obligations will be the same as if the agent disclosed it/ unless the agent pur- posely represents himself as a principal and assumes the responsibility of one. And if the agent's act be open to two constructions, one of which binds him, and the other binds the principal, the law prefers the latter.* If a party dealing with an agent as agent, and knowing that the principal is bound, takes the agent's note, the principal is discharged.' If one describes himself as agent for some un- named principal, he is of course liable if proved to be the real principal . b And one acting as agent is liable personally, if it be shown that he acts without authority." An agent is not responsible to third parties for mere neglect or omission in discharge of his duty, for they must look to the principal. 4 An agent who exceeds his authority renders himself liable to the whole extent of the contract, although a part of it was within his authority. 8 An agent is personally responsible where money has been paid to him for the use of his principal under such circumstances that the parly paying it becomes entitled to recall it. In such cases, as long as the money has not been paid over by the agent, nor his situation altered as by giving his principal fresh credit upon the faith of it, it may be recovered from Agency, 265 : 4 Q. B. 239. 8-2 M. & W. 440: 8 Id 834; 6 A. & E. 486; 5 East. 148; 12 E. L. & E. 180; 29 Id. 103 ; 30 Me. 299 ; i Wheat. 56 ; 4 Mass. 595 ; 6 Id. 58; 13 Johns. 307; 7 Cowen, 453; 4 Herring, 451 : 2 Carter (Ind.1 327; 2 Hill (S. C.) 294. t-io Cush. 324; 29 E. L. & E. 103; S. C. 4, E. & B. 591 ; 32 E. L. & E. 127 ; S. C. 5, E. & B. 125 ; 30 Conn. 122. u- 4 C. B. 637; 3 A. & E. 132; 9 B. & C. 78; 2 Esp. 567; 2 Met. 319; 5 Cush. 210; 3 Hill (N. Y.) 72. v-3 T. R. 761 : 9 N. H. 263; 8 Texas, 98; 2 Md. 63. w-n S. & R. 126. x-4 Bing. 269 ; 7 Cowen, 453 ; 10 Wend. 87. y-2 Gillman, 371. 15-25 Me. 13. a-io Met. 190; 8 Id. 411 : 6 Greenl. 220. fo-5 E. L. & E. 391 ; 19 Id 526. 0-3 JoJKns. Cas. 70; 20 Mo. 284; 2 C. R. 53 ~( 373 ; 2 Liverm. Ag. ;>C 1 Liens'." w.-\ Liverm. Ag. 215 a-Story Ag. jig 393, 394; i Liverm. 215-221 : 3 Pick. 322 ; 16 Id. 381 ; 5 Vt. 500. b-Paley Ag. (Dunlap's Ed.) 861, note. c-Russell Fact. & B. 241, 244; Paley Ag. 361, note; Story Ag. I 393. d-i2 Wend. 413; s'M. & S. 833. AGENCY. to sue the party with whom he has contracted for any damages which he may have sustained by reason of a breach of contract by the latter.* 3. The right of the agent to sue in his own name exists when, by the usage of trade, or the general course of business, he is authorized to act as owner, or as a principal contracting party, although his character as agent is known.* 4. Where the agent has made a contract in the subject-matter of which he has a special interest or property, he may enforce his con- tract by action, whether he held himself out at the time to be acting in his own behalf or not : J for example, an auctioneer who sells the goods of another may maintain an action for the price, although the sale be on the premises of the owner of the goods, because the auctioneer has a possession coupled with an interest. 1 But this right of an agent to bring an action in his own name is subordinate to the rights of the principal, who may, unless in particular cases where the agent has a lien or some other vested right, bring a suit himself, and suspend or extinguish the right of the agent.' An agent may maintain an action against third persons for injuries affecting the posses- sion of his principal's property ; and when he has been induced by the fraud of a third per- son to sell or buy goods for his principal, and he has sustained a personal loss, he may main- tain an action against such third person for such wrongful act, deceit, or fraud. 1 * But his remedy for mere torts is confined to cases like the foregoing, where his right of possession is injuriously invaded, or where he incurs a per- sonal responsibility, or loss, or damage in consequence of the tort. c SIGNATURE BY AN AGENT. If A. signs " A. for B.," this is the signature of A., and he is the contracting party, although he makes the contract at the instance and for the benefit of B. But if he signs " B. by A.," then it is the contract of B., made by him through his instru- ment A. In the first case A. is the principal ; in the second, B. is the principal, and A. his agent. But with whatever technical inaccuracy the signature is made, it may be determined in each instance from the facts and the evidence, that a party is an agent or a principal, in ac- cordance with the intention of the parties to the contract, if the words are sufficient to bear the construction. 4 But it is still requisite that the name of the principal appear as such in the signature of a deed.' Parol evidence may always be admitted to charge an unnamed w-Russell Fact. & B. 243, 244 ; 2 B. & Aid. 962. x- Story Ag. 393. y-i Liverm. Ag. 215-219 ; Story Ag. 393 ; 27 Ala. (N. S.) 215. z-2 Esp. 493 ; i H. Bl. 81, 84, 85. a-i Liverm. Ag. 221 ; Story Ag. \ 403 ; 3 Hill (N. Y.) 72, 73 ; 6 S. & R. 27 ; 4 Campb. 194. fo-Paley Ag. 363 ; Story Ag. $ 414, 415 ; 9 B. & C. 208 ; 3 Campb. 320; i H. Bl.Si ; i B. & Aid. 50. C-Story Ag. ^329, 331 ; i C. & P. 384; 4 Id. 289: 7 Bingh. 99; 16 Ohio, 412. d-S Wheat. 326, 337; n Mass. 197; 6 Cush. 54; 7 Id. 217; ? East. 154 ; sBlackf. 55 ; 6 B. Mon. 612 ; 12 Ired. L. 95 ; i Busb. L. 422 ; 8 Texas, 98 ; 12 Id. 75 : 21 Conn. 627 ; 33 Me. 106 ; 3 Flor. 262 ; 9 Barb. 528 ; 4 Comst. 208 ; 32 E. L. & E. 127; i Duer. 89. e-Bac. Abr. Leases \. 14 ; 5 Pet. 319,350; Q M.&W. 79. f-i2 Q. B. 310; 8 M. & W. 834; ii A. & E. 594; 9 M. & W. 79; ii Mass. 97; Id. principal ; but not to discharge the actual signer/ SUB-AGENTS. An agent can do for his principal only that which his principal author- izes, and if the principal appoint an agent to act for him as his representative in any particu- lar business, this agent has not thereby a right to make another person the representative of his principal. A mere agent cannot generally appoint a sub-agent, so as to render the latter responsible to the principal,* but may when such is the usage of trade, or is understood by the parties to be the mode in which the particu- lar business may be done. h The principal may, if he chooses, give this very power to his agent. 1 A substitute of an agent who has no power to employ him, cannot be held as the agent of the original principal ; but is only the agent of the agent who employs him,J and who is accordingly his principal, and the person so employed is bound only to his immediate em- ployer, and can look only to him for compen- sation. 11 But a substitute, appointed by an agent who has this power of substitution, be- comes the agent of the original principal, and may bind him by his acts, and is responsible to him as his agent, and may look to him for compensation. If the agent has either express or implied authority to appoint a sub-agent he will not, ordinarily, be responsible for the acts or omissions of the substitute, 1 and this is especially true of public officers ; but the sub- agent will himself be directly responsible to the principal for his own negligence or mis- conduct. The agent of an agent is generally accountable only to his own principal, and not to the principal of the party for whom he acts ; that is, only his immediate employer can call him to account." Where sub-agents are employed without the knowledge or consent of the principal, their remedy is against their immediate employer only, with regard to whom they will have the same rights, obligations, and duties as if the agent were the sole principal. But where sub- agents are ordinarily or necessarily employed in the business of the agency, the sub-agent can maintain his claim for compensation both against the principal and the immediate em- ployers, unless the agency be avowed, and ex- clusive credit be given to the principal, in which case his remedy will be limited to the principal. A sub-agent will be clothed with a lien against the principal for services performed and 27; 16 Pick. 350; 9 N. H. 263; 7 Wend. 68; 10 Id. 87; 6 Whart. 79 ; 10 B. Mon. 347 ; Paine C. C. 252 ; 8 Met. 348 ; i Cal. 481 ; 10 B. & C. 671 ; 2 Cranch. 419 ; 7 Cush. 371 ; 5 Sanf. 101. |f-Story Ag. g 13 : 9 Co. 75 ; 3 Mer. 237; 2 Maule & S. 298, 301 ; i Y. & J. Exch. 387; 4 Mass. 597 ; 12 Id. 241 ; i Hill, 501 : 13 B. Mon. 400 ; 12 N. H. 226: 2 Story C. C. 411. h-9 Yes. Ch. 234 ; t Maule & S. 484 ; 2 Id. 301 ; 6 S. & R. 386 ; i Ala. (N. S.)249; 3 Johns. 167. i-Bunb. 166; i Vent. 338-339; i Freem. 476. |-6 Q. 6.930; ii Id. 248. k-33 Me. 341. 1-2 Bos. & P. 438; 2 Maule & S. 301; i Wash. C. C. 479 ; 8 Cow. 198. m-Story Ag. % 201, 217 *; > Gall. C. C. 565 ; 8 Cow. 198. n-3 B. & Aid. 354 ; 5 Taunt. 447; Mad. & G. 360. o-i Lirerm. Ag. 64-66; Story Ag. $ 386, 387 ; Paley Ag. 49 ; 6 Taunt. 147. AGENCY. disbursements made by him on account of the sub-agency, whenever a privity exists between them." He will acquire a lien against the principal if the latter ratifies his acts, or seeks to avail himself of the proceeds of the sub- agency, though employed by the agent without the knowledge or consent of the principal. He may avail himself of his general lien against the principal by way of substitution to the rights of his immediate employer, to the extent of the lien of the latter.? And there are cases in which a sub-agent, who has no knowledge or reason to believe that his immediate em- ployer is acting as an agent for another, will have a lien on the property for his general bal.ince.i Arbitrators are private extraordinary judges, to whose decision matters in controversy are referred by consent of the parties. REFEREE is used as a synonym of arbitrator, but is in its origin of broader signification, and less accur- ate than arbitrator. Appointment. Usually a single arbitrator is agreed upon, or the parties each appoint one, with a stipulation that, if they do not agree, another person, called an UMPIRE, named or to be selected by the arbitrators, shall be called in, to whom he matter is to be referred. r The jurisdiction of the umpire and arbitrators can- not be concurrent ; if the arbitrators make an award it is binding; if not, the award of the umpire is binding. 8 If the umpire sign the award of the arbitrators, it is still their award, and vice versa. 1 Arbitrators may appoint an umpire after their term of service has expired, if the time has not gone within which the um- pire was to make his award. Subsequent dis- sension of the parties without just cause will have no effect upon the appointment; but they should have notice. T If an umpire refuse to act, another may be appointed as often as the thing shall happen.' In general, any objection to the appointment of an arbitrator or umpire will be waived by attending him.* Any per- n-2 Liverm. Ag. 87-98; Paley Ag. 148, 149; Story Ag. g 388 ; 2 Campb. 218, 597 ; 2 East. 523 ; 6 Wend. J75. O-Story Ag. g 389 ; 2 Campb. 218, 597, 598 ; 4 Id. 348, 353- p-Story Ag. g 389 ; i East. 335 ; 2 Id. 523, 529; 7 Id. 7; 6 Taunt. 147. q-2 Liverm. Ag. 87-92; Paley Ag. 148, 149; Story Ag. g 390; 4 Campb. 60, 349 : 353- r-Caldw. Arb. 99 ; 2 Vern. 485 ; 16 East. 51 ; 9 Barn. & C. 624 ; 3 Barn. & Aid. 248 ; 5 Barn. & Ad. 488; 7 Scott, 841 ; Q Ad. & E. 699 ; 6 Harr. & J. 43 : I 7 Johns. 405 ; i Barb. 325 ; 2 M'Cord, 279 ; 4 Rand. 275; 15 Vt. 548; 2 Bibb. 88; 4 Dall. 471 ; o Ind. 150. S-T. Jones, 167. t-6 Harr. &J. 403. u-2 Johns. 57. V-n East. 367; 12 Met. (Mass.) 293; i Harr. & J. 362, n. w-See 2 Saund. 1133, a. note, x-2 Eng. L. & Eq. 284; 9 Ad. E. 679; 8 East. 344; i Jac. & W. 511 ; i R. & M. 17: 3 Ind. 277; 9 Penn. St. 254, 487; ip B. Mon. 536. y-Watson Abr. 71 ; Russel Abr. 107 : Viner. Abr. Arb. A. 2 ; 8 Dowl. 879; i Pet. 288 ; 7 W. & S. 142; 26 Miss. 127, contra Com. Dig. Abatement B. C. West. Symb. Corner, p. 164, gg 23, 26; Brooke Abr. 10 Ad. & E. 775; 10 Q. B. 7. z-q Bingh. 672; 2 Vem. 251 ; i Dowl. fin ; 5 Id. 247; 4 Mod. 226; i Jac. & W. 511; i Cai. 147; i Bibb. 148; Hardin. 318; 14 Conn. *6 : 26 Miss. 127 ; 27 Me. asi ; 2 E. D. Smith, 32. a-2 Atk. Ch. 401 ; Cro. Eliz. 726; o Dowl. Parl. Cas. 1044 ; 6 C. B. 258 ; 4 Dall. 71 ; 7 S. & R. 228 : i Wash. C. C. 448. b-9 Mo. 30. c-2i Ga. i. d-Story Eq. Jur. g 1457; Kyd. Aw. ; 2 Ed. 100. -3 Atk. 644 ; 7 S. & R. 448 ; 5 Md. 253 ; 19 Mo. 373. f-8 East. 12 ; 4 Esp. 47 ; * Mann. & G. 847, 870; 3 Q. B. 466, 928; but see i B. son selected may be an arbitrator, notwith- standing natural incapacity, or legal disability, as infancy, coverture, or lunacy ? or disqualifi- cation on account of interest, provided it be known to the parties at the time of making the submission. 1 Duties and powers. Arbitrators cannot dele- gate their authority ; it is a personal trust.' The power ceases with the publication of the award ; b and death after publication and be- fore delivery does not vitiate it. c They cannot be compelled to make an award, 4 or disclose the grounds of their judgment.* An arbitrator may retain the award till paid for his services, but cannot maintain an action for them without a promise,' which may be implied from circum- stances. Proceedings. Arbitrators proceed on the reference as judges, not as agents of the parties appointing them.* They should give notice of the time and place of proceeding to the parties interested. 11 They should all conduct the in- vestigation together, and should sign the award in each other's presence;'- but a majority is sufficient^ In investigating matters in dispute, they are allowed the greatest latitude. k They are Judges both of law and fact, and are not bound by the rules of practice adopted by courts. 1 They may decide in justice and honesty, and need not follow the law ; the award will be set aside only when it appears that they meant to be governed by the law but have mistaken it. m Revocation of powers of arbitrators may oc- cur at the pleasure of either party at any time before final award." It is not competent for the parlies to deprive themselves of this power by any form of contract. But when the sub- mission releases the original cause of action, and the adversary revokes, the party so releas- ing may recover the amount so released by way of damages caused by the revocation. P Where the submission is made a rule of court it be- comes practically irrevocable, since such an act & P. 93 ; Contra i Denio, 188 ; 29 N. H. 48. g-i Ves. Ch. 226; 9 Id. 69. h-3 Atk. 529; 8 Md. 208; 6 Hair. & J- 403 ; 3 Gill, 31 ; 7 Id. 488 ; 24 Miss. 346 ; 23 Wend 628; 6 Cow. 103; 12 Met. (Mass.) 293; i Dall. 81 , 4 Id. 432 ; i Conn. 498 ; 17 Id. 309 ; 2 N. H. 97 ; 6 Vt. 666 ; 3 Rand. 2; Hardin, 46; 32 Me. 455, 513. i-4 Me. 468. l-i Wash. C. C. 448; ii Johns. 402; 3 R. I. 192; 30 Penn. St. 384; 2 Dutch. 175; 9 Ind. 150; 7 Id. 669; 14 B. Mon. 292 ; 21 Ga. i. fc-i3 East. 251 ; 9 Bingh. 679 ; i Bos. & P. 91 ; 7 Beav. Rolls, 455 ; 14 M. & W. 264 ; 5 C. B. 211, 581 ; 6 Cow. 103 ; i Hill, 319; i Sandf. 681 ; i Dall. 161 ; 6_Pick. 148 ; 10 Vt. 79 ; 2 Bay. 370 ; i Bail, sh. 193 ; 4 Cush. in ; 7 - 1-3 Atk. Ch. U.533: ast 358; 9 Bingh. 681 '; 2 Barn. & Aid. 692 ; 3 Id. 239 ; 4 Ad. & E. 347; 7 Id. 601; i Dowl. & L. 465; i Dowl. & R. 366; 17 How. 344; 2 Gall. C. C. 61; 7 Met. (Mass.) 316, 486 ; 36 Me. 19, 108 ; 2 Johns. Ch. 276, 368^ 3 Duer, ". D. " 46 ; but see i Halst. 386 ; i Was Hill, 463 ; 3 Johns. Cas. 224 ; i Binn. 458. 1-3 Atk, 486; i Ves. Ch. 369; i Price, 81 ; n Id. 57; 13 Id. i Swanst. 28; i Taunt. 52, n. ; 6 Id. 255 ; 13 East 69; .'? nth, Smith, 85, 265; 5 Md. 353; 19 Penn. St. 431; 21 Vt. 99, 250; 25 Conn. 66; 16 111. 34, 99; ia Gratt. 554; 7 Ind. 49; 2 Cal. 64, 122; 23 Miss. 272; thus, the witnesses were not sworn ; Hill & D. no; 2! Vt. 776. m-9 Ves. 364; 14 Id. 271; 3 East. 18; 13 Id. 351 ; 4 Tyr. 997 ; 2 C. B. 705 ; 3 Id. 705 ; 2 Gal. C. C. 61 ; i Dall. 487 ; 6 Pick. 148 ; 6 Met. (Ma: 486 ; 6 Vt. 529 ; 21 Id see 19 Mo. 373. 11-20 205. p-13 Vt. 97. c. 148; 6 Met. (Mass.) 131 ; 7 la. 150; 4 N. H. 357; i Hall, S9 8 : Vt. 198. O-8 Co. *o ; 16 Johnt. AGENCY. would be regarded a contempt of court and punishable by attachment."! This is the only mode of making a submission irrevocable/ A submission by rule of court is made irrevocable by the express provisions of the statutes of most of the States, and the referee is required, after due notice, to hear the case ex parte where either party fails to appear. See GENERAL STATUTES. I The form of the revocation is not important if it be in conformity with the submission; or if, when it is not, it be acquiesced in by the other party. 1 " The revocation should, in gen- ral, be of as high a grade of contract as the submission." Where the submission is in writ- ing the revocation ought to be in writing;* and however the form of revocation is expressed it must be distinct ar.d intelligible." A party may revoke the submission by any act which renders it impracticable for the arbi- trators to proceed. T Where the arbitrators decline to act it will operate as a revocation of the submission." Bankruptcy of a party does not operate to revoke a submission to arbitration, 1 though it may justify the other in revoking.? The death of either party, or of an arbitrator, or of one of them, will operate as a revocation of the submission. It is competent to make provision in the submission for the completion of the award notwithstanding the death of one of the parties, by proceedings in the name of the personal representative.* Where the sub- mission is by rule of court, and the cause of action survives, this provision is not necessary, it may be revived and prosecuted in the name of the personal representative.* The power of the arbitrator is determined and destroyed by the occurrence of any fact which incapacitates the party from proceeding with the hearing. Insanity in either party, or in an arbitrator, will determine and destroy the authority to proceed. The marriage of a single woman is a revoca- tion of the arbitrators' power. b So, also, if she is joined with another in the submission her marriage is a revocation as to both. The exceptions to this rule are purely statutory. The bringing of a suit upon the same cause of action embraced in the submission, at any time before the award, is an implied revocation. 4 q-i2 Mass. 47; i Com. 498; 3 Halst. 116; 4 Me. .459 ; i Bingh. 42 ; 5 Penn. St. 497 ; 3 Ired. 333 ; see also 19 Ohio St. 245 ; 5 Paige Ch. 575 ; 1 1 Id. 529 r-7 Vt. 237. s-Caldw. Arb. 79 ; 8 Co. 82 ; Brownl. 62 ; 8 Johns I25 j ?"' 1 Vt " 9I : see ^ Vt 2 37, 2 4o; 15 N. H. 468 ; and 8 Ired. 74; 26 Me. 251. n-i Cow. 325. v-i Salk. 73 ; 7 Mod. 8 ; Story Ag. 474. w-Caldw. Arb. 90 i Marsh. 366; 17 Ves. Ch. 241; 4 Monr. 3; 3 Swanst. Ch. 90; i B. & C. 66. x-Caldw. Arb. 89. y- 9 B. & C. 659; but see 2 Chitty Bailm. 43; i C. B. 131. z-3 ? & c '\V I ?,V ngh - 20 : 4 Id I43> 43S : 6 Bin s h - N - C. 158 ; 8 M. & W. 873. a-is Mass. 79 ; 3 Halst. 116 : 3 Gill, 190 ; 2 Gill & J. 475. b-2 Keblef 865 ; 575. -W. Jones, 338; Rolle Abr. Authority Dana, 107 ; Caldw. Arb. (Smith's Ed. 1860^ 8< 865; ii Vt. >. d-6 notes. e-Caldw. Arb 77/78; i Brownl. 62 Ralle Abr! Authority (H.); 12 Wend. 578; but see Russel Arb 147; Chitty Bailm. 542. f-Caldw. Arb. 80 ; 5 B. & Aid. 507; Co. 80. g-i Rolle Abr. Authority (I. 4.) ; n Vt. When one party to a submission consists of several persons one cannot revoke without the concurrence of the others,' though his death would operate as a revocation on the part of the party of which he was one, but if the cause of action survived, his personal representative might be substituted in his stead. Where the revocation is by the express act of a party it will be effectual when notice reaches the arbitrator.' But in case of death, insanity, or marriage, either of these events of themselves terminates the power of the arbitra- tor at once, and all acts done by him thereafter are absolutely void.* Submission is the agreement, oral or written, by which parties agree to submit their differences to the decision of a referee or arbitrators. It is sometimes termed a reference. 11 Any matter may be determined by arbitra- tion, which the parties may adjust by agree- ment, or which may be the subject of a suit at law. Crimes, however, and, perhaps, actions on penal statutes by common informers, can- not be made the subject of arbitration and com- position by arbitration. 1 Disputes respecting rent, or tithes, charges of slander, breaches of contract, matters of account, trespass to person or property, etc., etc., may be submitted to arbitration.^ Parties may by parol submit any matters in controversy between them to arbi- tration ; and this is the common law of the land. k And, notwithstanding the statutes, parties may submit to arbitration as at common law. 1 When a statute provides a new, and does not abrogate the old mode, and parties may adopt either mode at their own election, but they cannot pursue both at the same time. 1 Any one capable of making a disposition of his property, or release of his right, or capable of suing or being sued, may make a binding submission to arbitration ; but one under civil or natural incapacity cannot be bound by his submission. In general, in cases of incapacity of the real owner of the property, as well as in many cases of agency, the person who has the legal control of the property may make the submission ; including a husband for his wife ; B a parent or guardian for an infant ; but not a guardian ad litem /Pa trustee for his cestui que trust ; ' an attorney for his client ; * an 525 ; 5 East. 266. h-Enclyc. Am. Arb. Kyd. Arb. n ; Caldw. Arb. 16 ; 17 Ves. Ch. 419; 6 Bingh. 506; 3 M. & W. 816; 6 Watts, 359; 16 Vt. 663; 4 NY. 157; a Barb. Ch. 430. i-Caldw. Arb. 12; Com. Dig. Arb. (I). 3.4); 5 Wend, in; 2 Cow. 638; 3 Caines, 320; 9 Johns. 38 ; 13 S. & R. 319 : 2 Rawle, 341 ; 7 Com. 345 ; 4 N. H. 177; 16 Miss. 298; 16 Vt. 450; 10 Gill & J. 192; 5 Munf. 10; 4 Dallas, 120. j-7 Kas. 349. k-Id. p. 350. 1-3 Wis. 249 ; i Chand. 219. m-Watson Arb. 65 ; Russell Arb. 20 ; 2 P. Wms. 45-50; 9 Ves. Ch. 350; i Dowl. & L. 145; 8 Me. 316; n Id. 326; 2 N. H.484; 8 Vt. 472; 16 Mass. 396; 5 Conn. 367; i Barb. 584; 14 Johns. 302; 5 Wend. 20; 5 Hill, 419; 2 Rob. 761; 6 Munf. 458; Paine C. C. 646; i Wheat. 304; 5 How. 83. n-Str. 351; 5 Ves. 846. o-Latch. 207; March, xxi, 141; Freem. Ch. 62, 139; i Wils. 28: n Me. 326; 13 Conn. 376; 3 Caines, 253. |-9 Humph. (Tenn.) 129. q-3 Esp. 101 ; 2 Chitt. Bail. 40; i Lutw. 571. r-i Wils. 28, 58 ; i Salk. 70 ; i L. Raym. 246 ; 12 Mod. 120. ; Dy. 217, b; 12 Ala. 252; 9 Penn. St. 101 ; 19 Id. 418; 23 Id 393 ; i Park. Cr. Cas. 387; 2 Hill, 271 ; 4 Monr. 375; C ranch. 476; but se 6 Weekly R. 10. 66 AGENCY. agent duly authorized for his principal ; * an executor or administrator at his own peril, but not thereby necessarily admitting assets : u as- signees under bankruptcy and insolvency laws under statutory restrictions, the right being limited in all rpses to that which the person acting can control and legally dispose of, T kut not including a partner for a partnership.* The submission which defines and limits, as well as confers and imposes the duty of the arbitrator, must be followed by him in his con- duct of the award : but a fair and liberal con- struction is allowed in its interpretation. * If general, it submits both law and fact.' If limited, the arbitrator cannot exceed his authority.* The award is the judgment or decision of arbitrators, or referees, or umpires, on the matter submitted to them. The writing containing such judgment.* A court has no power to alter or amend an award. b Enforcement. An award may be en- forced by an action at law, which is the only remedy for disobedience when the submission is not made a rule of court, and no statute pro- vides a special mode of enforcement. Form. The award should, in general, follow the terms of the submission, which fre- quently provides the time and manner of making and publishing the award. It may be oral or written, or by deed. d It should be signed by all the arbitrators in the presence of each other. An award will be sustained by a liberal construction, that it may be supported sooner than be lost. Effect. An award is a final and con- clusive judgment between the parties on all the t-4 Taunt. 378, 386 ; 8 Barn. & C. 16 ; 5 Id. 141 ; 8 Vt. 472 ; ii Mass. 479 ; 5 Green (N. J.) 38 ; 29 N. H. 405 ; 8 N. Y. 160. n-2 Str. 1144; 5 T. R. 6; 7 Id. 453; 5 Mass. 15; 20 Pick. 584; 6 Leigh. 62; 5 Monr. 240; 6 Conn. 621 ; see 5 Bing. 200 ; i Barb. 419 ; 3 Harr. N. J. 442. \-6 Mass. 78 ; 6 Munf. 453 ; 4 Monr. 240 ; 21 Miss. J33- W-3 Bing. 101 ; Holt, 143; i Cr. M. & R. 681 ; i Pet. 221 ; 19 Johns. 137 ; 2 N. H. ; 5 Gill & J. 412 ; T2 S. & R. 43; Coll. Part. {! 439, 470; 3 Kent Comm. 49. X-i Wms. Saund. ; 95 Cro. Car. 226; ii Ark. 477; 3 Penn. St. 114; 13 Johns. 187. y-7 Ind. 49. z-u Cush. 37. a-Cowel, Jenk. Cent. Cas. 137; Billings Aw. 119 Watson Arb. 174; Russel Arb. 234; 3 Bouv. Inst. n. (402, et sey. b-i Dutch. 130 ; 5 Cal. 179 ; 12 N. Y. 9 ; 41 Me. 355. C-6 Ves. 815; 17 Id. 232; 19 Id. 431; i Swanst. 40; 2 Chitt. 316; 5 East. 266; 5 Barn. & Aid. 507 : 4 Barn. & C. 103 ; i Dowl. & R. 106 ; 3 C. B. 475- d-3 Bulstr. 311; 20 Vt. 189. e-2 N. H. 126; i Pick. 534; 4 Wis. 181; 8 Md. 208; 8 Ind. 310; 17 111. 477; 29 Penn. St. 251 ; Reed. Aw. 170. f-3 Bl. Comm. 16 ; i Freem. Ch. 410 ; 4 Ohio, 310 ; 5 Cow. 383 ; S. & R. 166; i Cam. & N. 93. if -37 Me. 72; 15 I ; 5 Ind. 220; i Ala. Cranch. 171 ; h-2 L. Raym. 115:3 East. 15:6 Pick. 148 : 4 Dall. 120 ; 16 Vt. 450, 592; 15 Johns. 197; 5 Wend. 268: 2 Cai. 320; 4 Rawle, 411, 430; 7 Watts. 311 ; u Conn. 240; 18 Me. 251 ; 28 Ala. (N. S.) 475. 1- Watson Arb. 256; 12 N. Y. 9; 41 Me. 355. J-23 Barb. 187; 28 Vt. 81, 776; contra Q Cush. 580 k-Lutw. 530; Str. 903 ; i Ch. Cas. 186; Rep. temp. Finch. 141 ; 24 Eng. L. & Eq. 346; 8 Barb. 361 ; 5 Barn. & Ad. 295 ; 13 Johns. 27. 268 ; i> Id. 133 ; 17 Vt. 9; 3 N. H. 82; 13 Mass. 396; ii Id. 447; 22 Pick. 144; ii Cush. 37; 18 Me. 251; 40 Id. 194; 25 Conn. 71 ; 3 Harring. (Del.) 22; i Binn. 109; 5 Penn. St. 274; i3 Gill & J. 156, 456; Litt. Sel. Cas. 83; 13 Miss. 172": 25 Ala. 351 ; 7 Cranch. 599; see 7 Sim. i ; 2 Q. B. 256; ii Johns. 61 ; i Call. 500; 7 Penn. St. 134. l-i Burr. 275 ; 5 Ad. & E. 147 ; 2 Sim. & S. 130 ; 2 Vern. 514; 2 Bulstr. 260; 38. & R. 340; i Id. 395; 9 Johns. 43; 13 Id. 187; 22 Wend. 125; 23 Barb. 187; 3 Sandf. Wend. 99; 27 Vt. 241; 16 III. 34; 5 278; 6 Litt 264; 2 Coxe, matters referred by the submission. It trans- fers property as much as the verdict of a. jury, and will prevent the operation of the statute of limitations/ A verbal or written award fol- lowing a verbal or written submission will have the same effect as an agreement of the same form directly between the parties.s The right of real property cannot thus pass by mere award ; but no doubt an arbitrator may award a conveyance or release of land, and require deeds, and it will be a breach of the agreement and arbitration bond to refuse compliance ; and courts will sometimes enforce this specifically.* Arbitrament and award may be pleaded to an action concerning the same subject-matter, and will bar the action. 1 To an action on the award nothing can be pleaded against the award ; not even fraud.J To be conclusive, the award should be con- sonant with, and follow the submission, and affect only the parties to the submission ; other- wise, it is an assumption of power, and not binding. 11 It must be final and certain, 1 con- clusively adjudicating all the matters sub- mitted, and stating the decision in such lan- guage as to leave no doubt of the arbitrator's intention, or the nature and extent of the duties imposed by it on the parties." It must be possible to be performed, and must not direct anything to be done which is contrary to law. It must be without palpable or ap- parent mistake.P An award may be in part good, and in part void ; in which case it will be enforced so far as valid, if the good part is separable from the bad.' 405 ; 7 Met. (Mass.) 316 ; 4 Cush. 317, 396 ; i Gray, 418 ; 13 Vt. 53 ; 40 Me. 194; 2 Green. N. J. 333 ; 2 Halst. 90; i Dutch. 281 ; 2 Id. 175; 3 Harr. & J. 383; 2 Harr. & G. 67 ; 6 Md. 135 ; 4 Md. Ch. 199 ; i Gilm. (Va. ) 92 ; 2 Patt. & H. 442; 3 Ohio, 266; 5 Blackf. 128; 4 Id. 480 ; i Ired. 466; Busb. 173; 3 Cal. 431 ; i Ark. 206; 4 111. 428 ; 2 Fla. 157; 13 Miss. 712 : Charlat. 289 ; 2 M'Cord, 279; 5 Wheat. 394; n Id. 446; 12 Id. 337; and see 4 Conn. 50 : 6 Johns. 39 ; 6 Mass. 46. m-6 Md. 135 ; i McMull. 305; 2 Cal. 209. n-2 Cal. 299, and cases above; an award reserving the determination of future disputes, 6 Md. 135 ; or directing a bond without naming a penalty, 5 Co. 77; Roll. Abr Arb. 2,4; or that one shall give security for the performance of some act or payment of money, without specify ing a kind of security, are invalid, Vin. Abr. Arb. 212; Bac. Abr. Arb. E. n, and cases above. O-i Ch. Cas. 87: 5 Taunt. 454 ; 12 Mod. 585; 2 Barn. & Aid. 528; Kirb. 253; i Dall. 364; 4 Id. 298 ; 4 Gill & J. 298 ; it will be void if it direct a party to pay a sum of money at a day past, or direct him to commit a trespass, felony, or an act which would subject him to an action ; 2 Chitt. 594 ; i M. & W. 572 ; or if it be of things nugatory and offering no advantage to either of the parties, 6 J. B. Moore, 713. p-2 Gall. C. C. 61 ; 3 B. & P. 371 : i Dall. 487: 6 Met. (Mass) 131 ; for if the arbitrator acknowledges that he made* mistake, or if an error (in computation for instance) it apparent on the face of the award, it will not be good, 4 Zab. 647; 2 Stockt. 45; 2 Dutch. 130; 32 N. 6.280; ii Cush. 549; 18 Barb. 344; 2 Johns. Ch. 309; 27 Vt. 241 ; 8 Md. 208 ; 4 Call. 345 ; 5 Id. 430; for although an arbitrator may decide contrary to law, yet if the award attempts to follow the law, but fails to do so from the mistake of the arbitrator, it will be void, 3 Md. 353 ; 15 111. 421; 26 Vt. 416, 630; 4 N. H. 647; 17 :How. 344. <|-io Mod. 204; 12 Id. 587; Cro. Jac. 664; 2 Leon, 304; 3 Lev. 413; Godb. 164; 8 Taunt. 697; i Wend. 326; 5 Cow. 197; 13 Johns. 264; 2 Cai. 235: i Me. 300; ii Cush. 37 ; 6 Green (N. J.) 247 ; i Dutch. 381 ; i Rand. 449; i Hen. & M. 67; Hardin, 318; 5 Dana. 492 ; 26 Vt. 345; 2 Swanst. 213; 2 Cal. 74; 4 Ind. 248; 6 Harr. & J. 10 ; 5 Wheat. 394. AGENCY. 67 Setting aside. An award will not be disturbed except for very cogent reasons. It will be set aside for misconduct, corruption, or irregularity of the arbitrator, which has, or may have, injured one of the parties. r For error in fact, or in attempting to follow the law, appar- ent on the face of the award ; for uncertainty or inconsistency ; for an exceeding his authority by the arbitrator ; " when it is not final and con- clusive, without reserve; when a party or wit- ness has been at fault, or has made a mistake ; or when the arbitrator acknowledges that he has made a mistake or error in his decision. ARBITRATION FORMS. For additional forms see PLEADINGS. Arbitration Submission Agreement. A General Form Of all matters in difference, etc. Where the parties intend to refer all disputes, the terms of the reference should be, " of all matters in dif- ference between the parties ; " but where the reference relates to matter in a particular cause only it should be, " of all matters of difference in the cause ."* Know all men by these presents: That we, the undersigned, do hereby mutually agree to submit all the matters in difference be- tween us, of every name, kind, and nature, to the determination and award of A. R., (of ), as arbitrator, {or A. R., B. I., and T. R. (all of ), as arbitrators], . That said arbitrator (or arbitrators, or any two of said arbitrators) shall hear and determine the same {insert if desirable, and award the payment of the costs (and expenses) incurred in such arbitration]. That said arbitrator shall make his (or their) award in writing, on or before the day of , A. D. . (Signed) A. B. \ Witnesses.] C. D. Arbitration Submission Agreement. General Form Of all matters in variance. Know all men by these presents : That divers disputes and controversies have arisen and are now depending between A. B., of , and C. D., of , touching and concerning (state -what). That, for the deciding and ending the same, it is hereby mutually agreed, by and between said parties, that all matters in variance between them, touching and concerning all and every matter and thing above mentioned and specified, shall be referred to the arbitrament and determi- nation of A. R., B. I., and T. R., or any two of them. That said award shall be made on or before the day of , and a copy thereof delivered to either or both of said parties desiring the same. {Witnesses. j (Signed) A. B. C. D. Arbitration Sn omission Agreement. General Form Of all suits, controversies, etc. Know all men by these presents : That we, the undersigned, A. B. (of ,) and C. D., (of ,) do hereby mutually agree to and with each other, to submit all and all manner of actions, cause and causes of actions, suits, con- troversies, claims and demands whatsoever, now pending, existing or held by and between us, to A. R., (of .) as arbitrator, who shall [or to A. R., B. I., and T. R., (all of }, who, or any two of whom, shallj arbitrate, award, order, judge, and determine of and concerning the same [in- sert if desired, with power to award the payment of the costs (and of the expenses) incurred in such arbitration. 1 That we do mutually agree to and with each other, that the award to be made by the said ar- bitrator (or arbitrators, or any two of said arbitrators) shall in all things by us, and each of us (and our respective heirs, executors, administrators, and assigns), be well and faithfully kept and performed. That such award shall be made in writing, under the hand of said arbiter (or arbiters, or any two of said r-2 Eng. L. & Eq. 184; 5 Barn. & Ad. 488 ; i Hill P. 103; 13 Gran- 535; 14 Tex. 56; 28 Penn. St. 514 ; arbiters), ready to be delivered to us, or either of us, on or before the day of , A, D. . Witness our hands, this day of , A. D. . (Signed) A. B. [Witnesses.] C. D. Arbitration Submission Agreement. General Form Of all matters, differences, etc. Know all men by these presents : That differences have for a long time existed, and are now existing and pending, between A. B., of , and C. D., of , in relation to divers subjects of controversy and dispute. That we, the said A. B. and C. D. , do hereby sub- mit said differences to the arbitrament of A. R. B. I., and T. R., or any two of them, to arbitrate award, order, judge and determine of and con cerning all manner of actions, suits, bills, bonds, specialties, executions, quarrels, controversies, trespasses, damages, debts, claims, demands, and all and every other subject of difference whatso- ever, at any time heretofore had, possessed, in- stituted, sued out, prosecuted, made, began, pending, existing, done, or suffered to be done, committed, or pending, by and between said par- ties, directly or indirectly. That said award shall be made in writing, under the hands of said arbitrators, or any two of them, ready to be delivered to said parties, or such of them as shall desire the same, on or before the day of . That said award shall, in all things, by us, and each of us, be well and faithfully kept, observed and performed. Witness our hands (and seals) this day of . A. B. (Seal.) W. T., N. S., Witnesses. C. D. (Seal.) Arbitration Submission Agreement. General Form, by Administrators, Corporations, etc. Know all men by these presents : That A. D. and M. R. are administrators of the estate of D. D., deceased. That the R. C. is a railway corporation created and existing under the act of the legislature (or General Assembly) of the State of . That (here insert the matters or thing in contro- versy). That said administrators and said corporation, by A. A. , its agent, hereunto lawfully authorized, do by these presents nominate and appoint A. R., B. I., and T. R. arbitrators between them, and to whom they refer the consideration of said differences, to hear and determine the same, etc. (as in other cases). In witness, etc. Arbitration Submission Agreement. General Form, with provision for an Umpire, etc. Know all men by these presents : That controversies exist and have for a long time existed between A. B., of , and C. D., of . That said A. B. and C. D. do hereby mutually agree to and with each other to submit all and all manner of actions, cause and causes of action, suits, controversies, claims and demands what- soever, now pending, existing, or held by and be- tween them to (A. R., of , as arbitrator, who shall, or to A. R., B. I., and T. R., all of , as arbi- trators), who (or any two of them) shall arbitrate, award, determine, judge, and order of and con- cerning the same. That said arbitrators shall have power to award payment of the costs and expenses in- curred in said arbitration. That said award shall be made in writing, un- der the hands of said arbitrators, ready to be de- livered to us, or either of us, on or before the - day of . That in case said arbitrators do not make then award on or before said day, then the matters and things above submitted shall be, and are by these presents submitted to the decision of such third person as shall be then, or shall theretofore have been appointed (in writing and indorsed hereon) by said arbitrators to act and arbitrate of and concerning said premises, and make his award 29 Vt. 72. s-22 Pick. 417; 4 Den. icu. t-3 T. R but,. 2 Chitty Bl. 17, n. AGENCY. and umpirage in writing on or before the day of . That said parties do mutually covenant to and with each other that the award (and umpirage) made as aforesaid shall by each of them and their legal representatives be well and faithfully kept, observed, and performed. Witness our hands, etc. (Signed) A. B. W. T., N. S. (witnesses). C. D. Arbitration Submission Agreement. Special Form Of particular matters only. Know all men by these presents: That a controversy is now existing and pending between A. B., of , and C. D., of , in rela- tion to (state what, as : an exchange of horses be- tween said parties at , on the day of , last past, whereby, etc., stating the matters of difference). That said A. B. and C. D. do hereby submit said controversy to the arbitrament of A. R., B. I., and T. R., or any two of them. That said award shall be made in writing un- der the hands of said arbitrators, or any two of them, ready to be delivered to said parties, or such of them as may desire the same, on or be- fore the day of next. That said award shall in all things by us and each of us be well and faithfully kept, observed, %nd performed. Witness our hands, etc. A. B. W. T., N. S. (witnesses). C. D. Clauses to be inserted in the preceding forms accord- ing to circumstances : CONCERNING ACCOUNTS. That a controversy has arisen between said parties concerning an account (a copy of which is hereunto attached, marked A.), and is to whether said A. B. ever delivered the (state what), men- tioned therein, or any part thereof; and if so, the value and price thereof, and within what time said C. D. shall pay the balance due upon said account. CONCERNING ANNUITY. That W. B. , widow of A. B. , deceased, was en- titled to dower in the following described real estate, which had belonged to said A. B. in his lifetime, situated in , to wit (describing it). That said real estate was sold by H. B., heir of said A. B., to P. R., said W. B. agreeing to take s her share thereof the quarterly sum of dollars, to be secured and paid to her during her lifetime in lieu of said dower. That a controversy has arisen between said parties as to what quarterly sum is a fair equiva- lent in lieu of said dower, and what amount of security, and the nature thereof, is necessary to be given by said H. B. to W. B. CONCERNING BOUNDARIES. That a controversy exists between the under- signed A. B. and C. D., concerning the boundary and division lines of the following described tracts and parcels of land situated in , to wit (des cribing them and stating the parts in controversy). CONCERNING HORSE TRADE. That a controversy exists between A. B. and C. D. concerning an exchange of horses made be- tween them at , in , on the day of . , wherein it is claimed by said A. B. that the horse exchanged by said C. D. was by him war- ranted sound in every respect, and that thereby said A. B. was induced to make said exchange. That said horse wa not at the time of said ex- change sound as warranted in this (state what). CONCERNING PARTNERSHIP. That A. B., C. D., and E. F. are partners doing business under the fir m-nam e of A. B. & Co. , and are about to dissolve said partnership. That a controversy exists between said part- ners concerning the settlement of the firm-busi- ness, and the business transactions and claims by and between said parties subsequent to the day of last. CONCERNING SUIT PENDING. That this submission shall not operate a dis- continuance of the action, No. , entitled A. B. vs. C. D., etc., now pending in the Court, in , without an award made pursuant to the terms hereof, an4 that its effect a? to such suit shall be merely to stay proceedings until such discontinuance, or until said submission shall become imperative or be revoked. CONCERNING TITLE AND TRESPASS. That a controversy exists between A. B. and C. D. concerning the title and right of possession of the following real estate, situated in (de- scribing it), whereon various trespasses have been committed by C. D. and his servants, in this (stating the nature of the trespasses and amount of damage). Another. That A. B., of , claims the title and right of possession of the following described premises., situated in (describing them). That C. D., of , claiming title thereto, and right of possession, with his servants, entered upon said premises and (state what damage was done). That by reason thereof said A. B. claims to have sustained dollars damage. CONCERNING WAGES. That a controversy exists between A. B. and C. D. concerning wages due said C. D. for services heretofore rendered said A. B. as , from the day of unto the day of , wherein C. D. claims (state what), and A. B. claims (state what). CONCERNING WARRANTY BREACH. That a controversy exists between A. B. and C. D. concerning a certain (horse) sold by said A. B. to C. D., at , in , on the day of , upon the sale of which said A. B. warranted said (horse) to be sound in every respect, and which (horse) it is alleged was not, at the time of such sale, sound as warranted. Arbitration Bond. With Sureties. Know all men by these presents : That A. B. and C. D. have, this day of , A. D. , submitted all their matters in difference, of every name, kind, and nature, to A. R. (B. I., and T. R.), to arbitrate, award, order, judge and determine of and concerning the same. That we, the undersigned, bind ourselves to A. B. (orC. D.)in the sum of dollars, that said C. D. (or A. B.) shall submit to the decision and award of said arbitrator (or arbitrators, or any two of said arbitrators), provided said award be made in writ- ing, on or before the day of , A. D. . (Signed) C. T>.,(or A. B.) S. S., Y. Y. Arbitration Bond. To be given by each party to the other. Know all men by these presents : That I, (A. B. or C. D.), of , am held and firmly bound unto (C. D. or A. B.), of , in the sum of dollars, for the payment of which I bind myself and legal representatives by these presents. The condition of this obligation is : That if the above bound (A. B. orC. D.), or his legal representatives shall submit, perform, and comply with the award, determination, judg- ment and orders of A. R., B. I., and T. R.,the arbitrators named and selected by said parties * to award, determine, judge, and order of and concerning (if a special matter here describe it, but if the submission is not limited say) all and all man- ner of actions or causes of action, suits, contro- versies, claims and demands whatsoever, now pending, existing, or held by and between said (A. B. and C. D. or C. D. and A. B. * * ) (with power to award payment of costs and expenses incurred in said arbitration), provided, however, that said award be made in writing, under the hands of arbitrators, or any two of them, and ready to be delivered to said parties, or such of them as may desire the same, on or before the day of , at , * * * then this obligation shall be void, otherwise it shall remain in full force Executed in presence of ( Signed W. T., N. ., Witnesses, j . (A. B. or C. D.) Same Without Discontinuing a Suit. * * Provided, that this submission shall not operate a discontinuance QT otherwise affect AGENCY. 69 suit now pending in the court, between said A. B. and C. D., without an award made pursu- ant to the terms hereof. Same Oath of Arbitrators Contemplated. * And sworn (or affirmed) honestly and impar- tially to hear. Sti me Umpire Contemplated. * * * Provided, also, that if said arbitrators shall not, within the time limited, make said award, determination, judgmentand orders, then and in such case the same shall, in all respects, in like manner and with like effect, be made, de- termined, adjudged and ordered by W. R. (a per- son by said arbitrators indifferently chosen as umpire) n or before the day of , at . Arbitration Appointment of Umpire. Arbitrators disagreeing. Know all men by these presents : That by agreement {or bond) bearing date the . day of , the matters in difference, etc. , be- tween A. B. and C. D., were by them submitted to our consideration to hear, determine, and award thereon (with power to select an umpire in case of disagreement, etc.) That we are not able to determine said differ- ences. That we do by these presents choose and appoint U . R. to determine and award said mat- ters in difference to us submitted, pursuant to said agreement (or bond). Witness our hands, this day of , A. D. . A. R..B. I..T. R. Arbitration Notice to Arbitrators. A. R.,B. I.,andT. R. Gentlemen You have been chosen arbitrators on behalf of the undersigned, to arbitrate and award between them, in divers matters and things, set forth in their submission, which will be produced for your inspection when you meet at , in , on the day of , at o'clock -- M., to hear the allegations and proofs of yours, &c., A. B. Dated . C. D. Arbitration Notice to Witness. W. S. : Dear Sir The arbitration concerning certain differences between A. B. (or myself) and C. D. will be had before A. R., B. I., and T. R., at , in , on the day of , at o'clock M. Do not fail to attend. Yours, &c., A. B. Arbitration Oaths. See AFFIDAVITS, above. Arbitration Affidavit of Arbitrators. These affidavits must be made before some one author- ized by law to administer oaths, as a magistrate, notary public, clerk of a court of record, and the like. A mere arbitrator (not authorized by law) cannot administer an oath or take an affidavit.* State of , county, ss. We, the undersigned, and each of us, do sever- ally solemnly swear, that we will honestly and impartially hear and determine all the matters in difference, of every name, kind, and nature, exist- ing between A. B. and C. D., which shall be sub- mitted to us for arbitration, and a true award make thereon, according to the evidence, so help us God. A. R..B. I.,T. R. Subscribed and sworn to before me, this day of , A. D. . ( Signature of officer before whom siuorn and his official title.) Arbitration Affirmation of Arbitra- tors. State of , county, ss. We, [the undersigned arbitrators], and each of us, do severally, solemnly, sincerely, and truly declare and affirm, that we will honestly and im- partially hear and determine all the matters in difference, etc., existing between A. B. and C. D., which shall be submitted to us for arbitration, and make a just award thereon, according to our best understanding, and this we do under the pains and penalties of perjury. A. R., B. I., T. R., Arbitrators. Subscribed and affirmed to before me, this fay of , A. D. . ( Officer's name and official title.) t-5 How Pr. 318; j N Y. teg. Obs. 189. Arbitration Affidavit of Witness. State of , county, ss. I do solemnly swear, that the testimony I shall give in the matter of arbitration between A. B. andC. D., submitted to A. R.,B. I.,and T. R., arbi- trators, shall be the truth, the whole truth, and nothing but the truth, so help me God. W. S. Subscribed and sworn to before me, this day of , A. D. . ( Officer's name and official title.) Arbitration Affirmation of Witness. State of , county, ss. I do (or we, and each of us, do severally) solemnly, sincerely, and truly declare and affirm, that the testimony I ( or we) shall give, in the matter of ar- bitration between A. B. and C. D., submitted to A. R., B. I., and T. R., arbitrators, shall be the truth, the whole truth, and nothing but the truth, and this I (or we) do under the pains and pen- alties of perjury. (Signed ) W. S. , (or W. T. , N. S. , etc.) Subscribed and affirmed to before me, this day of , A. D. . (Name and official title.) Arbitration Appointment of Arbitra- tors. See SUBMISSION AGREEMENT, above. Arbitration Continuance Agreement. We hereby agree that the time for making the award in the matters referred by the within (or annexed) submission shall be extended unto the day of . (Signed) A. B. Witness, A. R.,B. I..T. R. C. D. Arbitration Revocation of Powers. A seal is only necessary to the revocation if the sub- mission be under seal." A. R.,B. I.,andT. R. Gentlemen I hereby revoke your powers as arbitrators under the agreement of submission (or bond) entered into between A. B. and (myself, or) C. D., on the day of last. D. C. Dated this day of . Arbitration Revocation Notice. A. B. : Dear Sir I have this day revoked the powers of A. R., B. I., and T. R., as arbitrators under the agreement of submission (or bond), en- tered into between us on the day of last, by an instrument of which the annexed is a copy. Dated this day of . C. D. Arbitration Award, General Form. By a single Arbitrator. Know all men by these presents : That by agreement (or bond ) bearing date the day of , the matters in difference, etc., between A. B. and C. D. were by them submitted to the consideration of the undersigned arbitrator, to hear, determine, and award concerning the same. That by virtue of said agreement (or bond >, and after hearing the allegations and proofs of said parties, and examining the subjects in contro- versy between them, I do award, determine, and order as follows : That, etc. (setting out the matters and things awarded, determined and ordered, by follo^ving the submission, determining all the matters submitted, and stating the award, determination, and orders in such a manner as to leave no doubt of the arbitrators' intention, or the nature and extent of the duties im- posed on the parties). Witness my hand, this day of , A. D. . A. ft.., Arbitrator. Arbitration Award, Oeneral Form. By two or more Arbitrators. Know all men by these presents, that W2, ih~ undersigned, arbitrators of all the matters in dif- ference, of every name, kind, and nature, between A. B. and C. D., by virtue of their agreement of submission of said matters, dated at , on the day of , A. D. , do award, order, judge and determine of and concerning the same, as follows : That, etc. (here state the award, consonantly with and following the submission, so that it affects only the parties to the award, the matters submitted, -with clearness, certainty , and without mistake or doubt.) n-8 Johns. 125. AGENCY. In witness whereof, we have, in each other's presence, hereunto set our hands, this day of , A. D. . A. R.,B. I..T.R. Arbitration Award, General Form. By three, or ttiore, or less Arbitrators. To all to whom these presents shall come, know ye : That we, A. R., B. I., and T. R., arbitrators, to whom was submitted the matters in controversy existing between A. B. and C. D., as by agree- ment (or bond of submission) bearing date this day of , more fully appears. That we, the said arbitrators, being first duly fvorn, heard the allegations and proofs and alle- gations of parties, and examined the matters in controversy submitted, do make the following award and determination : That, etc., {here set out the matters awarded and determined) . In witness whereof, we have hereunto sub- scribed these presents, this day of , A. D. . A. R., B. I., T. R., Arbitrators. Arbitration Award. General Form. By three, or more, or less Arbitrators. To all to whom these presents shall come, or may concern, know ye : That the matters in controversy existing be- tween A. B., of , and C. D., of , as by the conditions of their respective bonds of submis- sion executed by said parties respectively, each to the other (or by their submission in writing), bear- ing date the day of , more fully appears, was submitted to A. R., B. I., and T. R., as arbi- trators. That said arbitrators being sworn (or affirmed) according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this, their award, in writing : That, etc. (setting out the matters awarded and\ adjudged). In witness whereof, we have hereunto sub- scribed our names, this day of , A. D. . A. R., B. I., T. R., Arbitrators. Arbitration Award, General Form. By three, etc. Another form. To all to whom these presents shall come, we, A. R., B. I., and T. R., send greeting: Whereas, divers suits and controversies have been and are yet pending between A. B., of , and C. D., of , for the determination of which said A. B. and C. D. have submitted themselves, and become bound each to the other, by their several obligations, dated the day of , in the sum of dollars, with conditions therein, to abide by, sjupport, and keep the award, deter- mination, and judgment of said A. R., B. I., and T. R., arbitrators, indifferently chosen, as well on the part and behalf of said A. B. as on the part and behalf of said C. D., to award, deter- mine, and judge of and concerning all and all manner of actions, controversies, and demands whatsoever pending between said A. B. and C. D., from the beginning of the world until the day and date of these presents (or of said obligations), and that said award, determination, and judg- ment should be in writing, under our hands (and seals), on or before the day of , as by said obligations and conditions more fully appears. Therefore, know ye : That we, the said A. R., B. I., and T. R., taking upon us the charge of said arbitrament and award, being duly sworn, and having deliber- ately and at large heard and considered the allegations of both parties and witnesses, con- cerning said premises, do make and put in writing our award, determination, and judgment between said parties concerning said premises, in the manner and form following, to wit : That, etc. (setting forth the matters and things warded, determined, and adjudged). In witness, etc. A. R., B. I., T. R., Arbitrators. Arbitration Award. General Form. By indorsement on the submission. We, A. R., B. I., and T. R., the within-named arbitrators, having undertaken the arbitration upon and concerning all and singular the matters and things therein to us referred, do make this, our award, in the manner following, to wit : We do award, determine, adjudge, and order That, etc. (setting forth the matters and thing awarded, determined, etc.) In witness, etc. Arbitration Award by Umpire. 'Whereas, A. B., of , of the one part, and C. D.,of , of the other part, have mutually ert tered into bonds to each other, bearing date the day of , in the penal sum of dollars, conditioned that said parties shall well and truly abide and perform the award and determination of A. R. , B. I. , and T. R. , arbitrators, indifferently chosen by said parties, of and concerning all manner of actions, controversies, etc., pending between said parties, said award to be made on or before the day of , with the condition that if said arbitrators should not make such award by the time so agreed upon, then said par- ties should in all chingswell and truly abide, per- form and keep the award, determination, and umpirage of such person as should thereafter be chosen umpire by said arbitrators between said parties of and concerning said differences, said umpire to make his award or umpirage on or be- fore the day of . And whereas, said A. R., B. I., and T. R., met upon said arbitration, and did not make their award between said parties within the time limited therefor, and did thereupon choose the undersigned U. R. umpire, as agreed in the premises ; therefore, know ye : That said U. R., having undertaken the arbitra- tion aforesaid, being duly sworn, having heard the allegations and proofs of parties, and ex- amined as well the said parties as their respective witnesses, concerning said actions, controversies, etc., and fully considered the same and the mat- ters to me referred, do make this, my award and umpirage, in the manner following: I do award, adjudge and order That, etc. (setting forth the matters and things awarded, etc.) In witness whereof, I have hereunto set my hand, this day of , A. D. . U. R., Urn fire. Arbitration Award by Umpire. Another form. Know all men by these presents That, i reciting the conditions of the agreement of sul>ti.'.'::oii, vr arbitration bond ). That said arbitrators did not make any award in the premises within the time for that purpose limited as aforesaid. That by a writing under their hands, dated the day of , said arbitrators did agree that I, the undersigned, U. R., should be the umpire in and concerning said matters of difference. Now know ye : That, etc. ( setting forth the matters and things awarded and determined, etc.) Clauses to be inserted in the preceding forms , according to circumstances. CONCERNING ASSIGNMENT. That said C. D. shall make, execute and deliver to said A. B. a good and sufficient assignment of a certain bond and mortgage executed and deliv- ered to said C. D. by one E. F., on or before the day of , and that said A. B. shall pay said C. D. the sum of dollars therefore, upon the execution and delivery of the same. CONCERNING BOND. That said A. B. shall, on or before the day of , well and sufficiently make, execute and deliver, a bond or obligation in the penal sum of dollars, conditioned for the payment of dollars to C. D., or his assigns, on or before the day of , etc. (or for the performance of, etc., stating what). CONCERNING CONVEYANCE. That the within-named A. B. shall, on or before the day of , by such deed or deeds s said C. D. (his heirs, or assigns, or counsel) shall advise, well and sufficiently grant, convey, and assure unto said C. D., his heirs and assigns forever, the fol- lowing described real estate, situated in the State of , county of , *9 wit (descrH>>*" , AGENCY. That said C. D., in consideration thereof, and upon the execution of said conveyance or con- veyances, shall pay or cause to be paid unto said A. B. (his heirs or assigns) the sum of dollars. And shall, if required, give security, by bonds or mortgages, for the payment of dol- lars, in instalments, payable on the dayb of, etc. CONCERNING COSTS. That dollars, the costs, charges, and ex- penses of this arbitration, be paid by A. B. i, C. D.) Another. That dollars, the costs, charges and ex- penses of this arbitration and its incidents, be paid as follows: dollars by A. B., and dollars by C. D. CONCERNING DAMAGES. That said A. B. sold unto said C. D. the follow- ing articles (describing them), representing them to be in good, merchantable and sound condition, and in these and every other respect warranting them. That said articles were neither good, merchant- able, or sound, and were and are worth only dollars. That said A. B. shall repay said C. D. dol- lars, the difference in price ; dollars, for care and custody of said property; and dollars, cartage of the same, and dollars, for costs and expenses of this arbitration. CONCERNING A DEBT. That A. B. is entitled to the sum of dollars, with interest, at the rate of per cent, per an- num, from the day of . Or, That said C. D. shall pay the said A. B. , on or be- fore the day of , the sum of dollars, with interest, at the rate of per cent, per annum, from the day of until the payment thereof. Another. That said A. B. has no cause of action against said C. D. CONCERNING DELIVERY OF GOODS. That said C. D. shall, on demand (on or before the day of at ), freely deliver up to said A. B. the following goods {describing them so that a stranger may easily designate theni), the prop- erty of said A. B. {or the property of D. D., deceased). CONCERNING DELIVERY OF WRITINGS. That said A. B. shall (on demand of C. D., or his legal representative; or on or before the day of at ; or upon days' notice) deliver unto said C. D. (or his legal representative) the following writings (describing them ). Or, All leases, deeds, mortgages, and instruments of writing whatsoever, concerning any and all es- tates in possession of said C. D., or of any other person in trust for him, and especially the lease of {describe premises). Same For Gancellation. That said A. B. shall forthwith, or before the day of , at , deliver unto said C. D. the following described writings, cancelled, or to be cancelled on delivery, to wit (describing them). CONCEKNINC DISCONTINUANCE OF ACTION. That said A. B., or his legal representatives, shall, on or before the day of , cause and procure all actions and suits commenced and pending against said C. D., in any and all courts whatsoever, by or in the name of said A. B., or in the name of any other person or persons, by the consent, means and procurement of said A. B., thenceforth to cease, and be no further pro- ceeded in by him or them, and to be utterly dis- continued and made void. That the costs accrued and to accrue of said actions, suits, and discontinuance, shall be paid by said . CONCERNING HORSE TRADE. That said A. B. did, on the day of , at - , sell unto said C. D. a horse, answering the following description (describe the horse by age, ntlor, sex, size, etc). That said C. D. was to pay said A. B. therefore dollars, upon the delivery of said horse (or un |!lC day of j, That said A. B. shall, upon the payment of said sum, deliver said horse to C. D. (allowing said C. D. the sum of dollars, to be deducted therefrom fov damage for non-delivery and use of said horse). CONCERNING INTEREST. That said C. D. shall pay unto said A. B. inter- est on the sum of dollars aforesaid, at the rate of percent, from the day of unto the day of (or until full payment thereof). CONCERNING MINING CLAIM. That said C. D. is entitled to, and shall have set apart to his own use, the following described mining claim (describing it). That in consideration thereof said C. D. shaH (state what). CONCERNING PAYMENT. That said A. B. shall (on demand : or on or before the day of , at ; or within days fro the date hereof) pay, or cause to be paid, to said C. D. the sum of dollars, in full discharge, pay- ment, release, and satisfaction of and for all claims, debts, demands and moneys whatsoever, due or owing from him unto said C. D. at any and all times prior to the date of said submission. Same Bond For. That said A. B., upon days' notice, shall well and sufficiently make, execute and deliver to said C. D., a bond or obligation, in the penal sum of dollars, condition for the payment of said sum of dollars, to C. D., his heirs, or as- signs, on or before . CONCERNING PAYMENT OF COSTS. See Costs, above. That the sum of dollars, being the expenses and charges incident to this arbitration, shall be paid by them, the said A. B. and C. D., in equal amounts and shares. Same. That said C. D. , his executors or administrators, shall, between the hours of A. M. and P. M.,at , pay unto said A. B. the sum of dollars, in full satisfaction for his damages and costs, in a certain action lately commenced by him against said A. B. , and also for the costs occasioned by this reference. CONCERNING PERFORMANCE. That said A. B. shall (state the particular things required to be done by A. B.) That said C. D. shall (state the particular things required to be done by C. D.) CONCERNING RELEASE. That all controversies shall cease between said parties, and that each of them shall, on or be- fore the day of , duly execute and de- liver to the other a general release, in writing, of all actions, suits, demands, and obligations what- soever existing at or prior to the date of said sub- mission. Same. That said A. B. shall, on or before the day of , as his act and deed, duly execute and deliver unto said C. D. a general release, in writing, of all manner of actions, suits, controversies and demands whatsoever, from the beginning of the world unto the day and date of said submission. Arbitration Award, Service of. Proven by affidavit of person serving. State of , county. W. S., being duly sworn, says: That, on the day of , at o'clock, M., at , in , he served the award (of which the within is a true copy or counterpart) by delivering the same unto the within-named A. B. and C. D. (Signature of affiant.) Subscribed and sworn to before me, this day of , A. D. . J. P., Justice of the Peace. Arbitration Award, Verification. By Subscribing or other Witness. State of , county, ss. W. S., being duly sworn, says : That he knows A. R., B. I., and T. R., the arbi- trators named in the annexed award. That, on the day of , at , he was present and saw them (or that he heard them cacti ieclare that they did severally) ign and publish the same as their final award, determination. an AGENCY judgment of the matters and things in contro- versy submitted them, between A. B.,of , and C. D.,of . That the names of said A. R., B. I., and T. R. are the actual and genuine signatures of said ar- bitrators. (Signed) W. S. Subscribed and sworn to before me this day of . ( Officer's signature and official title. ) Same By Arbitrators. State of , county, ss. A. R., B. I., and T. R., being duly sworn, say: That they are the arbitrators named in the an- nexed award. That, on the day of , at , as such ar- bitrators, they did sign and publish the same as their final award, determination and judgment of the matters and things in controversy, sub- mitted them by A. B. , of , and C. D. , of . A. R., B. I., T. R., Arbitrators. Subscribed and sworn to, etc. (Officer's signature and title.) Attorneys are those who act for others by virtue of appointment. They are of various kinds. AN ATTORNEY IN FACT is a person to whom the authority of another, who is called the CONSTITUENT, is by him lawfully delegated. The term, " attorneys in fact," is employed to designate persons who act under a special agency, or a special letter of attorney, so that they are appointed in the matter for the deed or special act to be performed ; but, in a more extended sense, it includes all other agents em- ployed in any business, or to do any act, or acts, in and about the same, for another.* All persons who are capable of acting for themselves, and even those who are disquali- fied from acting in their own capacity, if they have sufficient understanding, as, infants of a proper age, may act as attorneys for others. b A Letter or Power of Attorney is an in- strument of writing by which one or more per- sons (called principals or constituents) authorize one or more other persons (called the attorneys) to do some lawful act for, in the stead, and place of the former. An instrument of writing aathorizing a person to act as the agent or attor- ney of the person granting it. This instrument isi more generaly called a power of attorney. A general power authorizes the agent to act generally in behalf of the principal. A special (or limited) power is one limited to particular acts. A power of attorney may be parol or under seal. d It is a general rule that one acting under a power of attorney cannot execute for his princi- pal a sealed instrument, unless the power of attorney be sealed.* And where the statute prescribes certain formalities, and makes them requisite for the execution of an instrument, a power to make that instrument must, in gen- eral, be itself executed with similar formalities/ R-Rac. Abr. Attorney; Story Ag. ? 25. b-Co. Litt. 52,*; i Esp. 142; 2 Id. 511. c-i Mood. Cr. Cas. 52- 70. d-i Parsons' Contr. 94. e-jT. R. 209; 2 B. & P. 338 ; 5 B. & C. 3,5 ; 2 Greenl. 258 ; 4 T. R. 313 ; i Chitty, 707; 7-M. & W. 322,331; 5 Mass. 11-24; J 9 Johns. 60; 2 Pick. 345; 7 Cranch. 299; 30 Vt. 159; 4 Wash. C. C. 471 ; 9 Johns. 285; 16 Ga. 424; i Hall. 262; n Pick. 400; 26 Vt. 156; 7 M. & W. 331, 332-334; 2 G. Greene. 427; 6 G. & J. 250; 5 Bing. 368; 12 Wend. jas' 9 Id. 68; i, ii 111. 544; 7 Met. 244; a Me. 358. But, as oral or written powers are equally parol, one by oral authority may sign the name of his principal without a seal thereto ; and so he may be authorized orally to bind his principal by- written contract, when the statute of frauds requires a writing signed by the parties sought to be charged, as the foundation of an ac- tion.* Powers of attorney are strictly construed. 11 General terms used with reference to a particu- lar subject-matter are presumed to be used in subordination to that matter. 1 Where a power is special, and the authority limited, the attorney cannot bind his principal by any act in which he exceeds his authority. The authority of an attorney is to be strictly construed ; though it is to be taken to include all necessary means of executing it with effect. Hence a party dealing with an attorney under a power of attorney of another, should look to the terms of the power to see that the authority given is sufficiently broad. If a power prescribes any condition in its execution, it must be strictly pursued. Where a power is vested in several persons jointly, all should unite in executing it. An attorney acting under a power cannot delegate his authority or appoint a substitute, un- less the power expressly gives authority to do so. A revocation of a power takes effect, as to an agent, from the time it is communicated to him; as to third persons, from the time it is communicated to them. An attorney in a simple power of attorney must act only in the name of his principal ; in signing, should sign his principal's name, adding his own, thus : A. B., by C. D., his attorney. It is only necessary to have a power of attorney and the substitution acknowledged, when the power given is to convey, or otherwise affect or encumber any land, tenement, or heredita- ment. In such case the acknowledgment and filing for record is the same as a deed or mortgage. POWERS OF ATTORNEY FORMS. The general elements of a power of attorney are : 1. The names of the principal or principals (constitu- ents) and of the attorney or attorneys, and words of appointment. 2. The nature and description of the duty imposed, and the particular mode of performance. 3. The character of the power -imposed, whether general or limited (with conditions, limitations, restric- tions, etc., if any). 4. The power of substitution and revocation. 5. The ratification or confirmation. 6. The signature of the principal or principals. 7. The proper attestation and acknowledgment, when required by law (as, in case the power is to convey or encumber real estate). 8. The recording, when required by law (as, in case the power is to convey or encumber real estate). f-io Foster (N. H.) 420; 6 Wheat. 577. |c-8 Pick. 9 ; Q Ves. 234; i Sch. & L. 22; 4 Johns. Ch. 659: 5 Blng. N. C. 607. h-6 Gush. 117; 5 Wheat. 326; 3 M. & W. 402 ; 8 Id. 806; 5 Bingh. 442. i-i Taunt. 349; 76. & C. 278 : i Younge & C. 394 ; 7 M. & W. 595 ; 5 Denio, 49 ; 7 Gray, 287 ; see, as to a power to collect a debt, i Blackf. 252 ; to settle a claim, 5 M, & W. 645 : 8 Biackf. 291 ; to make an adjustment of all claims, 8 Wend. 494 ; 7 Watts. 716; 14 Cal. 399; 7 Ala. (N, S.) 800; toaccept bills, 7 B. & C. 278. AGENCY. 73 Power of Attorney General Form. Simple and short form. Know all men by these presents : That I, the undersigned, of , do hereby make, constitute, and appoint E. F., of , my true and lawful attorney, for me, and in my name and stead to (here insert the subject-mutter of the power), to do and perform all the necessary acts in the execution and prosecution of the aforesaid business, and in as full and ample a manner as I might do if I were personally present. A. B. \KxeCHted in presence of\ For form of "ACKNOWLEDGMENT," see that title. Power of Attorney General Form. Short, -with power to revoke and substitute. Know all men by these presents : That I (name of principal), do by these presents appoint, constitute, and make (name of attorney) my lawful and true attorney, for me, and in my name, place, and stead to (state what). That I do by these presents grant and give unto my said attorney full authority and power to do and perform all and every act and thing whatso- ever necessary and requisite to be done in and about the premises, as I might or could do, if personally present, with full power of substitu- tion and revocation, hereby confirming and rati- fying all that my said attorney shall lawfully do or cause to be done by virtue hereof. In testimony, etc. (as in the above forms). For form of "ACKNOWLEDGMENT," see that title. Power of Attorney General Form. Know all men by these presents: That I, A. B.,of county, in the State of , have made, constituted, and appointed, and by these presents do make, constitute and appoint A. Y., of county, in the State of , my true and lawful attorney in fact, for me, and in my name, place, and stead, to (here insert the power conferred or acts to be performed ). That I give unto my said attorney full power to do everything whatsoever requisite and neces- sary to be done in the premises, as fully as he could if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney shall law- fully do, or cause to be done, by virtue hereof. In witness whereof, I have hereunto set, etc. If the power be to convey, encumber, or otherwise Effect real estate, then this clause should be the same as in the conveyance of the real property, which see. ) For form of "ACKNOWLEDGMENT," see that tide. Power of Attorney General Form. Know all men by these presents : That I (name of princip.il}, of (place of resi- dence of the principal), have by these presents con- stituted, made, and ordained, and in my place and stead substituted (name of attorney), to be my lawful, sufficient, and true attorney, for me, and in my name, place, and stead to (set forth the purpose or purposes for which the power is given). That I hereby grant unto my said attorney full authority and power in and about said premises : and to use all due course, means, and process of law for the complete, effectual, and full execution of the business above described ; and for said premises to appear and me represent before any governors, judges, justices, and ministers of law whomsoever, in any court or courts of judicature, and there, on my behalf, defend and prosecute all actions, causes, matters and things whatsoever relating to the premises; and in all said premises make and execute all due acquittances, dis- charges, and releases. That said attorney shall have full authority and power to accomplish, act, determine, do, finish, and transact all matters and things whatsoever relating to the premises, as amply, effectually, and fully, to all intents and purposes as I, his said constituent and principal, if present, might or ought, although said matters and things should require more special authority than is herein comprised and included. That I hereby allow, ratify, and hold firm and valid all matters and things whatsoever my said attorney or his substitutes shall lawfully do or cause to be done in and about said premises, by virtue of these presents, In testimony whereof, I have hereunto set, etc. (If the power is to convey, encumber, or other-wise affect real estate this clause [which includes the signa- ture and seal of grantor, or principal, witnesses, etc., etc.] should be the same in all essential respects as that of the deed, mortgage, etc.) For form of "ACKNOWLEDGMENT," see that title. Power of Attorney General Form. To several, jointly. Know all men by these presents: That I, A. B., of , do by these presents make, constitute, and appoint A. T., O. R., and N. Y., jointly, my true and lawful attorneys, for me, and in my name, place, and stead to (stating the purpose of the appointment). Power of Attorney General Form. To several, to act jointly or separately. Know all men by these presents : That I, A. B., (of the city of , county of , and State of ), do by these presents make, con- stitute, and appoint A. T.,T. O., R. N.,and N. Y., jointly, and each of them severally, my true and lawful attorney and attorneys, for me, and in my name, place, and stead to (state the purpose for which the appointment is made). Power of Attorney General Form. To two persons -joint and several in case of ab- sence, death, or refusal of either or both, then ta another, etc. Know all men by these presents : That I (or we), A. B., of (and C. D., of ), do by these presents make, constitute, and ap- point A. T. and T. Y. my (or our) true and lawful attorneys, and in case of the absence or death of either or both of them, or refusal of either or both of them to act by virtue hereof, then we hereby make, constitute, and appoint A. A., alone or together with him of them the said A. T. andT. Y. , who shall be living and present, and will act as my(essel by which the goods are shipped ) and in my name and as my act and deed, to sign my name to, seal and deliver any bond or bonds required by the collector of said district for secur- ing the duties on the same. Also, and in my name and as my act and deed, to sign my name to, seal and deliver any bond or bonds requisite for obtaining the debenture on any of said goods, wares or merchandise, when exported for me. And generally to transact all business at said custom house, in reference to said goods, wares and merchandise which may be requisite and necessary in the premises, as fully as I could if personally present. And I hereby declare that all bonds signed, sealed and delivered by my said attorney in the premises shall be as obligatory on me as those signed, sealed and delivered by myself. In witness, etc. Revocation of Power General Form. Know all men by these presents : That I, A. B., of , in and by my letter of at- torney bearing date the day of , did make, constitute and appoint A. Y. my attorney, as by said letter more fully appears. That I, the said A. B., do by these presents an- nul, countermand, revoke and make void said letter of attorney and all authority and power thereby given said attorney, A. Y. In witness, etc. Revocation of Power General Form. Know all men by these presents : That I, A. B., of , in and by my letter of at- torney bearing date the day of , did make, constitute and appoint A. Y. , of , my true and lawful attorney, for me and in my stead, to (state what ) as by said letter will more fully appear. That I, the said A. B. , have annulled, counter- manded, revoked and made void, and by these presents do annul, countermand, revoke and make void the said letter of attorney and all authority and power thereby given or intended to be given to the said A. Y. In witness, etc. Revocation of Power and Substitution. Know all men by these presents : That I, A. B., of the city of , and State of , did heretofore, by a certain instrument in writing, or letter of attorney, bearing date the day of , empower A. Y., of , in my name and for my use, to (state what) ; and to do and perform all other matters and things as fully as I myself might or could do for the purposes intended, etc. , and to that or like effect, as by said instrument more fully and at large appears. That I, the said A. B.,for divers good causes and valuable considerations, have revoked, re- called, countermanded and made void, and by these presents do revoke, recall, countermand, and to all intents and purposes make null, void and of none effect the said recited instrument in writing, or letter of attorney, and all the powers and authorities therein and thereby given and granted, and all other matters and things therein contained ; and all acts, matters and things what- soever, which shall or maybe acted, done or per- formed by virtue or means thereof, in any manner whatsoever. And further know all men : That I, the said A. B.,do by these presents ap- point, constitute, depute, make, name and put in my place and stead, S. ., to be my true and law- ful attorney, for me and in my name and to my use to, etc. In witness, etc. Substitution of Attorney Short Form. (For value received) I hereby appoint S. E. (irrev- ocably) as my substitute, with all the powers within (or above; given to me. (Signed ) A. Y. Substitution of Attorney Short Form. To be indorsed on the Power of Attorney. I hereby appoint S. E. as my substitute and in my stead to do and perform every act and thing which I might or could do by virtue of the within power of attorney. (Signed) A. Y. Substitution of Attorney General Form. To be indorsed on the Power of Attorney. Know all men by these presents : That I, A. Y., of , by virtue of the authority given me by the within power of attorney, do sub- stitute S. E.,of , as attorney in my stead, to do, perform and execute every act and thing which I might or could do by virtue of the said power of attorney. Hereby ratifying all that my said sub- stitute shall or may do in the premises and of the within power of attorney. In witness, etc. For form of ACKNOWLEDGMENT, see that tide. Substitution of Attorney General Form. Know all men by these presents: That I, A. Y., of , by virtue of the authority and power to me given, in and by the power of attorney of A. B., of , which is hereunto an- nexed, do appoint and substitute S. E., of , to do, perform and execute every act and thing which I might or could dp, in, by or under the same, as well for me, as being the true and law- ful attorney and substitute of the said A. B. Hereby ratifying all that said attorney and sub' stitute shall do in the premises, by virtue hereof and of said power of attorney. In witness, etc. For form of ACKNOWLEDGMENT, see that title. Substitution of Attorney General Form. Know all men by these presents : That A. B. , by his letter of attorney, a copy of which is hereunto annexed, did appoint and con- stitute me, the undersigned, A. Y., his attorney for the purposes and with the powers in the same letter of attorney at large contained. That I, the said A. Y., by virtue hereof, and of the power of substitution in said letter of attor- ney appearing, do substitute and depute S. E. , of , to be the lawful and sufficient attorney of said A. B., with all and every authority and power of acting in the name, place, stead, and to the use of said A. B., granted to me by said letter of attorney, which I can lawfully exercise and delegate. And I hereby ratify and confirm whatsoever the said S. E. shall lawfully do, or cause to be done in the name of the said A. B., or in my name as attorney of said A. B., to the use of said A. B., by virtue of these presents, and the power of sub- stitution in said letter of attorney contained. In witness, etc. For form of ACKNOWLEDGMENT, see that title. AN ATTORNEY AT LAW is an officer of a court of justice, who is employed by a party in an action to manage the cause for him. In this sense he is also called advocate, counsellor at law, lawyer, and solicitor. AGENCY. 81 A client is one who employs and retains an attorney and counsellor to manage or defend a suit or action, to which he is a party, or to ad- vise him about legal matters. Appearance by attorney is the general rule, and appearance without, the exception.' It results from the nature of their functions, and of their duties, as well to the court as to the client, that no one can, even by consent, be the attorney of both the litigating parties in the same controversy. 1 * When a party has been aggrieved, and is de- sirous of obtaining redress for the violation of his rights, he should adopt the best means to put himself completely in the right, and to se- cure the evidence required to support his case. As most persons are ignorant of the means to be adopted to gain that end, the party should immediately apply to some attorney to aid him. Although a party may himself conduct a suit brought by or against him, yet experience proves it is very dangerous for him to manage his own case, whatever may be his learning or qualities. He labors generally under such an excitement that it would be difficult to behave with that temperance and discretion so neces- sary to the proper management of a cause ; besides, it is proper that he should not come in personal collision with the opponent, for this would produce many indiscreet acts which would be prejudicial to his cause. In the selection of an attorney it is impor- tant to select not a mere lawyer, but a man of honor and honesty, having a knowledge of his professional duties, of the world, and being a good negotiator : one who is disposed to avoid litigation, and, above all, one who has not any connection with the adverse party. Pay him a retaining fee. When an attorney is thus em- ployed, there is an implied contract, on his part, that he will use due diligence in the course of legal proceedings. He is bound to act with the most scrupulous honor, and to attend to the interest of his client only. The principal duties of an attorney are : to be true to the court and to his client; to man- age the business of his client with care, skill, and integrity ; d to keep his client informed as to the state of his business ; and to keep his secrets, confided to him as such. An attorney at law, by his admission as such, acquires rights of which he cannot be deprived at the mere discretion of the court. 8 Such an attorney need not prove his authority to appear n-Appearance by an attorney has been allowed in England from the time of the earliest records of the courts of that country; they are mentioned in Glanville, Brocton, Fleta, and Britton ; and a case turning upon the party's right to appear by attorney, reported Year B., 17 Edw. 3, p. 8, case 23 ; in France such appearance was first allowed liy letters patent of Philip le Bel, A. D. 1290 ; i Fournel Hist, des Advocate, 42, 43, 02, 93 ; 2 Loisel. Contumes, 14, 15. fo-Farr. 47. c-S Watts. 81 : 3 W. & S. 486. d-4 Burr. ao6i ; i B. & Aid. 202 ; 2 Wils. 305 ; i Bingh. 347. e-2o Cal. 427. f-g Wheat. 738-83 : 6 Johns. 31-296; 27 Miss. 567; 7 Harr. & Johns. 275 ; 16 S. & R. 369 ; i N. H. 23 ; 8 Foster (N. H.) 302 ; it Johns. 464 ; Burghart vs. Gardner, 3 Barb. 64 ; i Jac. & W. 457 ; solicitor is the legal deMsnation Of one who fills the place in a court of equity correspond- for any party in court, and act for them there, unless his authority be denied, and some evi. dence be offered tending to show that he has no such authority.' But a person who is not an attorney at law, and who offers to appear for another in court, by special authority, must prove such authority if requested.* An at- torney's implied duty to use reasonable skiii, care, etc., is the same as that of other persons, to whose care and skill anything is intrusted. 11 He is not responsible for a mistake in a doubt- ful point of law, 1 or of practice^ nor for the fault of counsel retained by him. k He is liable for disclosing privileged communications. 1 If discharged by one party, he may act for an opposite party, provided he makes no improper use of knowledge obtained by him while acting for the first party. But he may not act for an opposite party if discharged by his first client for misconduct." The law implies a contract on the part of the client to pay his attorney the legal fees, or statute rate of compensation. And if a client asserts that the services were to be rendered for a less compensation, the burden rests on him to prove this bargain.? If a bargain be proved, the attorney cannot re- cover more by showing that his services were worth more.' And even if he shows that the case was deemed, with good reason, a desper- ate one, this will not sustain his claim for an excessive compensation, as, half the sum re- covered. 1 " If, during the suit, an attorney makes a contract with his client, which is void for champerty, he may still recover a proper compensation for services rendered before the illegal bargain. 8 An attorney cannot maintain an action for compensation for services, merely by proof that the services were rendered ; but must go further and show that they were re- quested, or, in other words, that he was re- tained as an attorney or counsel.* And he cannot recover his bill against his client, if his client has received no benefit whatever from his services by reason of his want of care and skill. An attorney is, in general, personally liable on an agreement made by him, in feis own name, although only personally concerned in the matter. T And where employed in the usual way to conduct a suit, he has, in general, no authority to enter into a compromise with- out the sanction of his client, express or implied. The qualifications requisite to enable a person to practise law in the various courts ing to that of an attorney in a court of law ; Maugha Ch. i, i. K-i) Wheat. 829. h-4 Burr. 2060 : 3 Camp. 17-19 ; 7 C. & P. 289 ; 6 Bing. 460; 2 Bing. N. C. 625 ; 16 S. & R. 368; 15 Mass. 316; 15 Pick. 440; 2 Cush. 316 ; 12 E. L. & E. 403 ; 28 Id. 424 ; 5 H. & N. 890. i-4 B. & Ad. 424 ; i Nev. & M. 262 ; 9" M. & W. 569 ; 4 Burr 2060. j-3 B. & C. 738. k-4 Mo. & P. 149, S. C; 6 Bing. 460. 1-3 Bing. N. C. 235; 27 Beav. 140; 3 Met. (Ky.) 51 ; 15 Ind. 50; 15 La. An. 330; n Ohio St. 261 ; 26 111. 225. m-i Jac. 300-303-304 ; 19 Ves. 261 ; 4 Tyr. 78. n-ig Ves. 261 ; 4 Tyr. 78. o-i Sanf. 569. p-Id. q-12 Ala. 790. r- Wright, 485. 8-1 Pick. 415 ; 4 Litt. 417; 6 Monr. 392; 7 B. Mon. 305. t-3 Barb. 64. n-6 Bing. N. C. in : 12 A. & E. 373; 7 Bing. 569; 12 Wend. 517; ii Johns. 547. v-i Cr. & M. 714; i B. Ac C. 160; 3 B. & Aid. 47; i C. & P. 307; 12 N. H. 179' 15 Id. 569. AGENCY. are, in general, prescribed by the General Statutes of each State. A retainer is the act of a client, by which he engages an attorney or counsellor to manage a cause, either by prosecuting it when he is plaintiff, or defending it when he is defendant. The retaining fee is that given to counsel on being consulted, to insure his future services. The effect of a retainer to prosecute or de- fend a suit is to confer on the attorney all the powers exercised by the forms and usages of the courts in which the suit is pending." He may receive payment; 1 may bring a second suit, after being non- suited in the first for want of formal proof ;? may cause a review of the judgment for error ; z may discontinue the suit ; * may restore the action after a nol. pros.;* may claim an appeal, and bind his client in his name for the prosecution of it; may submit the suit to arbitration; 4 may sue out an alias execution ; e may waive ob- jections to evidence, and enter into a stipula- tion for the admission of facts, or conduct of the trial/ and for the release of bail;* may waive the right of appeal, review, notice, and the like, and confess judgment. 11 But he has no authority to execute a discharge of a debtor, but upon the actual payment of the full amount of the debt, 1 and that in money only;J nor to release sureties; 11 nor to enter a re- traxit /' nor to act for the legal representatives of his deceased client ; m nor to release a wit- ness." There is an implied contract on the part of an attorney who has been retained, that he will use due diligence in the course of legal proceedings, but it is not an undertaking tc recover a judgment. An atcorney is bound to act with' the most scrupulous honor; he ought to disclose to his client if he has any adverse retainer, which may affect his judgment or his client's interest ; but the concealment of the fact does not necessarily imply fraud.? ATTORNEY'S FORMS Appointment of Attorney at Law- General Form. I, A. B., hereby constitute A. Y., attorney at law, of , my attorney in all causes, real, per- sonal, or mixed, for or against me, in my name to appear, plead, and pursue the same to final effect, with power of substitution. Witness my hand, the day of , A. D. . A. B. Appointment of Attorney at Law- General Form. I hereby authorize and empower A. Y., my at- torney at law, to appear in my behalf, and as my said attorney represent my entire interests in any action, suit, or legal proceeding (and especially, tta.tr the particular cause) in any wise affecting the same, with ower of substitution. (Signed) A. B. W-2 M'Cord, 409 ; 13 Met. (Mass.) 320. X-I3 Mass. 320; 4 Conn. 517; i Me. 257; 39 Id. 386; i Wash. C. C. to ; 8 Pet. 18. y-12 Johns. 315. z-i6 Mass. 74. a-6 Cow. 38s. b-i Binn. 469. -i Pick. 462. d-i Dall. 164 ; 1 6 Mass. 396; 8 Rich. 468 ; 6 McLean, C. C. 190; 7 Cranch, 436. 0-2 N. H. 376 : see 9 Met. (Mass.) 423. f-2 N. H. 520. ff-i Murphy, 146. h-5 N. H. 393; 4 Monr. 377; 5 Pet. 99. i-8 Dow'. 656; 8 Johns. 361 ; 10 Id. 220; 10 Vt. 471 ; 32 Me. no; 36 Id. 496; 21 Conn. 345; 3 Md. Ch. Dec. 392; 14 Penn. St. 87; 13 Ark. Appointment of Attorney at Law. By defendant. I, C. D.. of , do hereby appoint, constitute, and make A. Y., Esq., of , my lawful and suf- ficient attorney at law, and in fact, to appear for me in a certain action (suit, or legal proceeding!, wherein A. B. is plaintiff, and C. D. defendant, pending in the court of , and use all law- ful ways and means in my defence, and in my name, therein, as maybe requisite and necessary in the premises, and as fully as if I were person- ally present in said court. Hereby ratifying whatsoever my said attorney may lawfully do in the premises. Witness my hand, this day of , A. D. C. D. Appointment of Attorney at Law. By plaintiff to commence action. I, A. B., of , do hereby appoint, constitute, and make A. Y., of , my lawful and sufficient attorney, in law and in fact, to institute for me, and in my name, an action (or suit, or legal pro- ceeding), in any court having jurisdiction, against C. D., for (or upon, etc., stating the cause, object, matter, or thing in dispute), and the same conduct to trial, judgment, and execution in as speedy a manner as said A. Y. reasonably can, and to use all lawful ways and means, in my name therein, as fully as though I were personally present in said court. (Signed) A. B. Appointment of Attorney at I, aw. To conduct a suit already pending. I, A. B., of , do hereby appoint, constitute, and make A. Y. my lawful and sufficient attorney in law, and in fact, to appear for me in a certain action (suit, or legal proceeding) now commenced and pending in the court of , wherein I am plaintiff, and C. D. is defendant, and conduct the prosecution of^the same by all lawful ways and means, in my name, in as full and effectual a manner as if I were personally present in said court. Hereby confirming and sanctioning what- soever my said attorney shall lawfully do in the premises. Witness my hand, this day of , A. D. . A. B. A warrant of attorney is an instrument of writing, addressed to one or more attorneys therein named, authorizing them, generally, to appear in any court, or some specified court, on behalf of the person giving it, and to confess judgment in favor of some particular person named therein, in an action at law. It usually contains stipulations not to interpose any pro- ceeding in error, or any matter in equity so as to delay the person in whose favor the judg- ment is sought. A warrant of attorney is given to the credi- tor as a security; having it in his possession, he may sign judgment and have execution issued without the formality of an action at law.i A warrant of attorney given to confess judgment is not revocable, in general, and not- withstanding a revocation, judgment may be entered upon it. r The death of the debto^ however, generally operates as an effectual revocation. So, also, the death of the constii- uent operates as a revocation, and where a warrant has been executed by two, it is vacated 644; i Pick. 347. f-i6 111. 272; i Iowa, 360; see 6 Barb. 201. lt-3 J. J. Marsh. 532 ; 4 McLean, C. C. 87. 1-3 Blackf. 137. m-2 Penning. 689. n-2 Greenl. Ev. g 141 ; 6 Barb. 392 ; see 3 Met. (Mass.) 413 ; 29 N. H. 170; 13 N. Y. 377; 36 Me. 739; 3 Ohio St. 528; 12 Mo. 76; 25 Penn. St. 264. o-Wrignt.446 ; see 3 Campb. 17 7 C. & P. 289 ; 2 Bingh. 625 ; 16 S. & R. 368 ; 2 Cush. 316. p-3 Mas. C. C. 305; 2 Greenl. Ev. fi39. J-Se 14 East. 576 ; 2 T. R. ioo ; i H. Bl. 75 ; i Str. 20 ; 2 W. Bl. 1133; 2 Wils. 3; i Chitty Bailm. 707. r-2 Ld Raym. 766, 850; i Salk. 87; 7 Mod. 93; a Etp. 563. AGENCY. by the death of one of them ; but such war- rant, given by two, being merely ministerial, may be executed in the name of the survivor. 1 In case of the constituent's death, courts will, however, allow judgments to be entered as of a term prior to the death of a constituent." A warrant of attorney to confess judgment exe- cuted by an unmarried woman is revoked by her marriage in the absence of statutory pro- visions to the contrary ; but if executed by an unmarried woman the courts will allow judg- ment to be entered up in the name of the hus- band and wife.* The virtue of a warrant of attorney is spent by the entry of the one judg- ment; a second judgment entered upon the same warrant of attorney is irregular, 1 " and cannot lawfully be enforced. The general authority given by the warrant of attorney is usually qualified and restricted by a bond which commonly accompanies it, together with the conditions of defeasance, stating the terms upon which it was given and restraining the creditor from making immediate use of it. Great frauds are often committed under color of bonds and warrants of attorney; in many of the States they are absolutely prohibited on ex- perience of the abuse made of them. They can be tolerated only with a liberal exercise of dis- cretion by the court in inquiring into them.* A warrant of attorney to confess judgment should contain not only a grant of authority, expressed clearly and intelligibly, but a designa- tion, by name or description, of the person who is to execute it. It must be subscribed by the defendant, but no formality is necessary J WARRANT OF ATTORNEY FORMS. Bond and Warrant of Attorney. Know all men by these presents: That C. D. (of ) is bound unto A. B. (of ) in the sum of dollars. The condition of said obligation is: That if the above-bound C. D., his heirs or legal representatives, or any of them, shall pay or cause to be paid unto said A. B., his heirs, as- signs, or legal representatives the sum of dollars (for, or on account of, state what), without fraud or further delay, then said obligation shall be void, otherwise to remain in full force. And further, that A. A., or any other attorney of any court of record in the State f , is here- by empowered to appear for said C. D. in any action or suit brought or entered in such court, and after (complaint, or declaration, or petition, as the case may be), filed therein, and without the issuing or service of process, to confess judgment against said C. D. for said sum of , with in- terest (at the rate of per cent, perannum, from the day of unto ), to release all errors, waive all right to appeal (but with a stay of execu- tion unto the day of ). Executed and delivered f (Signed) C. D. in the presence of . J Warrant of Attorney General Form. To A. Y., attorney-at-Iaw, of the court, at t-7 Taunt. 453. n-2 Kent Comm. 646, 647; 9 Wend. 4^2; 8 Wheat. 174; see also 2 Ld. Raym. 766, 849; where the proceeding is discussed; 7 Mod. 9- 3 Str 108; i Vent. 310; i Salk. 87 . 3 Id. 116. v-iSalk. ;i 7 ; i P. A. Browne, 253 ; 3 Marring. 411. w-i Penn. 245 ; 6 S. & R. 296 : 14 Id. 170 ; Addis. 267 : 2 Browne 321 3 Wash. C. C. 558. x-i Troubat & Haly Pr. Pt. i, *5- y-5 Taunt. 264 ; 6 Harr. 86 ; s-je 3 Pa. 72. z-The judgment docket must particularly state and set forth the names of the parties ; 7 W. & S. 406; 3 Harr. 181. , in , in the State of , or o any othet attorney of said court, or of any other court of record, there or elsewhere. Whereas, C. D., by a certain obligation of the same date herewith is bound unto A. B. in the sum of dollars: Therefore, you, or any of you, are hereby authorized to appear in behalf of said C. D., his heirs, or legal representatives, in any of said courts, in any suit brought by said A. B., his heirs, assigns, or legal representatives, on said obligation without the issuing or service of pro- cess, and confess judgment thereupon against said C. D., his heirs or legal representatives, for the sum of dollars, interest and costs of suit in any manner or form, as you shall deem proper. And said C. D., for himself, his heirs and lega\ representatives, does hereby release and waive all errors, mis-entries, defects, and imperfections whatever in the entry of said judgment, or any process or proceedings connected therewith, or anywise touching or concerning the same. In witness whereof, I have hereunto set my hand (and seal) this day of , A. D. . (Witnesses) W. T., N. S. (Signed) C. D. Judgment Confessed on Warrant. Title of action, etc. 1 Date . Said A. B.,by A. Y., his attorney, files his (complaint, or declaration, or petition, as the case may be), against said C. D. (for dollars due for or on account of state -what), and thereupon A. A. , one of the attorneys of this court, appeared (in open court) in behalf of said C. D., and by virtue of a warrant of attorney, executed for that pur- pose, produced and duly proved the same to said court, waived the issuing and service of process, and confessed that said C. D. owes said A. B. ( dollars of) said sum of dollars, as stated in said A. B.'s (complaint, or declaration, or petition, as the case may be) herein. It is therefore considered and adjudged that said A. B. do recover of said C. D. said sum of dollars confessed due, together with his costs, herein taxed at dollars and cents, with a release of all errors and right of appeal, by virtue of said warrant of attorney. Auctioneers are those who sell or conduct the sale of goods, merchandise and real prop- erty, by public sale to the highest bidder." They are generally licensed for this purpose by public authority. An auctioneer is the agent of the seller,* and of the buyer for some purposes. He has a special property in the goods, and may bring an action for the price. d He has a lien upon them for the charges of the sale, his commis- sion, and the auction duty. 6 He must obtain the best price he fairly can, and is responsible for damages arising from a failure to pursue the regular course of business, or from a want of skill ; f and where he sells goods as the property of one not the owner, is liable for their value to the real owner.s See AUCTIONS, SALES. Bailees are persons to whom personal property is delivered for some specific purpose; as, to be carried from one place to another, to be cared for and kept in good condition, to be manufactured, to be held as security, and the a-5 Mass. 505 ; 19 Pick. 484. b-3 T. R. 148 ; 2 Rich. 464 ; i Parsons Contr. 418. c-4 Ad. & E. 792 ; 7 East. 558 : 2 Taunt. 38 ; 3 Ves. & B. 57 ; 4 Johns. Ch. 659 ; 16 Wend. 28 ; 4 Me. i, 258 ; 6 Leigh. 16 ; 2 Kent Comm. 539^ d-i H.B1. 81; 7 Taunt. 237; 19 Ark. 566; 58. & R. 19: i Riley, 787; 16 Johns, i; i E. D. Smith 590 : see 5 Mees. & W. 645 ; 3 Carr. Ad. 568. e;i5 Mo. 184 ; 2 Kent Comm. 536. f-3 B & Aid. 616 ; Cowp. 395 ; 2 Wils. 325. g-j Taunt. 237 , 5 Esp. 103 ; 20 Wend. 21 ; 22 Id 285 ; 5 Mo. 323. And e 2 Hairing. (Del.) 179. AGENCY. like ; and after the object or purpose of such delivery is accomplished, to return the property as agreed. See BAILMENTS. Brokers are those engaged for others to make and conclude bargains for them, for a fee or commission. Those who are engaged for others in the negotiation of contracts relative to property, the custody of which they have no concern. h There are several classes of brokers. See FACTORS, below. A broker is for many purposes the agent of hoth parties. He is in the first place deemed only the agent of his original employer, and becomes the agent of the other when the bargain or contract has been definitely settled in its terms between the principals. 1 EXCHANGE BROKERS negotiate bills of ex- change, domestic and foreign, and other securi- ties, make and conclude bargains for others, in matters of money, securities and merchandise, learn the rates of exchange and notify their employers of the same. Their business some- times includes the purchase and sale of under- current currency, gold and silver, as well as drafts and checks drawn or payable in other cities. This is at their own risk and for their individual profit, and is not, therefore, included in the business of brokerage. Exchange and merchandise brokers negoti- ate the sale of merchandise without having r ossession or control of it, as factors or com- mission merchants do. INSURANCE BROKERS or agents, see Stock Brokers, procure fire, life and marine insurance, and negotiate between insurers and insured. NOTE BROKERS negotiate the purchase and sale of bills of exchange, negotiable bonds and promissory notes, for which they are paid a percentage or commission by the seller, whose name it is not their custom to disclose. There is an implied warranty that what they sell is what they represent it to be ; and should a bill, bond or note sold by them turn out to be a for- gery, they are responsible. But by showing a payment over to their principals, or other special circumstances attending the transaction, which exonerates them in the premises, they will be discharged. J PAWN BROKERS make it their business to lend money upon property deposited with them in pledge, at usurious rates of interest, being licenced therefor, and exempted from the ope- ration of usury laws. See BAILMENTS; PAWN BROKERS. REAL ESTATE BROKERS or agents negotiate the purchaseand saleof real estate, procure loans on mortgage security, collect rents, lease houses and lands, draw conveyances, and furnish ab- stracts of title to property. See CONVEYANCING. SHIP BROKERS negotiate the purchase and sale of ships and freighting vessels. Like other brokers they receive a percentage or commission from the seller or freighter. STOCK BROKERS are those employed to buy and sell shares of stock, whether of the public h-Paley Ag. 13 : see Com. Dig. Merck. 6 ; i-Paley Ag. 171, n. p. ; i Younge J. Exch. 387 ; 13 Met. Mass. funds, of banks or other corporations. In the larger cities stock brokers are associated to- gether under a corporate name, as " Board of Brokers," " Merchants' Exchange," " Board of Trade," and the like. These associations are governed by rules and regulations made by themselves, to which each member is subject. Membership is procured by ballot or vote. A member defaulting in his obligations is ex pelled and forfeits his seat. A regular register or record of all the transactions of the body is kept by an officer of the association. Ques- tions and disputes between members are settled by an arbitration committee. The stocks dealt in at the sessions of the board are those placed on the list by a regular vote of the association, after the same has been examined into by a committee for that purpose. The official re- cord of sales is the best evidence of the price of any stock JH a particular day. k BROKERS' FORMS. An Order to Buy (or Sell) Stock. Date . B., R. and S., Stock Brokers. Please (buy or sell) for my (or our) account and risk (giving the number} shares {giving the names or descriptions of stocks}. This order good until countermanded. A. B. Broker's Receipt for Money for Stock. $ Date . Received of A. B. dollars, for shares stock. To be transferred to . B., R. and S. Broker's Statement of Account, etc. Date . B., R. and S., Stock Brokers, etc. Bought for A. B. : loo shares New York Central R. R., at $20, . $2,000 oo " Pennsylvania R. R., 31820, - . 2,000 oo Commission, I2j, - - - - 25 oo Received payment, $4,025 oo B., R. and S. Carriers are those who undertake to carry property or passengers from one place to an- other. See BAILMENTS. Clerks are assistants in a shop or store, who sell goods, keep accounts, etc. ; those who are employed in the use of the pen in an office, public or private, in keeping records and ac- counts. A clerk is always a subordinate. He differs from a factor in this, that the latter wholly supplies the place of his principal in respect to the property consigned to him, 1 while a clerk attends to only a part of the business, while his employer superintends the whole. Consignees are the persons to whom goods or other things are delivered in trust, for sale or superintendence ; called also factors. The goods or property sent is called the consign- ment. When the goods consigned to them are their own, and they have been ordered to be sent, they are at his risk the moment the consign- ment is made, according to the consignee's direction ; and the persons employed in their transmission are his agents. m When the goods are not the consignee's, if. he accept the con- 463. |-Edw. Bills, 201; 4 Duer, 70. k-Sewell, Bankr. 1-Pardesses Droit Com. n. 38 ; i Chitty Pr. 80 ; 2 BOUT> Inst. n. 1287. 111-1 Liverm. Ag. 9. AGENCY. lignment he is bound to pursue the instructions of the consignor ; as, if the goods be consigned upon condition that he will accept the con- signor's bills when drawn upon him he is bound lo accept them when presented," or if he is di- rected to insure he must do so. Factors or Commission Merchants P are agents employed to sell goods or merchandise consigned or delivered to them, by or for their principals fora compensation commonly called factorage or commission."! Where the agent accompanies the ship, taking a cargo aboard, and it is consigned to him for sale, and he is to purchase a return cargo out of the proceeds, such agent is prop- erly called a factor; he is, however, usually known by the name of a supercargo. 1 " A fac- tor differs from a broker in some important particulars, viz.: He may buy and sell for his principal in his own name as well as in the name of his principal ; on the contrary, a broker acting as such should buy and sell in the name of his principal. 8 Again, a factor is intrusted with the possession, management, dis- posal, and control of the goods to be bought and sold, and has a special property and a lien on them ; the broker, on the contrary, has usually no such possession, management, con- trol, or disposal of the goods, nor any other special property or lien.* A domestic factor or commission merchant is one who resides in the same country with his principal. By the usages of trade, or in- tendment of law, when domestic factors are employed in the ordinary business of buying and selling goods, it is presumed that a recipro- cal credit between the principal and the agent and third persons has been given ; when a pur- chase has been made by such a factor, he, as well as his principal, is deemed liable for the debt; and in case of a sale the buyer is re- sponsible both to the factor and principal for the purchase money ; but this presumption may l>e rebutted by proof of exclusive credit." A foreign factor or commission merchant is line who resides in a different country from his principal. Foreign factors are held personally 1 'Me upon all contracts made by them fortheir rmployers, whether they describe themselves in ihs contract as agents or not. In such cases the presumption is that the credit is given exclu- sively to the factor. But this presumption may be rebutted by proof of a contrary agreement. T A factor or commission merchant is required to use reasonable skill and ordinary diligence in his vocation." He is bound to obey his in- il-i Liverm. Ag. 139. o-Id. 325. p-See generally i Parsons Contr. 80; 2 Kent Comm. 629, et. sey.; Story 2 Kent Com. (3 Ed.) 622, note d: i Bell. Comm 305, 11 408, 409; a B & Aid. 143. ir-Beawes Lex. Merc 14, 47; Liverm. Ag. 69, 70; i Domat b. i t. 16, JS 3, trt. 2. *-3 Chitty C. L. 193, 210, 541 ; 2 B. & Aid. 143, 48 ; 3 Kent. Comm. Csd Ed.) 622, note d; t- Paley Ag. } (Lloyd's Ed.); i Bell Comm. 385. a-Story Ag. '$ '.f>7, 291, 293 ; 9 B. & C. 78; 15 East. 62. v-Story Ag ? 68 ; Paley Ag. 248, 273 ; B. N. P. 130; Smith Merc. ! <6; 2 Liverm. Ag. 249; i B. & P. 398; 15 East. 6a, structions ; * but when he has none he may and ought to act according to the general usages cf trade * to sell for cash when that is usual, or to give credit on sales when that is customary. He is bound to render a just account to his principal, and to pay him the moneys he may receive from him. He has the right to sell goods in his own name; and when untrammeled by instruction, he may sell them at such times, and for such prices, as, in the exercise of a just discretion, he may think best for his employer. 1 He is, for many purposes, between himself and third persons, to be considered as the owner of the goods. He may, therefore, recover the price of the goods sold by him in his own name, and, consequently, he may receive payment, and give receipts, and discharge the debtor, unless, indeed, r.otice has been given by the principal to the debtor not to pay. He has a lien on the goods for advances made by him, and for his commissions. He has no right to barter the goods of his principal, nor to pledge them for the purpose of raising money for himself, or to secure a debt he may owe ; a but he may pledge them for advances made to his principal, or for the purpose of raising money for him, or in order to reimburse himself to the amount of his own lien. b Another excep- tion to the rule that a factor cannot pledge the goods of his principal is, that he may raise money by pledging the goods for the payment of duties, or any other charge or purpose al- lowed or justified by the usages of trade. It is a general rule that when property re- mitted by the principal, or acquired from him by his order, is found distinguishable in the hands of the factor or merchant, capable of being traced by a clear and connected chain of identity, in no case the link of it degenera- ting from a specific trust into a general debt, the creditors of the factor who has become bankrupt have no right to the specific property,* even when it is money in the creditors' hands; 8 but the rights of third persons dealing bona fide with the factor or commission merchant as a principal, where the name of the principal is sunk entirely, are to be protected. f See GEN- ERAL STATUTES. Forwarding Merchants are those who re- ceive and forward goods, taking upon them- selves the expenses of the transportation, for which he receives a compensation. He has no concern in the cars or vessels in which they are transported, and no interest in the freight. See BAILMENTS. q Barn. & C. 78. W-i Ventr 121. x-3 N. Y. 62: 14 Pet. 479 ; 5 C. B. 895. y-i4 Pet. 479 : 7 Taunt. 164 ; 5 Day, 566; 3 Caines, 226; Story C. C. 43. Z-3 C. B. 380. a-5 Cush. in ; 2 Mass. 398 ; 13 Id. 178 ; i M'Cord, i ; i Mass C. C. 440; 5 Johns. 429 ; see 3 Denio, 472 ; 13 Eng. L. & Eq. 261 fo-2 Kent Comm. ($A Ed.) 625- 628; 4 Johns. 103; 7 East. 5: Story Bailm. $ 325-327 0-2 Gall. C. C. 13: 6 S. & R. 386; Paley Ag. 217: 3 Esp. 282. d-Cook Bank. L 400; 2 Str. 1182; 3 Maule & S. 562. e-2 Burr. 1369; 5 Ves. Ch. 169 : 5 T. R 277 : 14 N. H. 38 ; 2 Dall. 60 : 2 Pick. 86 ; 5 Id. 7 ; and see Willes, 400 ; i Bos. & P. 539, 648 : for the rule as ta promissory notes, f-/ T. R. 360 : 3 Bmgh. 139 ; 6 M & S. 14. AGENCY. Masters of Ships are commanders or first officers of merchant ships ; captains. The master of an American ship must be a citizen of the United States ;* a similar require- ment exists in most maritime states. In some countries their qualifications and skill must be attested by examination by proper authorities ; in the United States the civil responsibility of the owners for their acts is deemed sufficient. A vessel sailing without a competent master 's deemed unseaworthy, and the owners are liable for any loss of cargo which may occur, bul cannot recover on a policy of insurance in case of disaster. 11 The master is selected by the owners, and, in case of his death or disa- bility during the voyage, the mate succeeds. If he also dies in a foreign country, the con- signee of the vessel, or the consul of the nation, may, in case of necessity, and in the absence of other authority, appoint a master. The master himself may, in similar circum- stances of necessity and distance from the owners, appoint a substitute. 1 During the temporary absence of the master the mate suc- ceeds.J See CHARTER PARTIES, CONTRACTS, MARITIME LAW. Partners. It may be stated, as a general principle which governs all partnerships in trade, that each individual partner constitutes the others his agents for the purpose of entering into all contracts for him within the scope of the partnership conce, and, consequently, that he is liable to the performance of all such contracts in the same manner as if entered into personally by himself. k In truth, the law of partnership is a branch of the law of principal and agent. If two agree that they should carry on a trade and share the profits of it, each is a principal and each is an agent for the other, and each is bound by the other's contracts in carrying on the trade as much as a single [principal would be by the act of an agent who 'ivas to give the whole of the profits to his em- ployer. See PARTNERSHIP. Principals are those who, being legally competent to do any act for their own benefit, or on their own account, confides it to another person to do it for them. 1 The word principal is used in opposition to agent, and in this sense it signifies that the principal is the prime mover. It is also used in opposition to the word surety ; thus we say, the principal is answerable before the surety. Every one of full age, and not otherwise dis- abled, is capable of being a principal; for it is a rule that whenever a person has power, as owner, or in his own right, to do a thing, he may do it by another. Infants are generally incapable of appointing an agent; but under g-i U. S. Stat. at L. 287. h-2i How. 7, 23 ; 6 Cow. 270; 12 Johns. 128, 136; 21 N. Y. 378. l-i Parsons Marit. L. 387 ; 2 Sumn. C. C. 206; 13 Pet. 387. J-2 Sumn. C. C. 588 ; K-6 Bingh. 792 ; Story Partn. i ; 20 Miss. 122; 10 N. H. 16; Collyer Partn. j) 195; Poth. Partn. C. 5. n. 90 ; 4 Exch. 623, 630. l-i Domat. b. i. tit. 15, Introd.; Story Ag. g 2. m-Com. Dig. Atty. (C. i ) Hemeccius ad pand. p. i, i, 3, tit. i, ? 424; 9 Co. 75 6: Story Ag. ? 6. n-2 Kent Comra. 833-243 : 9 Co. 15.76; 3 Burr. 1804; 6 Cow. 393; 10 Ohio, 37; 10 Pt. special circumstances they may make such appointments. For instance, an infant may authorize another to do any act which is bene- ficial to him, but not to do an act which is tc his prejudice. 11 Idiots, lunatics, and other per- sons not legally competent, are wholly incap- able of appointing an agent. THEIR LIABILITIES to agents are : i. To re- imburse him all his advances, expenses, and disbursements lawfully incurred about the agency, and also to pay him interest upon such advances and disbursements whenever interest may fairly be presumed to have been stipulated for or to be due to the agent. P 2. To pay him his commissions as agreed upon, or according to the usage of trade, except in cases of gratui- tous agency.i 3. To indemnify the agent when, without his own default, he has sus- tained damages in following the directions of his principal. For example, when the agent has innocently sold the goods of a third person under the direction or authority of his princi- pal, and a third person recovers damages against the agent, the latter will be entitled to reimbursement from the principal. 1 " to third persons. The principal is bound to fulfil all the engagements made by the agent for or in the name of the principal, and which come within the scope of his usual employment, although the agent in the particu- lar instance has in fact exceeded or violated his private instructions. 8 And where an ex- clusive credit is not given to the agent, the principal is liable to third persons upon con- tracts made by his agent within the scope of his authority, although the agent contracts in his own name and does not disclose his agency.' But if the principal and agent are both known, and exclusive credit be given to the latter, the principal will not be liable though the agent should subsequently become insolvent." Where money is paid by a third person to the agent by mistake, or upon a consideration that has failed, the principal will be liable to repay it, although he may never have received it from his agent. T A principal is affected by notice to his agent respecting any matter distinctly within the scope of his agency, when the notice is given before the transaction begins, or before it is so far completed as to render the notice nugatory." The notice to the agent may be implied as well as express : knowledge obtained by the agent in the course of that very transaction is notice. Notice to a servant of the principal, or one em- ployed by the principal, affects the principal only when given about the very thing the ser- vant is employed to do. Notice to a corpora- tion binds it only when made to an officer, 58, 69 ; 14 Mass. 463. o-Story Ag. ? 6. n-Story Ag. I? 335, 336, 338; Story Bailm. 196, 197; Paley Ag. 107, 108. q-Story Ag. ? 324 ; Paley Ag. 100-107. r-Story Ag. 339; 9 Met. (Mass.) 218. S-Story Ag. 443 : Smith Merc. L. 56, 59 ; 4 Watts. 222 : 21 Vt. 129 ; 26 Me. 84): i Wash. C. C. 174. t-Story Ag. 446. U-Id. 447. \- Story Ag. % 451 ; Paley Ag. 293 : 2-East. 509. w-2 Hil! (N. Y.) 451 : i Hill (N. Y.) 567 ; S. C. 7 Hill, 427 . i Barb. Ch. 287; 3 P. Wms. 307; 2 Atkins, 630; i Id 384 ; i Ch. Cas. 34 ; 8 Ala. 519. AGENCY. whose situation and relation to the corporation imply that he has authority to act for the cor- poration in the particular matter in regard to which the notice is given. x liabilities for unlawful or wrongful acts ef agents. The principal is not, in general, liable to a criminal prosecution for the acts or misdeeds of his agent, unless he has authorized or co-operated in such acts or misdeeds.? He is, however, civilly liable to third persons for the misfeasance, negligence, or omission of duty of his agent in the course of the agency, although he did not authorize or know of such misconduct, or even although he forbade it. z And he is liable for the injuries and wrongs of sub-agents who are retained by his direction, either express or implied.* But the responsi- bility of the principal for the negligence or unlawful acts of his agent is limited to cases properly within the scope of the agency. A principal is not liable for the wilful acts of his agent whereby damage is occasioned to another, unless he originally commanded, or subsequently assented to the act. b A principal is liable for the fraud or miscon- duct of his agent, so far, that on the one hand he cannot take any benefit from any misrepre- sentation fraudulently made by his agent, al- though the principal was ignorant and innocent of the fraud ; and on the other hand, if a party dealing with an agent suffer from such fraud, the principal is bound to make him com- pensation for the injury so sustained ; d and this, although the principal be innocent, 6 provided the agent acted in the matter as his agent, and distinctly within the line of business intrusted to him. f In contracts made without mentioning the name of the principal, the principal may avail himself of the agreement; for the con- tract will be treated as that of the principal as well as of the agent. If, however, the person with whom the contract was made was bona fide dealt with the agent as owner, he will be entitled to set off any claim he may have against the agent in answer to the demand of the principal ; and the principal's right to en- force contracts entered into by his agent is affected by every species of fraud, mis- representation, or concealment of the agent which would defeat it if proceeding from him- self.* When goods are intrusted to an agent for a specific purpose, a delivery by him for a different purpose, or in a manner not authorized by the commission, passes no property in them x-3 C. B. 16: 19 Vt. 410-425; 4 Paige, 127; i Hill (N. Y. ) 575: 3 Comst. 156-166; i Met. 308; Story Ag. $ 140 a. 140 b. y-Story Ag. g 452 ; Paley Ag. 303 ; i M. & M. 433. z-Story Ag. % 452 ; Paley Ag. 294, 307 ; Smith Merc L. 70, 71 ; 26 Vt. 112, 123 ; 6 Gill & J. 291 : 20 Barb. 507; 7 Cush. 385. a-Story Ag. ? 454; Paley Ag. 296 ; i Bos. & P. 409. b-Paley Ag. 298, 299 ; Story Ag. ? 456; 9 Wend. 268; 23 Pick. 25 ; 20 Conn. 284. c- 12 M. & W. 520; i T. R. 12; 2 Stra. 1183 ; 21 Vt. 129, 6 Cl. & F. 448 ; 8 C. & P. 316 ; i Hill, 317 ; 8 How. 134: 3 Story, 611. cl-i Salk. 289; i Campb. 124; 3 Strobh. Eq. 263; 8 Texas, 6 e-7 Bing. 543; 4 T. R. 39-66 i Campb. 530 ; 20 E. L. & E. 285 ; 20 Barb. 493. and they may, therefore, be reclaimed by the owner. h Where the principal gives notice to tht debtor not to pay money to the agent, unless the agent has a superior right from a lien or other- wise, the amount of any payment afterward made to the agent may be recovered by the principal from the debtor.' Money paid by an agent may also be recov- ered by the principal under any of the follow- ing circumstances : i. Where the consideration fails. 2. Where money is paid by an agerrt. through mistake. 3. Where money is illegally extorted from an agent in the course of his em- ployment. 4. Where the money of the princi- pal has been fraudulently applied by the agent to an illegal and prohibited purposed RIGHTS of action under a contract made by an agent. In contracts by deed no party can have a right of action under them but the party whose name is to them ; k but in the case of a simple contract an undisclosed principal may show that the apparent party was his agent, and may put himself in the place of his agent; 1 but not so as to affect injuriously the rights of the other party. When the name of the principal is disclosed at the time of the contract is made by the agent, the former is the proper party to sue upon the contract. Against third persons. In general, the principal, as against third persons, has a right to all the advantages and benefits of the acts and contracts of his agent, and is entitled to the same remedies against such third persons in respect to such acts and contracts as if they were made or done with him personally." But to this rule there are the following exceptions : 1. When the instrument is under seal, and it has been exclusively made between the agent and the third person ; as, for example, a char- ter party or bottomry bond made by the master of a ship in the course of his employment. In this case the principal cannot sue or be sued on it. 2. When an exclusive credit is given to and by the agent, and therefore the principal cannot be considered in any manner a party to the contract, although he may have authorized it and be entitled to all the benefits arising from it. The case of a foreign factor buying or sell- ing goods is an example of this kind. He is treated, as between himself and the other party, as the sole contractor, and the real principal cannot sue or be sued on the contract. This is a general rule of commercial law, founded upon the known usage of trade, and it is strictly f-5 Esp. 135 ; 3 M. & W. 505 : 2 Cr. & M. 392. e-Story Ag. $! 420, 421, 440; 2 Kent Comm 632; Paley Ag. 324, 325; 3 Bos. & P. 490: 7 T. R. 359, 360, note; z Caines, 299 ; 24 Wend. 458 ; 3 Hill (N. Y.) 72. h-Paley Ag. 34, 34i : 3 Pick. 495. i-Story Ag ? 429 : 15 East. 65; 4 Campb 60; 6 Cow. 181, 186. j-Paley Ag. 335, 337. k-i Salk. 197 ; 2 L. Rav. 1418. 1-4 B. & Aid. 437; 10 B. & C 671 ; i Campb. 337; 4 B & C 664: n Mass. 80; 24 Vt. 33; 8 M. & W.~834; 12 Id 808 m- 7 T. R. 359 : 5 B- & Ad. 389 ; i M. & W. 591 ; 7 Cush 371 ; 10 B. Mon. 349 ; 15 M. & W. 231. it-Story Ag. I? 418, 420 ; Paley Ag. 523 ; 8 La. ^96 ; 2 Stark. 443 o-Story Ag. g 422; Abbott Ship Pt. 3. Cb. I, # ; < Wend. 285; i Paine C. C. 258 : 3 Wash. C. C. 560 88 AGENCY. adhered to for the safety and convenience of foreign commerce. P 3. When the agent has a lien or claim upon the property bought or sold, or upon its pro- ceeds, which is equal to or exceeds the amount of its value, the principal cannot sue without the consent of the agent.i Third persons are liable to the princi- pal/or any tort or injury done to his property >r rights in the course of the agency. If both the agent and third person have been parties to i he tort or injury, they are jointly as well as sev- erally liable to the principal, and he may main- tain an action against both or either of them/ The rights and powers of principals arise from obligations due to them by their agents or third parties. Those in relation to their agents are : 1. To call them to an account at all times in relation to the business of the agency. 8 2. When the agent violates his obligations to his principal, either by exceeding his author- ity, or by positive misconduct, or by mere neg- ligence or omissions in the discharge of the functions of his agency, or in any other man- ner, and any loss or damage falls on his princi- pal, the latter will be entitled to full indemnity. 1 But the loss or damage must be actual, and not merely probable or possible." 3. Where both the principal and agent may maintain a suit against a third person for any matter relating to the agency, the principal has a right to supersede the agent by suing in his own name ; and he may by his own intervention intercept, suspend, or extinguish the right of the agent under the contract. T But an excep- tion to this rule arises in favor of the agent to the extent of any lien or other interest or superior right he may have in the property.' Actions against agents to determine the right of a principal. Where money is paid to one as agent, to which another as principal has color of right, the right of the principal can- not be tried in an action brought by the party paying the money, against the agent as for money had and received to the use of such party ; but such action should be brought against the principal. 1 For a party who deals with an agent (acting as such, and within the scope of Ins authority) has, in general, no right to separate him from his principal, and hold him liable in his personal capacity. The agent owes an account of his actions to his principal, and that he may be able to render that account, the law, except under special circumstances, refuses to impose upon him a duty to any third party. Proxies are persons deputed or substituted to act for others or to represent them. A proxy is the agency of another who acts as a substitute p-Story Ag;. \ 423 ; Smith Merc. L. 66; 15 East. 62 ; ., .., . .* , Hare Ch. 366 ; 7 Beav. Rolls. 176. H-Story Ag Paler Ag. 7, 8, 74, 75 ; but see Id. 74, note 2. v-Story At 1 43 : 4 Campb. 194 ; 3 Hill (N. Y.) 72, 73 ; 6 S. & for his principal; appearance of a representa- tive ; agency of a substitute. It is also the instru- ment by which a person is appointed so to act. The right of voting at an election of an in- corporated company is not a general right, and the party claiming it must show a special authority for that purpose. A Ship's Husband is an agent appointed by the owner of a ship, and invested with authority to make repairs and attend to the management and other concerns of the ship. lie is the general agent of the owners of th* ship, and may be appointed orally or in writing. He is usually, but not necessarily, owner of the ship.* See MARITIME LAW. Supercargoes are persons specially em- ployed by the owners of cargoes to take charge of and sell to the best advantage merchandise which has been shipped, and to purchase re- turning cargoes and receive freight as they may be authorized. A supercargo is an officer or person in a merchant's ship whose business it is manage the sales and superintend all the commercial concerns of the voyage. Supercargoes have complete control over the cargo and everything which immediately con- cerns it, unless their authority is either expressly or impliedly restrained. 8 Under certain cir- cumstances they are responsible for the cargo.* A supercargo has no power to interfere with, the government of the ship. b Warehousemen are those who receive goods and merchandise to be stored in their warehouse, for hire. See BAILMENTS. Wharfingers are those who own or keep a wharf for the purpose of receiving and ship- ping merchandise to and from it, for hire. See BAILMENTS. Aggravation. See CRIMINAL LAW ; PLEADING. Aggressor. See CRIMINAL LAW ; PLEADING Agister. See ANIMALS. Agreement. See AGENCY ; CONTRACTS ; INSUR- ANCE. Aid ami Comfort. See CRIMINAL LAW. Aiding and Abetting. See CRIMINAL LAW. Air. See REAL PROPERTY. Alia Enormia. See PLEADING. Alias. See PRACTICE. Alibi. See EVIDENCE; PRACTICE. Alien. See CITIZEN ; ENEMY ; PERSONAL RKLA. TIONS. Alienate. See CONVEYANCES. Alienation. See ESTATES ; MEDICAL LAW. Alimony. See DIVORCE. Alinnde. See EVIDENCE. Allegation. See PLEADING. Allegiance. See CITIZEN. Alliance. See INTERNATIONAL LAW. Allisioii. See MARITIME LAW. Allodium. See REAL PROPERTY. Allonge. See INDORSEMENT. Alloy. See MONET. Alluvium. See REAL PROPERTY. Alms. See PAUPER. Alteration. See CONTRACT. Alternat. See INTERNATIONAL LAW. R. 27 : 2 Wash. C. C. 283 ; 7 Taunt. 237, 243 ; i Maute & S. 576. w -Story Ag. $! 393, 397, 407, 408, 424. x- ii A. & E. 926; 4 Burr. 1984-1986; 8 Taunt. 136; 5 Id. 815; 12 Barb. 456; 7 Johns. 179; 10 Pet. 137: 13 Id. 263; 7Cowen,456; 3 How. 236: Cowp. 565 ; i Id. 204; 3 M. & Set. 344; Merc. Law,-B. i, c. 5. ? 7; 12 M. & W. 588 ; 7 El. & E. 528. y-i Parsons' Maritime Law, 97. z-i2 Ea^. 381. a-4 Mass. 115 ; see i Gill. & J. i D-3 Pardessi*, . 646; i Boulay-Paty Dr. Com. 4*1. ANIMALS. 89 Alternative. See CONTRACTS. Ambassador. See INTERNATIONAL LAW. Ambiguity. See CONSTRUCTION; CONTRACTS. Ambulatory. See WILLS. Amenable. See CRIMINAL LAW. Amendment. See LEGISLATION; PRACTICE. Amends. See TORTS. Amercement. See CRIMINAL LAW; PRACTICE. Amicable Action. See PRACTICE. Amiens t'urise. See PRACTICE. Amnesty. See GOVERNMENTAL LAW. Amotion. See CORPORATIONS; REAL PROPERTY. Amount C'ovcred. See INSURANCE. Amount of Loss. See INSURANCE. Analogy. See ARGUMENT; PRACTICE. Ancestor. See DESCENT ; PERSONAL RELATIONS. Ancient House. See HOUSE ; REAL PROPERTY. Ancient Lights. See LIGHTS; REAL PROPERTY. Ancient Rent. See LANDLORD AND TENANT; RENT. Ancient Writings. See WRITINGS. ANIMALS. See PLEADING; PRACTICE; PROP- ERTY, ETC. ; SALES ; WARRANTY, ETC. ANIMALS are all animated beings endowed with the power of voluntary motion, except those of the human species. They are either domestic or wild, base or valuable. There are animals which, though domestic and reclaimed, are not such that, at common law, a larceny may be committed of them, by reason of the baseness of their nature. Of this class are dogs and cats ; and others, though wild by nature and reclaimed by art and indus- try, as bears, foxes, apes, monkeys, ferrets and the like, fall within this class. A larceny can- not be committed on the young of these animals :n the nest, kennel, or den. d The owner of the land has, however, a qualified property in them by reason of their helplessness. 6 To be the subject of a larceny under the statutes the animal must be the property of another and of value. Animals of a valuable nature are those capable of being a qualified property, such as cattle, poultry, and the like. But see below. Agistry is the taking and feeding of an- other's cattle in the public commons or upon one's own land, for compensation. Those who pursue this occupation are called agisters. They must not put more cattle upon a common or pasture than the herbage will sustain or than they have a right to do ;& if they do they are liable in damages. 11 They are not, like inn- keepers, bound to take all horses (or cattle) offered to them ; but are not liable for any in- jury done to such animals in their care, unless they have been guilty of negligence, or from their ignorance negligence may be inferred. 1 Agisters of cattle have no iien,J in the absence of a statute allowing it. k Beasts are any four-footed animals which may be used for food, labor, or sport, distin- guished from birds, fish, etc. Beasts of the chase and beasts of the forest are all those wild animals which it is lawful to hunt ; among which beside others may be included the bear, wolf, fox, etc. 1 C-Co. 3d Inst 109 ; i Hale PI. Cr. 511, 512 ; i Hawk. PI. Cr. 33736 . i Bl. Comm. 236 ; 2 East. PI. Cr. 614 ; see i Wms. Saund. 84, n. 2. d-Co. 3d. Inst. 109; i Russ. Cr. 153 e-z Bl. Comm. 394. f-Story Bailm. \ 443. g- 3 Sharsw. Bl. Comm. 237; i Roll. Abr. 399. h-2 Id. 238 n. i-Holt. 457. j-Cro. Car. 271. 11-23 Penn. St. 193: see 3 Hill (N. Y.) 485. 1-See Co. Liu. 233 : 2 Sharsw. Bl. Comm. 39. m-3 Binn. 546 ; 13 Miss. 333 ; (ec Inst. 2, i, 14; Dig. 41, i, 5, 2; 7 Johns. 16; 26!. Bees, while unreclaimed, are by nature wild animals. m Those which take up their abode in a tree belong to the owner of the soil, if unre- claimed, but if reclaimed and identified they belong to their former owner." If a swarm has flown from the hive of A. they are his so long as they are in sight, and may easily be taken, otherwise they become the property of the first occupant. Merely finding a tree on the land of another, containing a swarm of bees, and marking it, does not vest the property of the bees in the finder.!* They do not be- come private property until actually hived. ' Cattle, in common usage, signifies only beasts of the bovine genus, as oxen, bulls, cows and their young. In laws respecting do- mestic beasts, horses, sheep, mules, asses and swine are generally distinguished from cattle. Where, however, a law gives damages for a trespass by cattle breaking into an enclosure, this will include horses, etc. Cows are animals of the bovine species that have had a calf, r and under penal statutes which mention Ijoth cows and heifers an improper naming of the one for the other, in an indict- ment, would be fatal.' Cruelty to animals is in many cases an in- dictable offence, and punishable by fine, im- prisonment, or both. The character of the acts which constitute cruelty is in general specified by the statute defining the offence and prescribing the punishment. See GENERAL STATUTES. Dogs are animals of a domestic nature. The owner of a dog has such property in him that he may mdntain an action for an in- jury to him, or to recover him when unlawfully taken away and kept by another. 8 Dogs, if dangerous animals, may lawfully be killed when their ferocity is known to their owner, or in self-defence, 1 but a person attacked cannot lawfully return to kill the animal in re- venge. When a dog is bitten by a rabid animal it may be lawfully killed by any one." When, in consequence of his vicious pro- pensities, a dog becomes a common nuisance, the owner may be indicted ; and where one commits an injury, if the owner had knowl- edge of his mischievous propensity, he is liable for the injury. 7 A man has a right to keep a dog to guard his premises, but not to put him at the entrance of his house, because a person coming there on lawful business may be injured by him, and this, though there may be another entrance to the house. w But if a dog is chained, and a visitor so incautiously go near him that he is bitten, he has no right of action against the owner. x Comm. 392. n-is Wend. 550 ; see i Cow. 243 ; 2 Der. 162. O-Inst. 2,i, 14- l-7 Johns. 16. q-Inst. 2, i, 14 ; 3 Binney, 546. r-2 East. PI. Cr. 616; i Leech Cr. Cas 105. s-i Met. (Mass.) 555. t-io Johns. 365; 13 Id. 312. n-i3 Id. 312. v-B. N. P. 77; 2 Str. 1264; i Ld. Raym. 1 10 ; i B. & Aid. 620 ; 4 Camp. 198 ; 2 Esp. 482 ; 4 Cow. 351 ; 6 S. &R. 36; Addis, 215; 1111.492; 17 4 Der. & B. 146 ; 10 Cush. 509. i-3 Sharws. Bl. Comm. 154. Wend. 496; 23 Id. 354: 4 W-4C. &P- 297; 6 W. i. ANIMALS. Doves are animals of a wild nature. They are also called pigeons. Doves are not the subject of larceny unless they are in the own- er's custody, as, for example, in a dove house ; or in the nest and before they can fly, or other- wise in the actual possession of another.? So also where they are reclaimed and tame, and return to their house or box. z Estray animals are those whose owner is unknown.' Any beast, not wild, found on one's premises, and not owned by the occupant. Proceedings in the taking up of stray ani- mals are ex parte (one-sided by taker up), and governed by the general statutes. A party who wishes to detain property as an stray must show an exact compliance with the law on the subject of taking up estrays, both on his own part and that of the officer before whom the appraisement was made. 6 He must perform all those acts which the law requires to be performed, in order to vest the property of the stray in him, d and that such acts have been performed must affirmatively, and in de- tail, appear on the record. 6 If a man finds stray cattle in his field, he is not bound to impound or retain them for the owner, but may drive them off into the high- way without being liable for a conversion/ But a person who chases a horse out of his field with a large, fierce dog, commits an un- lawful act, and is liable for any injury which the act occasion.* A person who takes an estray to keep for the owner, but does not pursue the course pre- scribed by statute, is not liable to an action, unless he uses the stray h or refuses to deliver it on demand. 1 Riding a horse to discover the owner is not use.J See GENERAL STATUTES. Fish are animals of a wild nature. No one has any property in them until they are cap- tured; and, like other wild animals, if having been taken they escape and regain their lib- erty, the captor loses his property in them. A person has no right to fish in the waters of an- other, and acquires no property in the fish caught except by the owner's consent. See FISHERY; REAL PROPERTY. Game is birds and beasts of a wild nature, obtained by fowling and hunting. k Laws reg- ulating the killing or taking of birds and beasts are in force in the different States and may be con- sulted by reference to the GENERAL STATUTES. Horses are animals of a domestic nature .01 the age of four years and upwards ; l under the age of four years they are called colts. 1 The word horse is used as a generic name for all animals of the horse kind. 10 BORROWING renders the borrower liable for negligence, misuse, gross want of skill in use, y-g Pick. 15. z-2 Denio Cr. Cas. 361 ; see Id. 362, n. ; 4 C. & P. 131. -2 Kent Comm. 359; Spellman Gloss, fo-3 Mo. 302 ; 6 Id. 64. C-3 Mo. 302 ; 13 111. 64; 37 Mo. 119. d-8 Id. 344. e-3 Mo. 302; 6 Id. 64. f-i8 Pick. 277. g-6 Blackf. 258. h-4 Pick. 240; 7 Watts, 557. i-4 Pick. 249. j-7 Watts, 557. fc-Boc. Abr. ; see n Met. Mass. 79. l-i Russ. & R. Cr. Cas. 416. m-3 Brev. 9 ; see Yelv. 67, a. 11-27 L. J. Q. B. 167; see 3 L. T. N. S. 785. o-i Mod. 210, S. C. ; 3 SUt. 971 ; 4 Sandf. 8. p-Story Bailm. 300; 5 Mas*. and fraud. The lender is liable in case the thing lent is unfit or dangerous, and thereby occasions injury ; as, if the owner of a horse, knowing it to be vicious and unmanageable, lends it to one ignorant of its bad qualities, concealing them from him, and by reason thereof the rider is thrown from it and injured." The animal should be used only for the purpose, and to the extent stipulated. A borrowed horse cannot be used by a servant. And one borrowing a horse for a week to go to Boston, keeping him a month, or goes to Albany, is re- sponsible for any accident to the horse in his journey to Albany or after expiration of the week.? When no time is fixed a reasonable time for the purpose intended will be presumed. During the loan the borrower must care for and provide the horse with food, drink and shelter."! If from exhaustion he refuses his food he should be cared for and unworked until restored. If he dies from disease, 1 " or is killed by inevitable accident, or the like, the borrower is not liable. When the purpose of the loan is accomplished or the time thereof is elapsed, he should be re- turned to his owner. A misuser of the animal will put an end to loan. 8 See " Hiring," below. DEFECTS that are patent, that is, which are manifest, open and plain to an ordinary ob- server (as a horse minus an eye or tail), and those also which are known to the buyer, are not usually covered by a general warranty.' The former requires no skill to discover them, and the latter may be objected to or acquiesced in at the time of purchase. In the case of latent defects existing in such a condition that they could not be detected by the buyer, and are known to the seller, who fails to disclose them to the buyer, this is a constructive fraud, unless the animal is sold " with all faults." By consenting to purchase the horse " with all faults," the purchaser takes upon himself the risk of latent or secret defects, and calculates the price accordingly. 11 But even this kind of a purchase would be voidable if the seller had purposely, and to deceive the purchaser, cov- ered, filled up, patched, plastered, or otherwise practised fraud to conceal any defects, and the seller would be held liable. T HIRING out a horse and carriage to perform a particular journey carries with it the warranty of the person letting that the horse w and carri- age, and each of them, is fit and competent for such journey, and this though a particular horse has been selected out of the owner's stables.* But if a horse is hired for one pur- pose and is used for another, and is injured, the hirer is liable for the damage sustained. The hirer is in all cases answerable for ordinary neglect.'' If, therefore, he uses the hired horse as 104; 16 Ga. 25. q-2 B. & B. 359; i Gow. i. r-Palm. 548 ; 2 Y. & J. 394. s-2 Exch. 482. t-See 21 Tex. 300 ; 10 Ves. 507 ; 2 Caines, 202 ; 2 J. J. Marsh. 587 ; a Rolle 5 ; 2 Humph. 305 ; 2 Head. 314 ; 18 Penn. St. 203 ; 3 Eng. 166 ; i La. An. 389 ; 28 Ala. 424 ; 24 Conn. 562 ; 37 vt. 155 ; 13 Rich. L. 98. 11-3 Campb. 156. v- Taunt. 784, 785 ; 3 Campb. 508 ; s'Bingh. 535 ; 2 Exch. 541 ; Story Sales, 126. wio L. T. 231, 308. x-io L. T. 231. y -Jones Bailm. 25; 100 Mass. 40; 3 Alk 564. ANIMALS. a prudent man would his own, he is not answer- able for any damage which the horse may re- ceive. 1 If, however, he keeps the hired horse after a stipulated time, or uses it differently from his agreement, he is in any event liable.* If a horse is taken sick on an agreed journey, without fault of the hirer, the expense of the cure must be born by its owner. b If the hirer pre- scribe the medicine he is liable for improper treatment ; but not so if he calls in a farrier. The hirer must pay for his shoeing during the hire, unless the horses are driven by the ser- vants of him who lets them. d If the hirer Sells the horse the owner may recover its value of the purchaser, though the purchaser had in good faith given the hirer full value for it, as the hirer could give him no better title than he had himself. 6 If one under the pretence of hiring gets a horse out of the possession of the owner and offers it for sale, there is no criminal offence until the sale is actually ef- fected.' If the horse were first hired in good faith and afterwards sold, this at common law is no felony. * If through the hirer's negli- gence the horse is stolen he must answer for it. h In general, the owner of a horse is liable for any accident which may befall it when fairly used by the hirer. 1 If a person hire a carriage and any number of horses, and the owner sends his postillion or servant with them, the hirer is discharged from all attention to them,J and any damage done through the negli- gence of the servants must be answered for by their employer or master. k The hirer of a horse and carriage is liable for damage occasioned by the negligence of himself or his servant. Where two persons hire a carriage they are both answerable for any damage occasioned by the negligent driving of one of them. Where it is hired by one only, the other, who is a mere passenger, is not liable. 1 Where a master and servant are together in a carriage, and an injury ensues, the master, from his mere pres- ence, is a co-trespasser, if the act of his servant amounts to a trespass. SALES. See Defects, above ; Unsoundness, Vice, Warranty, below. UNSOUNDNESS is a disqualification for work which arises either from disease or accident. If at the time of sale the horse has any disease which either does actually diminish the natural usefulness of the animal so as to make him less capable of work of any description, or which in its ordinary progress will diminish the natural use- fulness of the animal ; or if the horse has, either from disease or accident, undergone any alter- Z-3 Camp. 5 n. -Jones Bailm. 121 ; see 26 Miss. 413 ; 15 Gray, 306. b-Path. Lonage, 129 ; Story Bailm. 259; 3 Allen, 595 ; 13 Gray, 234. 0-3 Campb. 4. d- Poth. Lonage, 107, 129 ; Story Bailm. 258. C-5 C. & P. 313; i C. B. 672. f-8 C. & P. 295; see i Leach. 212,409,420. g-8 C. & P. 295. h-Jones Bailm. 88; ee loCush. 117; 26 Vt. 316 ; 29 Tex. 40; 4iN.H.282; Am. L. Rev. 1871. i-See 3 F. & F. 152 ; 2 C. B. N. S. 790, and 12 M. & W. 60; 23 L. J. Exch. 108. j- Tones Bailm. 88; 5 Esp. 263 ; 2 M. & R. i. k-s Esp. 35 , 5 B. & C. 558 ; see also 5 B. & C. 556 ; 6 M. & W. 499 ; 5 B. & C. 547. 1-4 Esp. 229. m-Cr. & M 220 ; see also i Cr. & M. 354 ; 4 M. & G. 48. n-g M. & W. tfi. o-Chitty Contr. 7 Am. Ed. 464. p-2 M. R. ation of structure that either does at the time, or in its ordinary effects, will diminish the nat- ural usefulness of the horse, such horse is un- sound. Sound means that the animal is sound and free from disease at the time he is war- ranted sound ;P and the only qualification which it is susceptible of arises from the purpose for which the warranty is given.d . for the purposes aforesaid, to ask, demand, sue for, attach, levy, recover, and re- ceive all such sum and sums of money, which are now or may hereafter become owing and payable for or on account of all or any of the ac- counts, dues, debts, demands, judgments, rights, credits, and choses, above assigned, giving and granting unto the said attorney full power to do and perform all and every act and thing whatso- ever requisite and necessary, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and rev- ocation, hereby ratifying and confirming all that the said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. In witness whereof, I have hereunto set my hand this day of , A. D. . (Witness.) A. B. Assignment <;cn<>i-Hi Form. By Indorsement. For value received, I assign (transfer and set over) the (within, above, or foregoing) written note (or other instrument), together with all my title and interest in and rights under the same, to E. F. (Signed) A. B. Assignment General Form. Personal Property, by Indorsement with Power, tic. Know all men by these presents: That the undersigned, A. B., in consideration of dollars, to me paid by EX F. , have assigned, transferred and set over unto said E. F. all my title and interest in and rights under the within- written instrument, and every clause, article and thing therein contained. That I hereby appoint and constitute said E. F. my attorney, in my name, place or stead, or otherwise, to his own use to take all legal meas- ures which may be proper for the complete re- covery asd enjoyment of the assigned premise, with full power of substitution. In witness, etc. Assignment General Form. Property in Schedules Attached. This assignment, made this day of , witnesseth : That A. B. (of ), in consideration of dol- lars, [the receipt of which is hereby acknowl- edged] assigns, transfers and sets over to E. F. (of ) [his executors, administrators and as- signs] all his title and interest in and rights under, accounts, debts, demands, goods, merchandise, notes, wares, etc., etc. (according to the nature of the property scheduled ) set forth in the schedules (marked A, B, C.etc.) attached to and made a part of this assignment. That said A. B. gives said E. F. [his executors, administrators and assigns] the full power to ask, demand, collect, receive, receipt for, com- pound, and give acquittance for the same or any part thereof; and in said assignor's name, or otherwise, but at his r their own costs, to pros- ecute and withdraw any suits at law or in equity therefore. Given under my hand (and seal) (at ), the day and year first above written. A. B. Assignment Ac-count. Know all men by these presents : That I, A. B. (of ), in consideration of dollars, the receipt of which is hereby acknowl- edged, do hereby assign, transfer and set over unto E. F. (of ) (his executors, administrators and assigns, and to his and their own proper use and bene- fit), all my title and interest in and rights under any and all sum or sums of money now due or to grow due upon the annexed account or upon the sales (loans, services, etc.) therein mentioned. That I do hereby give said E. F. (his executors, administrators and assigns) full authority and power to ask, collect, demand, receive, receipt for, com- pound and acquit; and in my name or otherwise to institute, prosecute and withdraw ay action at law, or suits in equity therefore. In witness, etc. Assignment Acknowledgment. The assignor may in any case acknowledge his as- signment before a competent officer, whose certificate should be indorsed on or attached to the assignment. Such acknowledgment will entitle the assignment to be introduced in evidence without proof of its execution, ASSIGNMENT. and also enable the holder to have it recorded if neces- sary . For form of ACKNOWLEDGMENT, see that title, ante. Assignment Apprentice. Apprenticeship is a relation which cannot, in the ab- tence of a statute allowing it, be assigned." Though if Mnder such an assignment the apprentice continue with his new master, with the consent of all the parties and his own, it will be construed as a continuation of the old apprenticeship. 1 Know all men by these presents : That I (the within named) A. B. (of ), for value received, hereby assign, transfer, and set over the within indenture and apprentice therein named unto E. F. (of ), his executors, administrators, and assigns, for the residue of the term within mentioned ; he and they performing all and singular the covenants therein contained, on my part to be kept and performed, and indemnifying me for the same. In witness, etc. (Signatures of old master, parent or guardian, apprentice and new master.) Assignment Bill of Sale. Know all men by these presents : That A. B., by his deed and bill of sale, bearing d,te the day of , and which is hereunto annexed, did for the consideration (of ) therein expressed, bargain, sell, and deliver to said C. D. the household goods, implements, and utensils in and about his dwelling-house at , a schedule of which is attached to said bill of sale hereunto annexed. That said C. D., for a consideration of dollars, does by these presents bargain, sell, as- sign, and set over to E. F. all and every said goods, implements, and utensils which are in said bill of sale and schedule annexed mentioned, to have and to hold the same forever. And said C. D. does hereby covenant that said foods, implements, etc., are, etc. In witness, etc. Assignment Bill of Sale. Part of a Vessel. Know all men by these presents: That I, the within-named A. B., in considera- tion of the sum of dollars (the receipt of which is hereby acknowledged) do by these presents grant, assign, transfer, and set over unto E. F. the with- in-written bill of sale, and all my title and interest in and rights under the same, and in the one full and equal sixteenth part of the within described and mentioned vessel, V, together with all her anchors, apparel, boats, cables, furniture, gun- powder, masts, munitions, f opes, sails, sail-yards, shot, tackle, and all other appurtenances within (ranted and to said vessel belonging. To have and to hold the same unto himself, his heirs and assigns forever. That I do covenant, promise, and agree that maid sixteenth part of said vessel, with the ap- purtenances, are and shall remain free and clear of all debts and encumbrances whatsoever by or through my means, consent, or procurement. In witness, etc. Assignment Bill of Sale. Part of a Vessel. Know all men by these presents : That I, the within-named A. B., in considera- tion of the sum of dollars, the receipt of which is hereby acknowledged, do hereby assign, transfer, and set over to E. F. the within-written bill of sale of one full and equal sixth part c f the within-mentioned steamer, "Century," and all her anchors, apparel, boats, cables, furniture, masts, munitions, oars, sails, tackle, yards, and all appurtenances thereunto belonging, and all ray title and interest in and rights under said bill of sale, to have and to hold the same forever. That I, the said A. B. , do hereby for myself, my heirs, executors, and administrators, covenant and agree with said E. F. that said one-sixth part of said steamer, with the appurtenances, are now, and shall continue unto said E. F., his heirs and assigns, free and clear of all debts and encum- brances whatsoever made or suffered by me, or W-s Binn. 423 ; 4 T. R. 373 ; Dougl. 70 ; 3 Keb. 519 ; 13 Mod. 554; 18 Ala. N. S. ; 99 Busb. 419. x-Dougl. 7o;4T.R_373; 19 Johns. 113; 5 Cow. 363 : 2 Bail. 93. any other person whatsoever, by or through my consent, means, or procurement. In witness, etc. Assignment Bond. Know all men by these presents: That I, A. B.,the undersigned, in consideration of the sum of dollars, the receipt of which is hereby acknowledged, do by these presents as- sign, sell, and transfer unto C. D., his executors, administrators, and assigns, a certain written bond or obligation, and the conditions thereof, bearing date the day of , A. D. , exe- cuted by E. F. and W. his wife, to said A. B., and all the sum and sums of money due and to grow due thereon, together with all my title and interest in and rights under the same. In witness whereof, I have hereunto set my hand this day of , A. D. . A. B. Assignment Bond. Assignor to be liable. For value received I do hereby assign, transfer, and set over to E. F. the within obligation, and all moneys due and to become due thereon. In case the same cannot be recovered of the within-named C. D., I agree and promise to pay to said E. F. the amount thereof, together with all necessary and reasonable charges thereupon accruing. Witness my hand, etc. A. B. ( Witnesses') Another. For value received I hereby assign, transfer, and set over to E. F. the within obligation, here- by guaranteeing payment thereof. A. B. ( Witnesses) Assignment Bond. Assignor not to be liable. For value received I hereby assign, transfer, and set over to E. F. the within obligation, and all moneys due (and to become due) thereon. All feilure of recovery, liabilities, losses wholly at the risk of said E. F., without recourse in any event upon me. A. B. ( Witnesses) Assignment Bond. Covenant of amount due ; power to sue, etc. Know all men by these presents : That I, A. B., in consideration of , hereby assign, transfer, and set over unto E. F. a certain written bond or obligation, and the condition thereof, bearing date the day of . Exe- cuted by C. D. to me the said A. B. That I have good right to assign said bond. That there is now due thereon, according to the condition thereof, dollars, principal, and dollars, interest. That said E. F. is hereby authorized and em- powered at his own costs, and for his own use and benefit, to ask, collect, demand, receive, cancel, compound, discharge, and give acquit- tances for the same or any part thereof. In witness whereof, etc. Assignment Bond, etc. Covenants, Guaranty, Power to Sue, etc. Know all men by these presents : That C. D. (of ), in and by a certain bond or obligation, bearing date the day of , be- came bound to the undersigned A. B. (of ), in the sum of dollars, with interest, on the day of , last past. . That there remains due said A. B. of the princi- pal and interest on said bond or obligation the sum of dollars. That in consideration of dollars (the receipt of which is hereby acknowledged) said A. B. does by these presents sell, assign, transfer, and set over to E. F. (of ), said bond or obligation, and all his title and interest in and rights under the same, and all sums of money due or to grow due there- on. Subject, however, to all the conditions thereof. That there is now due on said bond or obliga- tion, according to the condition thereof, principal, dollars, and interest, dollars (or interest from the day of ). That said A. B. hereby guarantees the payment (or collection, or collectability) of said sum. ASSIGNMENT. 99 That said A. B. has not received, and shall not receive payment of any of the sums secured to be paid or payable by said bond or obligation (saving and excepting state what exception, if any), and shall not release, cancel or discharge the same or any part thereof, or do, or permit know- ingly, any act or thing to hinder said E. F. from collecting or enforcing the same. That said E. F. is hereby appointed, authorized, constituted and empowered my true and lawful attorney, irrevocable, with full power of substi- tution and revocation, for me and in my name, or otherwise, and for his sole use and benefit to ask, demand, enforce and receive of said C. D. the money due or to grow due on said bond or obli- gation ; and on non-payment (or non-performance) thereof to sue for, enforce, recover and receive the same, and on satisfaction thereof to cancel and deliver up said bond or obligation, and give the customary or necessary acquittances, dis- charges or releases thereof. In witness whereof, etc. Assignment Bond. By Indorsement. Know all men by these presents : That I, the within-named A. B., in considera- tion of the sum of dollars, to me paid, the receipt of which is hereby acknowledged, do by these presents assign, convey and set over the within-written bond or obligation, and the sum of dollars mentioned in the conditions there- of, and all my title and interest in and rights under the same unto E. F. (his heirs, executors, administrators and assigns), subject nevertheless to the conditions thereof. That I hereby authorize said E. F., in my name or otherwise, to demand, sue for, recover and enjoy said sum of dollars and interest, to his ewn use absolutely forever. In witness, etc. Another. Know all men by these presents : That I, the within-named A. B., for value re- ceived, do hereby assign, transfer, and set over unto E. F. the within-written bond or obligation and all sums of money payable by virtue thereof. That I do hereby constitute said E. F. my lawful attorney, irrevocable, to demand, sue for, recover, receive and use the same for his sole use and benefit. In Case of Death add: That in case of my death before the same shall be recovered, that my legal representatives shall give said E. F. full power as aforesaid, to recover and use the same. In witness, etc. Assignment Bond. For the Payment of Money, etc. Know all men by these presents : That I, the undersigned, A. B., in consideration of the sum of dollars (the receipt of which is hereby acknowledged), do hereby assign, transfer and set over unto E. F. (his heirs, executors, admin- istrators and assigns) all my title and interest in and right under a certain bond or obligation, in the words and figures as follows (copying the bond at length), (or a. certain bond or obligation, bearing date the day of , executed by for, etc., with conditions, etc.) That I authorize said E. F. to ask, demand, sue for, release, receipt, and acquit for the same, for his sole use and benefit, in the manner required by law, with full power of substitution. In witness, etc. Assignment Bond. For Peaceable Enjoyment of Vessel, etc. , Assigned. Know all men by these presents : That A. B.,by an obligation, under his hand, .n the sum of , bearing date the day of , and reciting therein the transfer, by bill of sale, to C. D., of a certain vessel, of tons burthen, known as the V., whereof M. R. is master, and all appurtenances and things to said vessel be- longing, free from all former grants, charges, or incumbrances whatever, with condition for the security and peaceable enjoyment of said vessel. That said C. D., for the consideration of (the receipt of whjch is hereby acknowledged), does hereby assign, transfer and aet over unto E. F. all his title and interest in and rights under said bond or obligation. That said C. D. does hereby appoint, make and name said E. F. his lawful attorney, in his name, place and stead to ask, demand, receive, sue for, recover and release, and acquit said obligation for his own and proper use, employing whatever means, remedy, or course to that end which he may see fit lawfully to use, with full power of substitution. In witness, etc. Assignment Chattels. See ASSIGNMENT PERSONAL PROPERTY, ETC., below. Assignment Claims. For Money Due. Know all men by these presents : That I, A. B. (oi ), in consideration of dollars (the receipt of which is hereby acknowledged), hereby assign, transfer and set over to E. F. the annexed account of moneys due me by C. D., and all sums of money due and payable by virtue of the same, and all my title and interest in and rights under the same. That said account and moneys shall be for the sole and proper use of said E. F., without any account to be given for the sarrte. That I hereby give and grant said E. F: full authority and power to demand, receive, sue for, and collect said accounts and moneys, and upon receipt thereof to give discharges for the same or any part thereof. That I hereby covenant and agree to and with said E. F. that the sum of dollars is justly due and owing on said account, and that I have not re- ceived or discharged the same or any part thereof. In witness whereof, etc. Assignment Contract. Sale of Real Property. See ASSIGNMENT DEED, below. Know all men by these presents : That I, the undersigned, A. B., in consideration of dollars, do hereby sell, transfer, assign, and set over unto E. F. all my title and interest in and rights under a contract bearing date the day of , executed by C. D. (of ) to me, for the sale to me of the following described real estate, situated in , to wit (copy description given in the contract assigned ). That this assignment is subject, nevertheless, to the conditions and covenants therein mentioned. That I hereby authorize and empower said E. F., upon his performance of said covenants and conditions, to demand, enforce and receive of said C. D. the deed covenanted in said contract to be given ; and all relief concerning the same to obtain in the same manner, to all intents and purposes as I myself might or could do were these presents not executed. In witness, etc. A. B. Assignment Consent. I hereby consent to the foregoing assignment, together with all conditions and terms therein contained. C. D. Another. I, the undersigned, C. D., in the foregoing in- strument named, hereby consent to the assign- ment of that part of my agreement with A. B. (of ), and agree to make and execute the con- veyance therein mentioned to said E. F. upon the performance of said agreement. C. D. Assignment Copyright. See title COPYRIGHT. Assignment Corporation or Company* Know all men by these presents : That "The C. Y. Company," (of ) is a cor- poration organized (or existing) under (the Jaws of the State of , or An Act of the Legislature or General Assembly of the State of , Approved or Passed, March , Entitled, etc., setting out the title of the act). That said company, in pursuance of a resolu- tion of its directors (or trustees), passed on the dayof ,and in consideration of dollars (if paid say: the receipt of which is hereby acknowl- edged) hereby sells, transfers, assigns and sets over 100 ASSIGNMENT. unto E. F. all its title and interest in and rights under the following described property, to wit: All the machinery, shafting, belting, fixtures, furniture, tools, patterns, dies, moulds, and their accessories, mentioned in schedule "A," hereunto annexed. All stock and material of every kind, whether raw, manufactured, in process of manufacture, or otherwise, all waste, etc., etc., mentioned in schedule " B," hereunto attached All office fixtures, furniture, conveniences, etc., etc., mentioned in schedule "C," hereunto at- tached, etc., etc. That a more full and accurate description of the property hereby conveyed may be had by reference to a full and minute inventory thereof, made on the day of , and contained in an inventory-book of said company (and delivered by consent of parties to one G. H). (Covenant of right to sell, value, etc., Warranty, etc., see ante and post. ) In witness whereof, the president and secretary of said company have hereunto set their hands and affixed the seal thereof (at ), this day of . P. P., President. (Witnesses) [Seal.] S. Y., Secretary. G. H. I. K. As* i gn men 1 I > < 1 t . I, the undersigned A. B. (of ), in considera- tion of dollars (the receipt of which I hereby ac- knowledge), do assign, transfer, and set over to E. F. (of ) a certain debt due and owing me from C. D. (of ), for (here state what the debt is for], amounting to dollars. I do hereby covenant that said sum of dol- lars is justly owing and due to me; that there is no counter-claim, cross-demand, or set-off against the same, and that the same is not, nor will be barred by the statute of. limitations for from the date hereof. And that I have neither done nor shall dp anything to discharge or lessen said debt, or hinder said E. P. or his assigns from collecting the same. In witness, etc. Assignment Debt. As security, with power, etc. Know all men by these presents : That A. B. (of ), in consideration of , now due from him to E. F. (of ), and to secure payment of the same to said E. F., do by these presents grant, assign, transfer, and set over all his title and interest in and rights under a debt due him from C. D. (of ), for , amounting to dollars. That said A. B. does hereby constitute and ap- point said E. F. his attorney irrevocable, in his name, place, and stead, at his own costs and ex- panse, to ask, demand, sue for, recover, receive, receipt for, and release said debt, for his own use and benefit. Provided, nevertheless, that if said A. B. , or his legal representatives, shall pay or cause to be paid said sum of dollars due within from the date hereof, said E. F., as aforesaid, then this assignment and every matter and thing herein contained shall be absolutely void and of no effect whatever. In witness, etc. Assignment Deed. See "Assignment Contract," etc., above. Know all men by these presents : That A. B. (of ), the within-named (or under- Sned) grantee, and W., his wife, in consideration of the sum of dollars (the receipt of which is hereby acknowledged), hereby grant, bargain, sell, assign, transfer, and set over unto E. F. (of ) ali the within (or following) described tract or par- cel of land situated in , to wit (describing it), containing acres, more or less, together with the appurtenances, to have and to hold the same unto himself, his heirs and assigns forever. (That said premises are the same that G H.. >. Penning. 521 ; 79 N. H. 240; 23 Pick. 80, 88; 4 AL. iN. S.) 160; 4 Me. 67; 2 Ind. 388; Tudor L. Cas 5,1. b-2 Bl. Comm. 136, i Washb. R. Prop. 229. c- J>ef. 20 Ala. (N. S.)662; -j Monr 337; 5 Conn. 462. i Ala. (N. S . R Prop ,337; 5 222, if. 2*7. d-Th? remedy of the by the within-written conveyance (or a conveyance bearing date the day of ) conveyed to said A. B. on the day of , and which is recorded in office of the , in deed book, No. , page .] That said A. B. shall and will warrant and de- fend these presents against all and every other person or persons whomsover, lawfully claiming; or to claim the same or any part thereof, by, from, or under him. In witness whereof, etc. A. B. (Witnesses.) W. B. For form of "ACKNOWLEDGMENT," see that title. Assignment Dower. By Heir. The assignment of dower is an act by which the share of a widow in her deceased husband's real estate is as- certained and set apart to her. The assignment may be made by the heir, or hii guardian, or the devisee, or other persons in possession of the lands subject to dower, a or it may be made after a course of judicial proceedings, where a voluntary assignment is refused. In this case the assignment \% made by the sheriff, who sets off her share by metes and bounds. 1 " The assignment should be made within the time limited by law after the death of the husband, dur- ing which time the widow shall remain in her husband's principal residence. The share of the widow is usually one-third of all the real estate of which the husband has been possessed during the marriage ; and no writing or delivery is necessary in a valid assignment, the doweress being in according to the view of the law of the posses- sion of her husband." 1 If the guardian of a minor heir assign more than he ought, the heir on coming of age may enforce an admeasurement of dower. Know all men by these presents : That A. B. was in his lifetime, and at the time of his death, on the day of , seized in fee of divers lands and tenements in (or as follows : describing them), which upon his decease 'de- scended unto I. B. That said W. B. is the widow of said A. B. That said I. B. hereby assigns, endows, and sets over unto said W. B. the third part of said lands and tenements, to wit (describing the same], That said W. B. shall have and hold said prem- ises during her natural life as dower and in recom- pense and satisfaction of all dower which said W. B. ought to have in said lands and tenements. In witness whereof, etc. ") I. B. Signed, sealed, acknowled| delivered in presence of W. " For form of "ACKNOWLEDGMENT," see that title. Assignment Ground Rent. Know all men by these presents: That the undersigned A. B. (of ), and W. his wife, for and in consideration of the sum of dollars (at or before the stating and delivery of these presents, the receipt of which is hereby acknowl- edged), have and by these presents do alien, assign, bargain, convey, confirm, enfeoff, grant, sell, set over, and transfer unto E. F. (of ) all that cer- tain yearly rent, charge, and sum of dollars, chargeable half-yearly, issuing and payable by C. D. (of ), his heirs and assigns, on the first day of the months of January and July of each and every year, forever, without any deduction for taxes out of and for all that certain lot and tract of ground situated in , and described as follows, to wit (describing it by metes and bounds), together with all the ways, means, rights, privi- leges, remedies, power of entry, distress, and re- entry for recovery, payments of the aforesaid yearly rent charge, and the arrearage thereof, and the reversions and remainders thereof, and all the estate, right, title, interest, property, claim, and demand whatsoever of them. To have and to hold the same together with the appurtenances forever. That said A. B., for himself, his heirs, executors, and administrators, does by these presents cove- nant and agree to and with said E. F., his heirs widow when the heir or guardian refuses to assign dower: 4 Kent Comm. 63. e-2 Ind. 336: i Pick. 314; Co. Litt. 34, 35: Fitzh. Nat. Brev. 148; Finch. 314 Stat. Westm. 2 (13 Edw. i.)c. 7; i Washb. R. Prop 222-250; i Kent Comm. 6j, 69 ; 2 JJouv. Jnst n. 1743. a lanas ana i :dged,and V T. I.,T. S. j ASSIGNMENT. 101 nd assigns, that he will warrant and forever de- fend these presents against himself and his heirs and against all and every person and persons whomsoever, lawfully claiming or to claim the same or any part thereof, by, from or under him, them, or any of them. In witness whereof, etc. (Uglinesses.) A. B. W. B. For form of "ACKNOWLEDGMENT," see that title. Assignment Indenture. See ASSIGNMENT APPRENTICE, above. Assignment Indorsed. General Form. For value received, I assign (transfer and set over) the (within, above, or foregoing) written note (or other instrument), together with all my title and interest in and rights under the same, to E. F. (Witnesses.) (Signed) A. B. Assignment Insolvent Debtor. Know all men by these presents: That I, A. B.,of , am indebted to divers persons and unable to pay the several amounts of their claims in full, and desire to convey all my property for the benefit of all my creditors, without preference or priority. That in consideration of the premises, I do by these presents grant, bargain, sell, assign, trans- fer and set over unto E. F., all my lands, tene- ments, hereditaments, goods, chattels, rights, credits and effects of every name, nature and de- scription (saving only such property as is exempt by law from attachment and execution), in trust, never- theless, to sell and dispose of and collect the same, with full power to compound, adjust and settle for the same or any part thereof, and apply the proceeds thereof as follows : To pay all costs and charges of these presents, and the lawful expenses of executing the trust hereby created. To distribute and pay the remainder of said proceeds, ratably and in equal proportions, to my creditors, in satisfaction and release of all debts by me owing. To repay me, my executors, administrators and assigns the residue of said proceeds, if any there be. In witness whereof, etc. Assignment Insolvent Debtor. Know all men by these presents : That A. B. is unable to pay all his just debts. That said A. B. , by the assent and concurrence of his creditors, who have subscribed their names to these presents, does hereby assign, transfer and set over all his estate, real, personal and mixed, his lands, tenements and hereditaments, goods, chattels and effects (saving only household furniture and supplies), goods, wares and merchan- dise, moneys, sureties for moneys, rights and credits of whatever nature soever, and all his title and interest in and rights under the same, unto E. F., in trust, nevertheless, for the benefit of all his creditors, as follows: That said E. F. shall forthwith take possession of the premises, and with diligence, by private and public sale, and for the best price he can pro- cure, convert the same into money, and collect all sum and sums of money aforesaid. That said E. F., after deducting the costs, charges and expenses of said trust, and paying said A. B. , in consideration of his services in the adjustment and settlement of his affairs, and for support and maintenance of himself and family, dollars, he shall pay and discharge, in equal proportion, the respective debts of all the credi- tors whose names are hereunto subscribed. That said E. F., after full satisfaction and dis- charge of the debts of said subscribing debtors, shall, out of the residue, pay all other creditors of said A. B. in equal proportions. That said E. F. shall pay over any surplus re- maining to said A. B., his executors or adminis- trators. (Add any further clauses which may be desirable?) (Signed i A. B. (Signed) E. F. Creditors' Signatures. Creditors' Signature*. Assignmont Insolvent Debtor. With Conditions, etc. Know all men by these presents : That A. B.,with the assent and concurrence of his creditors, whose names are hereunto sub- scribed, and for the considerations hereinafter mentioned, hereby grants, assigns, transfers and sets over to E. F. and his assigns, all his house- hold goods, his wares, merchandise, stock in trade, accounts, bills receivable, mortgages, notes and all his rights, credits and effects. In trust, nevertheless, to sell or dispose of the same, at public or private sale, at said assignees' (or trus- tees') discretion, and to collect and convert the same into cash, and after deducting the necessary and usual charges divide the whole of the proceeds and collections thereof among said subscribing creditors of said A. B., pro rataand in proportion to the amount of their respective claims against him. Classes for insertion when applicable. CONCEALMENT OP PROPERTY. That in case said subscribing creditors, or any of them, shall at any time hereafter prove or make appear that said A. B. , on the date of these presents, or at anytime hereafter, was possessed of or interested in any other goods, wares, mer- chandise, rights, credits or effects whatsoever (saving wearing apparel), to the value of dollars or upwards, besides what are included or referred to in the annexed schedules, then said A. B. shall have no benefit whatever from these presents, or from any releases, receipts or acquittances by any of said creditors given ; but such releases, re- ceipts and acquittances shall, except for the amounts actually paid or value therefore received, be absolutely void. CREDITORS NOT BENEFITED. That every creditor who shall not come in and execute these presents within days from the date thereof, shall not be entitled to any distribu- tion or advantage therefrom whatsoever ; and in such case the proportion or proportions of the premises hereby assigned, to which they would otherwise be entitled to receive, shall be pid over to said A. B., or such person or persons as he shall in writing appoint. CREDITORS' RELEASE. That said subscribing creditors, for the consid- erations in this agreement mentioned, do sever- ally for themselves (and partners) release unto said A. B. all manner of action and actions, ac- counts, bills payable, bonds, executions, judg- ments, deeds, mortgages, notes, and all claims and demands whatsoever, from the beginning of the world unto the date of these presents. DEBTORS' ALLOWANCES. That said A. B. shall be allowed the sum of five per cent, out of the net produce of all the estate hereby assigned which shall be paid him by said assignee (or trustee). That said trustee shall, out of said trust moneys, pay the rent and taxes of the dwelling house of said A. B., on next, and the wages due the servants of said A. B., and all debts due from said A. B. under dollars apiece, provided said debts shall not exceed in the aggregate dollars. DEBTORS' ASSISTANCE. That said A. B. shall, upon reasonable notice, attend said trustee and assist him in making out all accounts relating to the subjects of this as- signment. DEBTORS' COVENANTS. That said A. B. has not heretofore assigned, en- cumbered, received or discharged any part of the premises hereby assigned in trust as aforesaid, and that he will not do or suffer any act to hinder or obstruct said assignee (or trustee) from receiv- ing or recovering the same or any part thereof, or such satisfaction as may be had for the same. That said A. B. shall, at the request and costs of said subscribing creditors, execute and per- form all further and reasonable acts necessary to the execution and performance of the trust herein, and for the better and further assuring and assign- ing of the premises, and for enabling said as- 102 ASSIGNMENT. signee (or trustee) to collect, recover, and receive the same and every part thereof. DEBTOR'S POWER TO ASSIGNEE (or TRUSTEE.) That said A. B. , with the assent and concurrence of his said subscribing creditors, hereby appoints, authorizes, constitutes, and empowers said E. F., and his assigns, his lawful attorney irrevocable, in his name or otherwise, as is lawful and proper, to ask, demand, sue for, recover, and receive all and singular the premises assigned, and upon receipt of the same, or any part or satisfaction thereof, to give the necessary releases, receipts, and ac- quittances ; to compound, compromise, and arbi- trate all matters, when in his opinion the same is o the best interests of said creditors, and gen- erally to do all acts necessary to effect the pur- poses of these presents. INSURANCE. That said assignee (or trustee) may, in his dis- cretion, cause said trust estate to be insured, and deduct the necessary premiums of such insurance from the same. PROVING CLAIMS. That no dividend or distribution shall be made by said assignee (or trustee) of any part of the effects assigned in trust by these presents to or among any of the creditors, parties to the same, until such creditor shall have made affidavit or affirmation of the amount, character, date, items, and justness of his claim or demand, and that the same is founded on a sufficient legal considera- tion, before some person authorized by law to administer the same. SALES. That said assignee (or trustee! may dispose of said household goods, merchandise, etc., at such prices as he can (after due notice of such sales) ob- tain for the same. SURPLUS. That when said subscribing creditors shall have received the whole of their respective debts, and all allowances, charges, and commissions have been deducted from said trust moneys, said as- signee (or trustee) shall deliver or pay over the re- mainder (if any) to said A. B. , his executors or administrators. TRUSTEE'S (or ASSIGNEE'S) ACCEPTANCE. Said E. F. hereby accepts the trust created by the above instrument, and agrees fully and faithfully to perform the same. (Signed) E. F. TRUSTEE'S (or ASSIGNEE'S) ACCOUNTING. That said assignee (or trustee) shall not be liable or chargeable for any assets other than what he shall actually receive by virtue of these presents, nor be accountable for any losses that shall hap- pen in the management and disposal of said es- tate occurring without his default or negligence. TRUSTEE'S (or ASSIGNEE'S) COMPENSATION. That said assignee (or trustee) may reimburse himself all necessary costs and expenses incurred in the management and performance of the trusts hereby reposed in him, together with an allow- ance and commission, as follows, etc. TRUSTEE'S (or ASSIGNEE'S) COVENANTS_. That said E. F. covenants and agrees with said A. B., and with said subscribing creditors sever- ally, that he will fully and faithfully execute and Serform all the trusts herein and hereby reposed i him, and will at the request of said subscribing ^creditors, or their majority, render them his ac- count in -writing touching said trusts, and will make a just and speedy distribution of all trust moneys (less the necessary deductions herein specified) among said creditors according to the true intent and purpose of these presents. TRUSTEE'S (or ASSIGNEE'S) DEATH, ETC. That should said assignee (or trustee) die pos- sessed of said trust estate and moneys, said sub- scribing creditors, or their majority, shall appoint, in writing under their hands, another person as assignee (or trustee) in the place and stead of said assignee (or trustee). That upon reasonable notice to said A. B.,or his executor or administrators, of such appoint- ment, he or they shall thereupon deliver and -3 Summ. Ch. 345 ; 10 Paige, Ch. 445 ; i N. Y. 101 ; transfer all and singular said trust estate and premises to such new assignee (or trustee , subject to the trusts in these presents declared, and to such other agreements, conditions, and cove- nants as shall be agreed upon by said subscribing creditors, or their majority, and said last-named assignee (or trustee). TRUSTEE'S (or ASSIGNEE'S) RECEIPTS. That the receipts of said assignee (or trustee) of or for any of said assigned premises shall be an effectual discharge to all persons to whom the same shall be given. Assignment Insolvent Debtor. In most States general assignments in trust made by insolvent and other debtors for the discharge of their debts are regulated by the general statutes, which see. 1 It is, however, a well-established doctrine that the debtor must make an unconditional surrender of his effects for the benefit of those to whom they rightfully belong.* And any reservation for himself of power to revoke the con- veyance ; or change the trusts by giving a preference to other creditors at a future time ; or direction that the surplus, after paying the preferred creditors, shall be returned to him, and all conditions, exceptions, or the like, will render the conveyance void, unless, indeed, they are allowed by statute. Deeds, etc., regularly executed and acknowledged, should accompany the assignment where real estate is included in it. And all other evidences should in like manner accompany it. Know all men by these presents : That this assignment, made the day of , in the year , by A. B. and C. D., partners in trade and business, under the name, style, or firm of B. & D., of the first part, to E. F.,of, etc., of the second part, witnesseth : That whereas the said copartnership is justly indebted in considerable sums of money, and has become unable to pay and discharge the same with punctuality, or in full : and the said parties of the first part are now desirous of making a fair and equitable distribution of their property and effects among their creditors : Now, there- fore, the said parties of the first part, in consid- eration of the premises, and of the sum of one dollar to them in hand paid by the party of the second part, the receipt whereof is hereby ac- knowledged, have granted, bargained, and sold, released, assigned, transferred, and set over, and by these presents do grant, bargain and sell, re- lease, assign, transfer and set over unto the sai>j party of the second part, and to his heirs and as- signs forever, all and singular the lands, tene- ments, and hereditaments, situate, lying, and being, within the State of , and all the goods, chattels, merchandise, bills, bonds, notes, book accounts, claims, demands, chpses in action, books of account, judgments, evidences of debt, and property of every name and nature whatever, of the said parties of the first part, more particu- larly enumerated and described in the schedula hereto annexed, marked " Schedule A" ; to have and to hold the same, and every part and parcel thereof, with the appurtenances, to the said part; ' of the second part, his heirs, executors, adminis- trators, and assigns: In trust, nevertheless, and to and for the following uses, intents, and pur- poses, that is to say : that the said party of the second part shall take possession of all and sin- gular the lands, tenements, and hereditaments, property and effects, hereby assigned, and sell and dispose of the same, upon such terms and conditions as in his judgment may appear best, and most for the interest of the parties concerned, and convert the same into money : and also to collect all and singular the said debts, dues, bills, bonds, notes, accounts, claims, demands, and choses in action, or so much thereof as may prove collectable ; and thereupon to execute, ac- knowledge, and deliver all necessary convey- ances and instruments for the purposes afore- said : and by and with the proceeds of such sales and collections, the said party of the second part shall first pay and disburse all the just and rea- sonable expenses, costs, charges, and commis- sions, of executing and carrying into effect thi* 20 Ga. 44. b-i4 Johns. 458; 5 Cow. 547; n Wend 187 ; 6 Hill, 438. ASSIGNMENT. '03 assignment, and all rents, taxes and assessments due or to become due on the lands, tenements and hereditaments aforesaid, until the same shall be sold and disposed of; and by and with the residue, or net proceeds and avails of such sales and collections, the said party of the second part shall, First. Pay and discharge in full the several and respective debts, bonds, notes and sums of money due or to grow due from the said parties of the first part, or for which they are liable, to the said party of the second part, and the several other persons and firms designated in the sched- ule hereto annexed, marked " Schedule B," to- gether with all interest moneys due, or to grow due thereon ; and, if said net proceeds and avails shall not be sufficient to pay and discharge the same in full, then such net proceeds and avails shall be distributed pro rata, share and share alike, among the said several persons and firms named in said schedule B, according to the amount of their respective claims ; and, Second. By and with the residue and remainder of said net proceeds and avails, if any there shall be, the said party of the second part shall pay and discharge all the other co-partnership debts, demands and liabilities whatsoever, now exist- ing, whether due or hereafter to become due, provided such remainder shall be sufficient for that purpose ; and, if insufficient, then the same shall be applied pro rata, share and share alike, to the payment of said debts, demands and liabil- ities, according to their respective amounts; and, Third. By and with the residue and remainder of the said net proceeds and avails, if any there shall be, the said party of the second part shall pay and discharge all the private and individual debts of the parties of the first part, or either of them, whether due, or to jgrow due, provided such remainder shall be sufficient for that pur- pose ; and, if insufficient, then the same shall be applied pro rata, share and share alike, to the payment of the said debts, according to their re- spective amounts; and, Lastly. The said party of the second part shall return the surplus of the said net proceeds and avails, if any there shall be, to the said parties of the first part, their executors, administrators, or assigns. And, for the better execution of these presents, and of the several trusts hereby reposed, the said parties of the first part do hereby make, nominate and appoint the said party of the second part, and his executors, administrators, and as- signs, their, and each of their true and lawful attorney irrevocable, with full power and author- ity to do, transact, and perform all acts, deeds, matters and things, which can or may be neces- sary in the premises, as fully and completely as the said parties of the first part, or either of them, might or could do, were these presents not exe- cuted ; and attorneys, one or more, under him to make, nominate and appoint, with full power of substitution and revocation ; hereby ratifying and confirming all, and everything whatever, our said attorney and his attorneys shall do, or cause to be done, in the premises. In witness whereof, the said parties of the first part have hereunto set their respective hands (and seals), the day and year above written. Signed, sealed and delivered ) A. B. [Seal.'\ in the presence of G. H. j C. D. [Seal.] Assignment Judgment. On Record. For value received (or in consideration, etc., as .bove\, I hereby assign and transfer the judgment in this or the above entitled action, together with all my title and interest in and rights under the same, to E. F. (Signed) A. B. Attest : C. C., Clerk of said Court (or ]. P., Justice of the Peace.) Assignment Judgment. % - s8 - I" the Court. . B., plaintiff, ~| Judgment for $ and in- vs. > terestat p. ct. Judgment . D., defendant. ) Record, Vol. , page . For value received (or in consideration of the sum of Collars, the receipt of whjch is hereby acknowl- edged), I do hereby assign and transfer the judg- ment in the above entitled action, together w,th all my title and interest in and rights under the same, to E. F. (Signed) A. B. (Witness) G. H. Assignment Insurance Policy. With. Agent's Approval. The property hereby insured, having been pur- chased by E. F.,the Insurance Company con- sent that the interest of C. D. in the within policy may be assigned to said purchaser, subject, nev- ertheless, to all the terms and conditions therei* mentioned and referred to. Dated at , this day of . A. A., Agent. For value Received, I hereby assign, transfer and set over unto E. F. (and his assigns; all my title and interest in and right under this policy of in- surance, and all benefit and advantage to bo derived therefrom. 'Witness my hand (and seal) this day of . ( Witness) . C. D. Assignment Judgment. Recovered by a Verdict. Know all men by these presents : That A. B., on the day of , in the - court, recovered a judgment against C. D. for- unsatisfied. That on the day of execution was issued for the same. That said A. B., for a consideratien of (the receipt of which is hereby acknowledged) does, by these presents grant, sell, assign, transfer and set over all his title and interest in and rights under the same to E. F. That said A. B. does hereby make, constitute and appoint said E. F. his true and lawful attor- ney, irrevocable, with full power of substitution and revocation, for his own use and benefit to prosecute said execution and all further process to satisfaction. In witness, etc. Assign men t Lease. Know all men by these presents : That I, A. B., (of ), for and in consideration of dollars, to me duly paid by E. F. , (of ), do by these presents grant, convey, assign, trans- fer and set over unto said E. F. a certain instru- ment of lease, bearing date the day of , executed by C. D., (of ), to me for a term of years, reserving unto said C. D. the yearly rent of dollars, payable (monthly or quarterly, etc.) That this assignment shall take effect on the day of next, to continue during all the rest, residue and remainder of said term of years, subject, nevertheless, to the rents, cove- nants, conditions and provisions in said lease mentioned. (That I do hereby covenant, promise and agre.: that said assigned premises are now free And clear of all assessments, assignments, back rents, bargains, demands, gifts, grants, encumbrances, executions, judgments, leases, liens, pledge*, taxes, etc., etc., whatsoever). In witness whereof, etc. For form of "ACKNOWLEDGMENT," see that title. Assignment Lease. Joint Interest of One to Another. Know all men by these presents : That A. B. and C. D. did, by their lease bearing date the day of , let unto E. F. and G. H. all that part and parcel of land \or lot No. , etc. ), situated in , and described as follows, to wit (describing it), together with the appurtenances, for a term of , at the rent of , with full power to underlet and assign said lease. That said E. F., in consideration of , etc., does by these presents assign, transfer and set over all his title and interest in and rights under said lease and premises, unto said G. H., for and during the rest and residue yet to come and un expired of said term. That said G, H- shall keep and save said E- F ro 4 ASSIGNMENT. harmless and indemnified of and from all and every charge and encumbrance whatever, by rea- son of the covenants, conditions and rents in said lease contained and recited. That said G. H. shall wholly pay or cause to be paid all rents and other expenses to be incurred by reason of said lease, for and during all the rest and residue of said unexpired term of , etc. \saving only state what, if anything). In witness, etc. For form of "ACKNOWLEDGMENT," see that title. Assignment Lease. Pew. Know all men by these presents : That A. B. did, on the day of , lease a certain pew or seat, numbered (or lettered) , situated in the division (or part) of the church, in , with the right of its use at all times of divine service, and at all other proper and seasonable times, for the term of from said date, together with the power to lease or underlet the same, subject to the terms thereof. That said pew is at the date of these presents free and unencumbered of and from all rents, charges or encumbrances whatsoever (excepting, etc.) That said A. B., in consideration of (the receipt of which is hereby acknowledged), does hereby grant, bargain, sell, assign, transfer and set over all his title and interest in and rights to (the east O'le-half, etc. of) all said pew or seat unto E. F. for *nd during all the rest of said term by said lease granted and yet unexpired, subject, however, to all the covenants, conditions and agreements in laid lease contained. In witness, etc. Assignment Lease. Security for a Debt on a Bond, etc. Know all men by these presents : That A. B. is indebted to E. F. in the sum of .. , bearing interest, etc., upon a bond, in the urn of , bearing date the day of , and conditioned for the payment of said debt and in- terest, to said E. F. on the day of . That said A. B. did on the day of lease unto C. D. a certain lot (or tracti of land situated in , and deocribed as follows (describing it), for a term of , at the yearly rent of , payable as follows (stating payments). That said A. B. , for the better securing the payment of said bond, does by these presents as- sign, transfer, and set over unto said E. F. all his title and interest in and rights under said lease to said C. D. for and during the rest and residue of said term, with full power to ask, demand, re- ceive, and receipt for said rents. That said A. B. has not done or suffered any act or acts whereby said lease is or may become forfeited, or said leased premises encumbered, and that said E. F. shall, in his name, place, and stead, enjoy all rights heretofore enjoyed by said A. B. Provided, nevertheless, that if said A. B., his heirs, executors, or administrators, shall well and truly pay and discharge said debt, interest, and bond, then this assignment shall be absolutely void and of no effect whatever. In witness, etc. Assignment Lease. For Years. Know all men by these presents : That A. B. did by a lease, bearing date the day of , let unto C. D. (lot No. , in , etc.) or a tract of land situate in , and described as follows, to wit (describing V\ for a term of from said date, at the yearly rent of , payable *s follows (giving payments), together with the privilege of underleasing and letting the same at pleasure. That said C. D. for a consideration of , the receipt of which is hereby acknowledged, does by these presents assign, transfer, and set over ail his title and interest in and rights under said /ease, together with all the conditions and stipu- lations therein contained, to E. F., his heirs and assigns, for and during the rest and remainder of said term. That said C. D. has not done or suffered any act or thing to be made or done whereby at the execution of these presents said lease has become forfeited, void, or voidable. That said E. F. shall quietly hold, occupy, and enjoy said premises and its appurtenances with- out eviction, interruption, or disturbance during the rest and remainder of said term hereby as- signed. That said E. F., or his legal representatives, shall at all times hereafter pay or cause to be paid the rents, and perform the covenants and conditions of said lease, which on his assignor's part shall and is therein stipulated to be per- formed according to the true intent and purpose of said agreement. In witness, etc. Assignment Legacies. One Residuary Legatee to another. Know all men by these presents: That D. D., deceased, made his last will and tes- tament, bearing date the day of , and the same was admitted to probate the day of , etc. That said D. D., by said last will and testa- ment, did constitute and appoint E. X. and T. R. executors thereof, and did give them or their sur- vivors all the rest and residue of his personal estate, after his funeral, etc., expenses, debts, and legacies were discharged and paid. That the following effects were not by said tes- tator specifically bequeathed (describing them). That upon the division of the residuary part of said testator's effects said T. R. shall have for his own exclusive use and benefit, all the said effects, and all interest that shall accrue to or grow from the same. That in consideration of the premises and other valuable considerations said E. X. does hereby assign, transfer, and set over unto said T. R. all his title and interest in and claim to said effects, to have and to hold the same unto said T. R., his heirs and assigns forever. In witness, etc. Assignment Legacies. In Payment of a Bond Debt. Know all men by these presents: That D. D., of , deceased, by his last will and testament, bearing date on or about the day of , after therein bequeathing and dispos- ing of divers parts of his estate and effects, did give, bequeath, and devise all the rest, residue, and remainder of all and singular his real and personal estate of what kind and nature soever not therein disposed of to A. B., of , C. D., of , and G. H., of , their heirs and assigns, in trust, nevertheless, that said residuary legatees, upon the decease or marriage of said testator's wife, W. D., should out of the residue of said estate pay unto L. E. the sum of . That said testator did by said test will and tes- tament appoint said A. B., C. D., and G. H. executors of said will. That on or about the day of , said execu- tors duly proved said will, and took upon them- selves the execution thereof. That said W. D., wife of said testator, died on or about the day of , last past. That said legacy thereupon became payable, and the sum of , part thereof, is now due and owing to said L. E. That said L. E., by a certain bond or obligation, bearing date the day of , became bound to E. F. in the sum of , bearing interest, etc., with the condition that the same should become void upon payment thereof to said E. F., or his legal representatives, on the day of , next ensuing, and now past. That said L. E. has not paid ( of) the same (nor any part thereof). That, in consideration of the premises, said L. E. does by these presents hereby grant, convey, assign, transfer and set over the sum of , so given and bequeathed in and by said last will and testament, together with all interest to accrue or become payable for said sum, from the day of last past, and all his estate, right, title, interest, claim and demand whatsoever, both in law and equity, in said sum, part of the legacy aforesaid t to E. F., his heirs and assigns. ASSIGNMENT. 105 That said L. E. does by these presents make, constitute and appoint said E. F. his true and lawful attorney, irrevocable, for and in his name, place and stead, in to his own use, and at his own cost and expense, to demand, sue for and recover the same from said executors or their survivors, and upon payment and receipt of the same, or any part thereof, to release, receipt for, and acquit- tance give, in such manner as he may lawfully and properly do. In witness, etc. Assignment Letter of Attorney. Know all men by these presents : That P. R. and D. D., deceased, in his lifetime, were partners, as R. & D., and as such were, and till are, indebted to A. R. in the sum of , for, etc. That said A. R. is administrator of the estate and effects of said D. D. That said A. R., in consideration of (the re- ceipt of which is hereby acknowledged), do by these presents make, appoint and constitute said P. R. his assignee and attorney, in this behalf, in his own name or the name of said deceased and my- self, or otherwise, as he may lawfully see fit in the premises, and to his own use and benefit to ask, demand, sue for and receive all and singular such debts as may or shall be due or anywise belong- ing to said D. D. ; and upon payment and receipt of -the same to release, receipt for, discharge and acquit the same. In witness, etc. (Signed) A. R. Assign ment Money . On Account. Know all men by these presents : That A. B. , in consideration of the sum of , to him in hand paid, dobs hereby assign, transfer and set over all his title and interest in and rights under an account for ( state what) inthesum of ,here- rtnto annexed, and all other sum and sums of money remaining due and payable upon said ac- count, unto E. F. , with full power to ask, demand and receive the same (at his own costs and expenses) to his own use, and to give discharges and receipts for the same, or any part thereof. That there is due said A. B., on said account, at the date of these presents, the sum of , and that he has not received or discharged the same. In witness, etc. Assignment Money. Due for Freight. Know all men by these presents : That A. B.,in consideration of , does hereby grant, assign, transfer and set over to E. F. , all his right, title and interest in and to one full and equal tenth part of all such sums of money as are remaining due and owing from all persons for or onaccpunt of the steamer S. R., M. R., master, for all freights, hire and service of said vessel, now due and payable to said A. B., for the tenth part of said steamer, of which he is the owner. That there is due and payable to said A. B., at the date of these presents, by reason of the prem- ises, the sum of dollars. (Add power to collect when required.) Another. Know all men by these presents : That A. B. is entitled to the several sums of money hereinafter mentioned, due and owing on account of freight, etc. (imported in the ship S. in her late voyage from to ; or shipped via the transportation company of , from to .) That the same and every part thereof is due and unpaid. That said A. B., in consideration of (the re- teipt of which is hereby acknowledged), does by these presents assign, transfer and set over all his right, title and interest in and to said sum, to E. F., with full power (at his own costs and expenses), and to his own use to ask, demand, sue for, collect, receive and receipt for the same. In witness, etc. Assignment Mortgage. Know all men by these presents : That I, A. B.,the within-named mortgagee, for a consideration of dollars (if paid, say, the re- tipt 9f which is hereby acknowledged), hereby as- sign, transfer, and set over unto E. F., his heirs and assigns, the within-named instrument of mortgage, and all the real estate, with the appur- tenances therein mentioned and described, to have and to hold the same forever. Subject, nevertheless, to the equity and right of redemp- tion of tne within-named C. D., his heirs and assigns therein. In witness, etc. For form of "ACKNOWLEDGMENT," see that title. Assignment Mortgage. To Secure Payment of Notes, etc. Know all men by these presents : That A. B. is the owner of three notes, each bearing date the day of , etc., made and signed by C. D., as principal, and S. Y.,as surety one for the sum of dollars ; one, etc., paya- ble to said A. B., on the day of , etc., and each bearing interest at the rate of per cent. per annum and secured by a mortgage of said C. D. upon , etc., which is recorded in the office of , etc., in Mortgage Record, Vol. , page . That E. F. has purchased said premises, sub- ject to the said mortgage and notes, and for the removal and cancellation and satisfaction of the same has sold and conveyed unto said A. B. all that part and parcel of land, situate in , and described as follows, etc. That, in consideration of the premises, the said A. B. does by these presents assign, transfer and set over unto said E. F. the aforesaid mortgage and notes and all his right, title and interest in and to the same, without recourse upon him, the said A. B. , in any event, and subject to all and every agreement, condition, covenant and stipu- lation therein contained. In witness, etc. For form of "ACKNOWLEDGMENT," see that title. Assignment Mortgage. In Fee. Know all men by these presents : That A. B. , on the day of , for a consid- eration thereinmentipned, conveyed unto C. D. a (lot or) tract of land, situated in , and described as follows, to wit (describing it by metes and bounds), with the conditions, etc. (us in the mortgage). That said premises are free and unencumbered. That C. D., in consideration of (the receipt of which is hereby acknowledged), does by these presents assign, transfer and set over afl his title and interest in and rights under said conveyance, to E. F., subject, nevertheless, to all the cove- nants, conditions and agreements therein men- tioned, together with all rights of redemption (and saving and excepting, etc.) In witness, etc. For form of "ACKNOWLEDGMENT," see that title. Assignment Mortgage Of a Lease for Years. Know all men by these presents : That A. B.,by a lease bearing date the day of , and for a consideration of , did let unto C. D. the premises situate in , and de- scribed as follows, to wit (describing it), for a term of years, at the yearly rent of , payable, etc. That said C. D. did, on the day of , mortgage the same to G. H., to secure the pay- ment of , etc. That there is due and unpaid, at the date of these presents, on said indebtedness, the sum of . That said G. H., for a consideration of (th receipt of which is hereby acknowledged), does by these presents grant, sell, assign, transfer and set over unto E. F., all his right, title and interest in and to all said debt, together with said mort- gage securing the same, with full power (at his own costs and charges), and for his own use and benefit, to ask, demand, sue for, enforce, collect, receive, receipt for, release and acquit the same In witness, etc. For form of "ACKNOWLEDGMENT," see that title. Assignment Mortgage and Bond. Clause, when intended as Collateral Security. Know all men by these presents: 106 ASSIGNMENT. That in consideration of the mm of dollars, the receipt of which is hereby acknowledged, I herby assign, transfer, and set over to E. F. (of ), the mortgage, bearing date the day of , executed by A. B. and his wife W. (of ), unto C. D. (of ), recorded in the (county clerk's, er recorder, or register of deeds') office, in mortgage record , page , together with the bond or obligation (therein described, and the money due and to grow due thereon, with interest ; or, bearing date the day aforesaid, executed by said A. B. to said C. D. in the penal sum of dollars, conditioned for the pay- ment of dollars, and secured by the above mort- gage on the day of , with interest). That I hereby covenant that the sum of dollars, with interest from the day of , is DOW due and owing on said bond and mortgage, and that I have good right to assign the same. In witness whereof, etc. [ When the bond and mortgage is assigned as col- lateral security, insert: That this assignment is, nevertheless, made upon the express condition that if said C. D. (or his legal representatives) shall well and truly pay or cause to be paid to said E. F. (or his legal representatives) the sum of dollars on or before the day of , with interest from the date hereof, this assignment shall be void and of no effect ; it being made for the pur- pose of securing the payment of said sum and for no other purpose whatever. That in case said E. F. (or his legal representa- tives) shall collect and receive the money due on said mortgage and bond hereby assigned, he shall, after retaining the sum of dollars, with interest thereon, and his reasonable costs and charges in that behalf expended, pay all surplus to said C. D. (or his legal representatives). In witness whereof, etc. Assignment Xotes. Assignor to be liable. Pay to P. E. (Signed} A. B. Pay to the order of P. E. (Signed) A. B. Pay to P. E. or order. (Signed) A. B. Assignor not to be liable. See "ASSIGNMENT," -without recourse, below. Pay to P. E., without recourse. 4 A. B. Pay to the order of P. E., without recourse. A. B. Pay to E. F. or order, without recourse. A. B. Assignment Notes. In Satisfaction of a Debt. Know all men by these presents: That A. B., by his promissory note, dated the i day of , promised to pay C. D. , on the day of , with interest at the rate of per cent, per annum. That said sum is due and owing said A. B. That said C. D., in consideration of (to him in hand paid), does by these presents grant, as- sign, transfer, and set over unto E. F. the said note, and all interest accrued and to accrue there- on, together with all his title and interest in and rights under the same, for the following uses, purposes, and intents, viz.: That out of the proceeds of said note said B. F. shall i. Retain for costs and charges of collection the sum of . a. Retain for his own use the sum of . 3. Return and pay unto said C. D. the surplus amount of said moneys. Etc., etc. In witness, etc. Assignment Order. For value received, I, the within-named A. B., hereby assign, transfer, and set over all my title and interest in and rights under the within writ- ten order, and the moneys thereby secured unto . F. Dated this day of . A. B. ( Witnesses present.) Assignment Partnership. Mutual Of Bad Debts. Know all men by these presents : That A. B. and C. D. were, unto the day of a-These are the words generally used, 3 Mass. 225 ; 12 Id. 14 ; and are acjded to an indorsement in order to of last past, partners engaged in the business , at - , under the firm-name of B. & D. That several debts are still standing out owing and unreceived by said partnership, and by said parties accounted desperate and doubtful, sched- ules of which are hereunto annexed and herein- after referred to. That by reason of the premises, and for the considerations hereinafter set forth, said parties do by these presents assign, transfer, and set over to each other for their respective and several uses and benefits said debts, as follows : To said A. B. , all the debts described, men- tioned, and referred to in the schedule hereunto annexed, marked A (or numbered one [i]). To said C. D., all the debts described, men- tioned, and referred to in the schedule hereunto annexed, marked B (or numbered two [2] ). That said debts remain due and unpaid (except, etc.). That said debts are assigned without recourse for any cause whatever, and are to be collected at the cost and expense of the respective as- signee, and in such manner as said assignee may lawfully elect. In witness, etc. Assignment Partnership. Partnership Interest or Share. Know all men by these presents : That A. B., C. D., and E. F. were, on the - - day of - , partners engaged in the business of - , at - , under the firm-name and style of A. B. & Co. That by the articles of agreement entered into as such partners, it was stipulated (among other things) that on the death of a partner the survivors should pay his executors or administrators for his share, and become bound to - , pay and in- demnify them for the same, and that thereupon they should assign, transfer and set over unto said partners said deceased's share. That on the - day of - said C. D. died. That by the last will and testament of said de- ceased, E. X. and T. R. were appointed execu- tors thereof. That on the - day of - , said executors proved said will and accepted the trust therein in them reposed. That the value of said share, upon a faithful and true inventory, and full and correct account- ing, is ascertained to be of the value of - . That said A. B. and E. F. have given a bond in the sum of - to indemnify said executor. 1 ; against all and every liability and obligation whatsoever by reason of said deceased being of and interested in said partnership concern. That said E. X. and T. R., by reason of the premises and in consideration of the sum of -- (the receipt of which is hereby acknowledged) do by these presents (subject, however, to the approval of the - court) grant, sell, assign, transfer, and set over unto said A. B. and E. F. all the right, title, and interest of said C. D., deceased, in and to his share in all estate and effects of said partnership concern ; subject, however, to all the agreements conditions, and stipulations in said partnership agreement contained, and all duties and liabili- ties imposed thereby, or by reason thereof. In witness, etc. Assignmeii t Par tnersli i p Property. Upon Settlement. Know all men by these presents : That the copartnership heretofore existing be- tween A. B. , of - , and C. D., of - , under the firm-name and style of B. & D., is this - day ol - dissolved by mutual consent. That said A. B. does hereby sell, assign, trans- fer, and set over unto said C. D. his half part of all the goods, wares, merchandise, rights, credits, and effects, stock in trade, accounts, notes, bills, bonds, rights in action, claims and demands, be- longing or owing to said copartnership, IN TRUST, NEVERTHELESS, to sell said property as he may think proper, but not upon a credit exceeding - days ; to collect, demand, sue for, and receive all avoid incurring any liability ; Chitty Bills, 179 ; 7 Taunt. 160; i Carr. N. Y. 538; 3 Cranch. 193; 7 Jd. 159; 12 Mass. 172; 14 S. & R. 325. ASSIGNMENT. lo? sums of money due or to become due upon said accounts, notes, bills, bonds, rights in action, claims and demands, and with the proceeds thereof to pay and discharge all the debts and obligations of said firm, if the same shall be suffi- cient therefor ; and the surplus, if any there be, to pay one-half part to said A. B. or his legal representatives. That said A. B. does hereby make, constitute and appoint said C. D. his true and lawful attor- ney irrevocable, to sell said property and effects, and all his said interest therein ; to ask, demand, sue for, collect and receive all debts evidenced as aforesaid, or otherwise, and compound the same and prosecute suits for the recovery thereof, at his discretion ; to defend any and all suits that may be brought against said firm ; to make, ex- ecute, deliver and acknowledge all necessary deeds, conveyances, releases, receipts and dis- charges in the premises, and generally to do any and every act and thing requisite and necessary to secure a full, entire, complete and speedy set- tlement of all the business and affairs of the said firm ; hereby ratifying and confirming any and everything which the said C. D. may do in the premises. That the said C. D. will sell the aforesaid prop- erty to the best of his ability, and for the best price he can obtain therefor, and will use reason- able diligence to collect all accounts, notes, bills, bonds, rights in action, claims and demands due said firm ; and that he will faithfully apply the proceeds of such sales and claims in accordance with the above recited trust. That the said A. B. will, after the entire pro- ceeds of said property and effects have been faithfully applied to the payment of the debts, liabilities and obligations of said firm, pay and satisfy the one-half part of any remaining debt, liability or obligation. In witness whereof, etc. Assignment Patent Right. See title PATENTS, post. Assignment Personal Property. Referring to Partner Bill of Sale, etc. Know all men by these presents : ThatC. D., by his bill of sale, hereunto attached (or annexed), bearing date the day of , did, for the consideration therein expressed, grant, bargain, sell, transfer and deliver unto me, the un- dersigned, A. B., the goods, chattels and effects therein described (or the following'goods, chattels and effects, viz.) and all his title and interest in and rights under the same, to have and to hold the same unto me, my heirs and assigns forever. That said goods, chattels and effects are now in the building No. , on street, in the city of , etc. That I, the said A. B., for a consideration of dollars (;/ paid, say the receipt of which is hereby acknowledged), do bargain, sell, assign, transfer and set over unto E. F., all my title and interest in and rights under said bill of sale, and all the goods, chattels and effects therein men- tioned and described, to have and to hold the same, unto said E. P., his heirs and assigns forever. In witness whereof, etc. Assignment Personal Property. As Collateral Security. Know all men by these presents : That A. B. is indebted to C. D. in the sum of , for (upon or on account of) due and pay- able the day of next. That said A. B., in consideration of the prem- ises and to secure the payment thereof, does by these presents assign, transfer and set over unto aid E. F. all his right, title and interest in and to the following goods and chattels, to wit : Description of Goods. Value. That, in case of default in the payment of said indebtedness, at the time when the same shall becomedue, or of any other sum or sums advanced said A. B. from time to time by said E. F., then said E. F., or his assigns, may and are hereby authorized to sell said goods and chattels (for per cent, less than the values above given them, or at their discretion, or at such times, in such a manner and for such sums as they will bring) (at public sale, on days' notice thereof, to the highest bidder), and from the proceeds thereof, after deducting the neces- sary costs and expenses, to reimburse himself for all sums that shall be due him from said A. B. , and thereupon pay the surplus, if any, to said A. B. That if said A. B., or his legal representatives, shall pay or cause to be paid all sums at the times and according to the stipulations hereim stated and made, then this assignment shall be void and of no effect. In witness whereof, etc. Assignment Prizes. Taken at Sea. Know all men by these presents : That I, the undersigned, M. R., master of the privateer P. R.,in consideration of (the receipt of which is hereby acknowledged), do by these pres- ents assign, transfer and set over unto E. F., all my right, title and interest in and to all sums of money due, owing.'payable or belonging to me, for my shares in, to and out of two several ships, with their appurtenances, lading and cargoes one called the S. and the other the V. both of them having been taken by said privateer, at , and since condemned as lawful prizes, to have and to hold the same to his own use and benefit. That I do hereby make, constitute and appoint said E. F. my true and lawful attorney, irrevoca- ble, to ask, demand, receive and receipt for the same, hereby ratifying and confirming all that my said attorney may lawfully do or cause to be done in the premises. In witness whereof, etc. Assignment Recipe, or Formula, or Compound. Know all men by these presents : That I, the undersigned, A. B., am the inventor and proprietor of a method of manufacturing a valuable and marketable compound known as (Description hereunto attached). That, for the consideration, hereinafter men- tioned, I do hereby grant, bargain, sell, assign, convey, transfer and set over all my right, title and interest in said compound, unto E. F. (of ), together with the exclusive right, against me, my heirs, executors and administrators, to manufacture and sell said compound forever; Provided, always, upon the full, true, uninter- rupted and continued payment of the considera- tion hereinafter mentioned, therefor. That said E. F. shall, in consideration thereof, pay unto me, or my legal representatives, the sum of dollars per year, for years, as fol- lows (stating times of payment) (and in default thereof shall forfeit all rights under this assignment.) That I do, for myself, my heirs, executors and administrators, covenant and agree to and with said E. F.,his heirs, executors, administratpis and assigns, that said recipe or formula contains the full, true and precise description of the pro- portions of the elements of said compound, with the directions for manufacturing the same ; th/it I have not heretofore, and will not hereafter, without the consent of said E. F., directly or in- directly disclose the secret of the composition thereof, and will not, without such consent, com- pound, manufacture or sell, or in anyway permit or be interested in the compounding, manufac- ture or sale of the same, or any compound formula or recipe containing the same or similar elements or ingredients, and designed for a like purpose. In witness whereof, etc. Assignment Recourse. See ASSIGNMENT NOTE, above, and ASSIGNMENT WITHOUT RECOURSE, below. Assignment Security Clause. See ASSIGNMENT MORTGAGE AND BOND, above. COLLATERAL SECURITY CLAUSE. (Add after describing the property assigned,) Provided, however: Upon the condition, however, etc., or Subject, nevertheless, to the condition, that if a certain promissory note 'or other debt, or evi- dence of debt, describing it) for the sum of dol- lars, given (or due) from said A. B. to said E. P., log ASSIGNMENT AUTHORITIES. bearing date the day of , is well and truly paid, according to the terms or tenor thereof, then this assignment shall be void. Assignment Servant. See ASSIGNMENT APPRENTICE, above. In consideration of the sum of dollars, the receipt of which is hereby acknowledged, I, the undersigned A. B., do hereby assign, transfer, and set over the within-named servant to serve B. P., his executors, administrators, and assigns in the manner and for the residue of the term within-mentioned. (Signature, Master) M.M. Witnesses, etc. (Signature, Servant) S. T. (Signature of New Master) M. R. Assignment Shares of Stock. Know all men by these presents : That I, the undersigned, for a consideration of dollars hereby assign all my title and interest tn and rights under the shares, scrip, and capital stock and property of the company and corpora- tion known as the C. Y. Company of , in the State of , and described as follows : Abstract of Shares of Capital Stock, etc. That I hereby covenant and agree with said E. F.,and his legal representatives, that at the re- quest of him, or them, I, and my legal representa- tives, shall and will at any time hereafter execute any instrument or writing which shall be neces- sary to vest completely in him or them all my said right, title, and interest in and to said prop- erty ; and to enable him or them to possess, con- trol, enjoy, and transfer the same, or any part thereof. In witness whereof, etc. Another. For value received, I, A. B. (of ), assign all my title and interest in and rights under shares (numbered consecutively from 10736 to 10746), in the Bank (or company) to E. F. (of ), and constitute him, his assigns and substitutes, my attorneys, with full power to receive in his or their names, certificates for said shares, hereby obliging myself, at his or their request, to do all necessary matters and things for the more effect- ually transferring the said shares to him or them. Witness my hand, etc. A. B. Executed and acknowledged before me this day of- , A. D. . N. P., Notary Public, in , county . Assignment Wages. General Form. Know all men by these presents : That I, A. B. (of ), in consideration of dollars, the receipt of which I hereby acknowl- edge, do hereby assign, transfer, and set over to E. F. (of ), all claims and demands which I now have, and all which at any time between the date hereof and the day of next, may or shall have against C. D. for all sums of money due or to become due to me for services as . That I do hereby appoint and constitute said E. F. and his assigns my attorney irrevocable to do and perform all acts, matters and things in the premises, in like manner and to all intents and purposes as I could if personally present. In witness whereof, etc. Assignment Wages. Sailors. Know all men by these presents : That A. B. is indebted to E. F. in the sum of for (upon or on account of) , which was due and payable on the day of last past. That there is due said A. B. for his months' ervices on board the ship S., M. R., master, the sum of . That by reason of the premises, in satisfaction and discharge of said indebtedness, and for the further consideration of , the said A. B. does hereby assign, transfer, and set over unto said E. F. all his right, title, and interest in and to said sum of dollars, the wages aforesaid (without recourse, etc.) That said A. B. does hereby make, constitute, and appoint said E. F. and his assigns his true and lawful attorney, in his name or otherwise, to sk, demand, receive, and receipt for said wages. In witness, etc. Assignment Without Recourse. For value received, I hereby assign and trans- fer I state what), together with all my title and in- terest in and rights under the same to E. F.: Providing, always, that this assignment is with- out recourse. (Signed) A. B. ( Witness) G. H. Assignment of Dower. See DOWER; WIFE. Assignment of Errors. See PRACTICE. Assumpsit. See PRACTICE. Assurance. See CONVEYANCING ; INSURANCE. Assured. See INSURANCE. Atheist. See PERSONAL RELATION ; PRACTICE. Attainder. See TREASON. Attempt. See CRIMINAL LAW. Attestation. See CONVEYANCES ; WRITINGS. Attesting Witness. See CONTRACTS ; CONVEY- ANCES ; WITNESS. Attorneys. See AGENCY. Attornment. See CONTRACTS. Attorney-General. See OFFICE AND OFFI- CERS. Auction. See SALES. Auctioneers. See AGENCY ; AGENTS. Aiidita Qnerela. See PRACTICE. Auditor. See OFFICE AND OFFICER. Authentication. See PRACTICE. AUTHORITIES. See EVIDENCE; LAW. AN AUTHORITY is an enactment or an opinion relied upon as establishing or declaring the rule of law which is to be applied in any case. The opinion of a court, or of counsel, or of a text-writer, upon any question, is usually fortified by a citation of authorities. The authority of the constitution and of the statutes and municipal ordinances are para- mount; if there is any conflict among these the constitution controls, and courts declare a statute or ordinance which conflicts with the former to be of no authority. The decisions of courts of justice upon simi- lar cases are the authorities to which most fre- quent resort is to be had; and although in theory these are subordinate to the first class, yet in practice they continually explain, en- large, or limit the provisions of enactments, and thus in effect largely modify them. The word authorities is frequently used in a restricted sense to designate citations of this class. The opinions of legal writers of the vast number of treatises, commentaries, and text- books, are another and still more subordinate class of authorities. Opinions of a text-writer upon any particular point must be considered not merely as the opinion of the text-writer, but as the supposed result of the authorities to which he refers. If, on examination of those authorities, they are found not to establish it, his opinion is disregarded.* Where, however, the writer declares his own opinion as founded upon principle, the learning and ability of the writer, together with the extent to which the reason which he assigns commend themselves to the reader, determine the weight of his opinion. In estimating the learning and ability of an author, his judicial or non-judicial station is not a just test of his authority, though it may be borne in mind. b An authority may be of any degree of weight from that of absolute conclusiveness down t the faintest presumption. a-3 B. & P. 301. b-See 3 T. R. 64, 241; Ram. Judgments, 93. AUTHORITIES. 109 Abbreviations are one or more letters used for a word, thus : Bl. Comm., for Blackstone's Commentaries, U. S. A., for United States of America. They are also arbitrary marks or signs, thus: $ for dollar, and the like. Christian names, articles of trade and commerce, quantities, qual- ities, as well as text-books, reports, etc.,' are frequently represented by abbreviations often understood by the individual, professional, tradesman, etc., only. In matters of impor- tance, as accounts, agreements, amounts, dales, names, qualities, and the like, abbreviations should be avoided, as tending to misconstruc- tion, misunderstanding, and controversy ; a yet, if an abbreviation is adopted in the inception of any transaction, it should be earned through to its final consummation. Abbreviations should approach as nearly as possible to the outlines of the original word. Tables of abbreviations, etc., of authorities in general use, and cited in this volume, may be found in the various law catalogues, legal bibliography, reports, etc. Authentication is a proper or legal attesta- tion. Acts done with a view of causing an instrument to be known and identified. An act or attestation of the authenticity of any in- strument, copy, or writing. See ACKNOWL- EDGMENT; EVIDENCE. AUTHENTICATION FORMS. Authentication General Form. United States of America, State of -, county, ss : I, the undersigned (here insert official title}, of , in , hereby certify that (here state the sub- ject of authentication), In testimony whereof, I have hereunto set my hand and official seal, at my office in , this day of , A. D. . {Seal. ] (Signature and official title) Authentication Copy of Account. State of , county, ss. I hereby certify that the (above, or foregoing, or within) is an exact (exemplified) copy of the (ad- ministration, or other) account of A. B. (or A. R., administrator of the estate of D. D., deceased, or E. X., executor of the last will and testament of D. D., de- ceased, audited, passed, and filed in the office of the , of county, etc.) In testimony whereof, etc. [Sea!.] (Signature and official title.) Authentication Copy on File. State of , county, ss. I hereby certify that I have compared the above, or annexed, or foregoing, or within) copy and indorsements thereon with the original (state what}, on file in this office, and that the same are full, true and correct transcripts of the same. In testimony whereof, etc. [Seal. } (Signature and official title) . Authentication Copy of Inventory. State of , county, ss. I hereby certify that the above, etc., is an exact copy of an inventory of (state what). In testimony, etc. Authentication Copy of Record. State of , county, ss. I hereby certify that the above (or annexed, or foregoing, or within) has been carefully compared with, verified, and is a correct transcript of the whole of (state what), as the same appears of re- cord, Vol. , pages , of (state the kind or nature of record), in the office of the , of , in . In testimony, etc. -Se 4 C. & P. $i ; p Co. 48. Authentication Copy of Will. State of , county, SB. I hereby certify that the above (or annexed, etc.\ is an exact copy of the last will and testament of D. D., deceased, which was duly admitted to probate, and is filed of record in the office of , of , etc. In testimony, etc. Authentication Official Character. State of , county, ss. I, O. R., a (giving official title), in and for said county and State, do hereby certify that O. C., whose name is subscribed to the above (or an- nexed, or foregoing, or within state what), is &(statt what, giving his official title, etc , in full), in and for , and is duly qualified and acting as such That I am well acquainted with the handwriting of said O. C., and that his signature to said in- strument is genuine. In testimony, etc. Authentication Transcript of Judg- ment. State of , county, ss. I hereby certify that the above is a full and correct transcript of a judgment entered on the day of , in the court, in favor of A. B., in an action wherein A. B. was plaintiff and C. D. defendant, as the same appears in Judgment Record No. , page . In testimony, etc. Citation of authorities is the reference to the text of the acts of legislatures, treatises, text-books, reports of causes decided by the courts, for the purpose of supporting the pro- positions advanced, and to offer facilities for their examination and comparison upon partic- ular subjects. The knowledge of the law is to a great degree the knowledge of precedents. This makes a frequent reference to such precedents necessary, in order to confirm a statement of the law. Constant reference to enacted law is absolutely necessary. Reference to works of legal writers is also necessary, to elucidate doubtful points of law. The laws of the gen- eral government are generally cited by their date, as: Act of June 15, 1876; Act of 1876, Ch. 170, U. S. Statutes at Large, etc. In most States reference is had to the General Statutes. Text-books and reports of cases decided in the various courts are cited by the number of the volume and page. Sometimes the book is cited by paragraphs or sections. Law is that which is laid down or estab- lished by the supreme power of a State, by the legislature. It is the aggregate of ihose rules and principles of conduct which the governing power in a community recognizes, and which it will enforce and sanction, and by and ac- cording to which it will regulate, limit, or pro- tect the conduct of its members. It includes not only the acts of the legislature and consti- tution but reports of adjudicated cases, text books, treatises, etc. Leading cases are those cases decided by a court of last resort which decides some par- ticular point in question and to which reference is constantly or frequently made, for the pur- pose of determining the law in similar cases. The character of a leading case depends upon its priority, the character of the court, the amount of consideration given it, and its free- dom from collateral matters and questions. 110 AUTHORITIES BAILMENTS. Maxims are principles of law universally admitted as just, and consonant with reason. Maxims of law are similar to axioms in geom- etry.* They are authorities and principles and pirt of the general customs or common law of i he land, and are of the same strength as statute law, when the judges have decided what is a in ixim; and this belongs to the judges and not i he jury. 4 Maxims of the law are considered law. 6 Precedents are those legal acts, decisions, formulae, instruments, etc., which are deemed worthy to serve as rules or models for subse- quent cases. It is much better to stick to the known general rules than to follow any one particular precedent which may be founded on reasons unknown to us. r A former decision is in general to be followed, unless "manifestly absurd and unjust " ; and in the latter case it is declared, when overruled, that the former sen- tence was not law, not that it was bad law. The consideration and deliberation upon which it was made is an important element.* The length of time during which it has been acted on as; a rule of property is to be considered, and the length of time it has stood unquestioned ; since where a rule declared to be law, even by an in- ferior tribunal, having been habitually adopted and acted upon by the community, becomes thus imbedded in the affairs of men, and it may frequently be better to enforce it as it is than to disturb or unsettle it. In order to give pre- cedents a binding effect there should be a current of decisions. 11 The antiquity and fre- quency of their adoption in questions of prop- erty might unjustly affect vested rights by a departure from them, and this, therefore, is very cautiously done. Written forms of procedure which have been sanctioned by the courts, or by long professional usage, and are commonly followed, are also precedents. 1 See PLEADING. Principles are truths or propositions so clear that they cannot be proved or contradicted, unless by propositions which are still clearer. Principles are of two kinds universal and first principles. Universal principles are those known as axioms and maxims. First principles are those which, First, are so clear that they cannot be proved by anterior or more manifest truths ; Second, are almost universally received ; Third, are so strongly impressed on our minds that we conform ourselves to them whatever may be our avowed opinions. Courts recog- nize but do not establish principles; thus "the right to defend one's self continues as long as there is an unjust attack," was a principle long before it was ever decided by a court. C-i Bl. Comm. 68. d-Termes de la ley, Doct. & Stud. Dial, i Ch. 8. e-Co.Litt. 11,67, 4 Co. ; see Plowd. 27, b. f-Cas. temp. Tabot, 26: i Bl. Comm. 70. g-4 Co. 04. h-Cro. Car. 528 ; Cro. Jac. 386 ; 8 Co. 163. i-Stephen PI. 392. j-Co. Litt.97, 183 ; i Bl. Comm. 70 ; 7 Toull. n. 566. k-5 Johns. 239. 1-2 Cranch. 187, 238; 4 Dallas, 416; 7 Wheat. 273, 335 ; i Denio, 376; 2 Comm. 85. 90; 6 Wend. 475 ; 9 Mod. 66. m-3 Wheat. 610 ; 9 Ves. Ch. 347. n-2 Esp. 700 ; 5 Cranch. 535 ; 6 S. & R. 484 ; 3 Wnd. 173; i Gray, 175. 0-2 Bl. Comm. 451. See Id. 395. A delivery of a thing in trust, for some special Reason is that power by which we distin- guish truth from falsehood and right from wrong, and by which we are enabled to com- bine means for the attainment of particular ends. Reason is the soul of the law, for when the reason ceases the law ceases.) A person deprived of reason is not, in many cases, crim- inally responsible for his acts, nor can he enter into any contract. Seals are impressions upon wax, wafers or some tenacious substance capable of being im- pressed. 11 The public seal of a foreign state proves itself, and public acts, decrees and judg- ments exemplified under this seal are received as true and genuine, 1 if such state has been acknowledged within the jurisdiction within which the forum is located. 01 The seal of a notary public is taken judicial notice of the world over." See SEALS. Authority. See AGENCY; AUTHORITIES; CON- TRACTS; GOVERNMENT. Auter fois Acquit. See CRIMINAL LAW. Anter fois Attaint. See CRIMINAL LAW. Aver. See PRACTICE. Average. See INSURANCE. Averment. See PLEADING. Avoidance. See PLEADING. Avordnpois. See WEIGHTS AND MEASURES. Avow. See PRACTICE. Avowry. See PLEADING. Avulsion. See REAL PROPERTY. Award. See AGENCY ; ARBITRATION. Away-Going Crop. See CROP ; IMPLEMENTS ; PERSONAL PROPERTY. Back- Water. See REAL PROPERTY ; WATER. Back-Side. See CONVEYANCES; REAL PROP- ERTY; YARD. Badge. See OFFICE AND OFFICERS. Baggage. See BAILMENTS; CARRIERS; COMMON CARRIERS OF PASSENGERS. Bail. See PRACTICE. Bail-Bond. See PRACTICE. Bail-Piece. See PRACTICE. Bailable Action. See ACTION ; PRACTICE. Bailable Process. See PRACTICE ; PROCESS. Bailee. See BAILMENTS. Bailiff. See OFFICE AND OFFICER. Bailiwick. See PRACTICE. BAILMENTS. See AGENCY; CONTRACTS. BAILMENT is a delivery of personal property by one party to another, to be held according to the purpose or object of delivery, and to be returned or delivered over when the purpose or object of the delivery is accomplished. It is the delivery of goods in trust upon a contract, either expressed or implied, that the trust shall be faithfully executed on the part of the bailee. The Bailor is the person delivering the goods. The Bailee is the person to whom the goods are delivered. Practically, bailments are of three kinds : I. Bailments which are for the benefit of the bailor, or some person whom he represents. object or purpose, and upon a contract, express or im- plied, to conform to the object or purpose of the trust. Story Bailm. 2. See Merlin Repert, Bailnt. A deliv- ery of goods in trust upon acontract, express or implied, that the trust shall be duly executed, and the goods re- stored by the bailee as soon as the purposes of the bail- ment shall be answered. 2 Kent Comm. 559. A delivery of goods on a condition, express or implied, that they shall be restored by the bailee to the bailor, or accord- ing to his directions, as soon as the purposes for which they are bailed shall be answered. Jones Bailm. i. BAILMENTS. ill 2. Bailments which are for the benefit of the tiailee, or some person represented by him. 3. Bailments which are for the benefit of both parties. There are three degrees of care and dili- gence required of the bailee, and three degrees of negligence, for which he is responsible, according to the purpose and object of the bailment. Thus, in the first class, the bailee is required to exercise only slight care, and is re- sponsible only for gross neglect ; in the second, he is required to exercise great care, and is responsible even for slight neglect; in the third, he is required to exercise ordinary care, and is responsible for ordinary neglect. Diligence is the doing things in the proper time. b The following are the three degrees of diligence : b 1. Ordinary diligence is that degree of dili- gence which men of ordinary prudence exercise in respect to their own concerns. 2. Great or extraordinary diligence is that which very prudent persons take of their own concerns. 3. Slight diligence is that degree of diligence which men, habitually careless, or of little pru- dence, generally exercise in the management of their own business. Negligence consists of the followingdegrees : 1. Ordinary negligence is the want of ordi- nary diligence. 2. Slight negligence is the want of great diligence. 3. Gross negligence is the want of slight diligence. There is a supplementary class of bailments, founded upon the policy of the law, in which the bailee is responsible for loss without any neglect on his part, being, with certain exceptions, an insurer of the safety of the thing bailed. When a person receives goods or property of another to keep without recompense, and he acts in good faith, keeping them as his own, he is not answerable for the loss or injury, as he derives no benefit from the bailment; he is responsible only for bad faith or gross negli- gence. But this obligation may be enlarged or decreased by a special acceptance ; a and a spontaneous offer on the part of the bailee in- creases the amount of care required of him ; e knowledge by the bailee of the character of the goods/ and by the bailor of the manner in which the bailee will keep them,* are important circumstances. So, when a person receives an article, and undertakes gratuitously some com- mission in respect to it, as to carry it from one place to another, he is only liable for its injury or loss through his gross negligence. It is l>-Story Bailm. ; 5 Kas. 433,467. c-Edw. Bailm. 35, 67-74 ; 17 Mass. 479 ; n Mart. 402 ; 38 Me. 55 ; 3 Mas. C. C. .; 2 C. B. 877; 4 Nev. & M. 170: i Ld. Raym. 913 ; see Svory Bailm. \ 64; C. C. Rob. Adm. 316. d- 2 Kent Comm. 565; Story Bailm. \ 63; Willes, 118; 2 Ld. Raym. 910 ; 3 Hill, 9 ; 7 Id. 533. e-2 KentOtmm. 565. f-Jones Bailm. 38. ff- 3 8 Me. 55. h-6 C. Rob. Adm. 141 ; 3 Mas. C. C. 132 ; 6 N. H. 537, i Const. 117; Edw. Bailm. 102-108; as to the amount of skill tuch bailee must possess and exercise, see 2 Kent Comm. }09 ; Story Bailm. Jg 174-178 ; u M. & W. 113 ; 5 T. R. ft enough if he keep and carry it as he does his own property. 11 The borrower, on the other hand, who re- ceives the entire benefit of the bailment, must use extraordinary diligence in taking care of the thing borrowed, and is responsible for even the slightest neglect. 1 He must apply it only to the very purpose for which it was borrowed ;J he cannot permit any other person to use it ; k he cannot keep it beyond the time limited; 1 and cannot keep it as a pledge for a demand otherwise arising against the bailor. 10 In the third class of bailments the benefits derived from the contract are reciprocal ; it is advantageous to both parties. In the case of a pledge given on a loan of money or to secure the payment of a debt, the one party gains a credit, and the other security, by the contract. And, in a bailment for hire, one party acquires the use of the thing bailed, and the other the price paid therefor; the advantage is mutual. So, in a bailment for labor and services, as when one person delivers materials to another to be manufactured, the bailee is paid for his services, and the owner receives back his prop- erty enhanced in value by the process of manu- facture. In these and like cases the parties stand upon an equal footing ; there is a perfect mutuality between them. And, therefore, the bailee can only be held responsible for the use of ordinary care and common prudence in the preservation of the property bailed.* The diligence required is proportioned to the value of the property bailed, or the delicacy of the operation to be performed.* A man would not be expected to take the same care of a bag of oats as a bag of gold ; or a bale of cotton, as a box of diamonds ; or a load of wood, as a box of rare paintings; or a rude block of marble, as an exquisitely sculptured statue. The bailee should proportion his care to the injury or loss which is likely to be sus- tained by any improvidence on his part.P A BAILEE is one to whom goods are bailed ; the party to whom personal property is delivered under a contract of bailment. His duties are to act in good faith, and perform his undertaking in respect to the property intrusted to him, with the diligence and care required by the nature of his engagement. When the bailee alone receives benefit from the bailment, as where he borrows goods and chattels for use, he is bound to exercise extraordinary care and diligence in preserving them from loss or injury.i When the bailment is mutually bene- ficial to the parties, as where goods and chattels' are hired or pledged to secure a debt, the bailee is bound to exercise ordinary diligence in pre- 143 : 2 Ad. & E. 256 : 8 B. Mon. 415 : 4 Johns. 84 ; n Wend. 25 ; 7 Mart. 460 ; 20 Id. 77 ; 3 Fla. 27 ; and more skill may be required in cases of voluntary offers or special undertakings : 2 Kent Comm. 573. i-Edw. Bailm. 138; 7 La 253. j-2 Ld. Raym. 915; Story Bailm. $ 232, 233. It-i Mod. 210. 1-Story Comm. 257 ; 5 Mass. 104. lri-2Kent Comm. 574; Edw. Bailm. 141. n-Edw. Bailm. 38, 39; 13 Johns. 211; 9 Wend. 60; 5 Bingh. 217. O-8 Ind. 315. p-4 B. & A. 21, 36, 4 ; 5 Id. 342; i Stark. 238; 16 How. 475. q-Story Bailm. g 237 ; Edw. Bailm. 1(4. 112 BAILMENTS. serving the property. 11 When the bailee re- ceives no benefit from the bailment, as where he accepts goods, chattels, or money to keep without recompense, or undertakes gratuitously the performance of some commission in regard to them, he is answerable only for the use of the ordinary care which he bestows upon his own property of a similar nature. 1 The bailee is bound to redeliver the property, According to the nature of his engagement, as 'soon as the purpose for which it was bailed shall have been accomplished. In bailments which are beneficial to both of the parties to the contract, the bailee has a right to retain the thing bailed until the object of the bailment has been accomplished. A bailee for work, labor, and services, such as a mechanic or arti- san, who receives chattels or materials to be repaired or manufactured, has a lien upon the property for services.* Other bailees, inn- keepers, common carriers, and warehousemen, also have a lien for their charges." The bailee has a special property in the goods or chattels intrusted to him, sufficient to enable him to defend them by suit against all persons but the rightful owner. The depositor and mandatory acting gratuitously, and the finder of lost property, have this right. 7 A bailee, with a mere naked authority, having a right to remuneration for his trouble, but coupled with no other interest, may support tres- pass for any injury amounting to a trespass done while he was in actual possession of the thing. w A bailee cannot dispute his bailor's title. x A bailee is not responsible for losses by rob- bery ? lightning, tempest, inundation, and other like calamities, unless there has been some un- justifiable delay, or the party has taken upon him the risk of the casualty, or he is at the same time guilty of neglect. 1 But losses by mere private or secret theft, to excuse the party, depend upon the nature of the bailment, and the particular circumstances of the case. a A BAILOR is one who bails a thing to an- other; the party who delivers personal property under a contract of bailment. The bailor must act in good faith toward the bailee ;* he must permit him to enjoy the thing bailed according to the contract; and, in some bailments, as in hiring, warrant the title of the thing hired, and, probably, keep it in suitable order and re- pair for the purpose of the bailment, accord- ing to custom, or as the parties may agree. CARRIERS are those who undertake to transport goods from one place to another. 4 ' r-Edw. Bailm. 223, 312; Story Bailm. 308, 309. s- Edw. Bailm. 66-74-102-108 ; Story Bailm. \\ 65, 67, 174-186. t-4 Bouv. Inst. 201, 309, 310, 355. li-Id. 307 309,411-414, 547-552. v-Edw. 'Bailm. 55,57,61. w- 4 Bouv. Inst. . 3608. x-Edw. Bailm. 288, 289, 305, 535- y-Story Bailm. c. i,$?6. z-Id. % 36-37. -i Humph. 99; 14 Eng. L. & Eq. 327. b-Story Bailm. 74. 76, 77. _*-Id. $^ 388-392. 4; 25 Eng. L. & Eq. 595; Story Bailm. $ 490; 2 Kent Comm. 597, 598 ; 7 Yerg. 340 ; 3 Munf. 239 ; i Dev. & B. 273 ; 2 Bail. 157; 6 Johns. 160; 21 Wend. 190; 23 Id. 306; 5 Strobh. no ; Rice, 108 : 4 Zabr. 697 ; 2 Id. 273 : i Conn. 487; 12 Id. 410; 4 N. H. 259;. 1 1 111. 579; the act of God is held to extend only to such inevitable accidents as occur without the intervention of man's agency; x T R. 27; 21 Wend. 192; 3 Esp. 127; 4 Dougl. 287. BAILMENTS. losses occurring from natural causes, such as frost, fermentation, evaporation, or natural de- cay of perishable articles, or the natural or necessary wear in the course of transportation, provided the carrier exercises all reasonable care to have the loss or deterioration as little as practicableJ Carriers both by land and water, when they undertake the general business of carrying every kind of goods, are bound to carry all which offer; and if they refuse, without just excuse, they are liable to an action. k But any Common carrier, whether a natural person, or corporation, may restrict his business within 'such limits as he may deem expedient, and he is not bound to accept goods out of the line of his usual business. 1 Authority of Agents and Servants. The board of directors have all the power that re- sides in the corporation, unless restricted by the charter and by-laws; other agents and ser- vants cannot bind the company beyond their sphere of operation, and an agent who as- sumes to bind the company beyond his sphere, cannot." But the fact that a company has ratified other similar contracts of the particular servant might be evidence against them. A notice by the company of want of authority in servants, renders their acts void.P A servant may bind the company even when he disobeys their directions, if acting in the scope of his authority.*! A common carrier of goods is liable for the acts of all the servants of his sub-contractors, 1 " and it makes no difference that the emoluments were allowed to be re- tained by the servants as a part of their com- pensation, unless this were known to the owner of the goods, and he contracts with the servants as principals.' An owner may countermand the destination of goods through the proper agent.* An agent's authority is a matter of fact." Baggage Limitations and Restrictions. They are not liable for merchandise which a passenger carries covertly/ and it makes no difference that the passenger has no other trunk. w Jewelry, being female attire, and a J-B. N. P. 69 ; 2 Kent Comm. 299, 300; Story Bailm. 492, a; 6 Watts. 424; Redf. Rlys. 141. fe-2 Show. 332 ; 5 T. R. 143 ; 5 B. & Aid. 32 : 8 M. & W. 372 ; i Pick 50; 5 Mo. 36; 15 Conn. 539; 2 Sumn C. C. 221 ; 6 Rly. Cas. 61 ; 6 Wend. 335; 2 Story C. C. 16; 12 Mod. 484 ; 4 C. B. 555 ; 6 Id. 775 ; I Ball & B. 54 : 9 Price, 408. 1-23 Vt. 186; 14 Penn. St. 48; 10 N. H. 481; 30 Miss. 231 ; 4 Exch. 369; 12 Mod. 484. m-i8 Eng. L. & Eq. 557, in note; 16 Jur. 1069: S. C. 14 Eng. L. & Eq. 175, 11-3 Foster, 275; 18 Conn. 484; 3 Exch. 268; 2 Duer. 341. 0-3 Exch. 268; 2 Duer. 341. I>-i4 C. B. 647; S. C. 26 Eng. L. & Eq. 297; 18 Barb. 500; 26 Barb. 564; i Allen, 9 ; 18 C. B. (N. S.) 748. q- 14 How. U. S. 468, 483; 5 Duer. 193; 2 C. & P. 599. r-2 Exch. 415; S. C. 5 Rly. Cas. 302. s-8 N. H. 146; 7 Id. 157; 2 Harr. 481. t-i2 Iowa, 348 ; 16 Jur. 1069; S. C. 14 Eng. L. & Eq. 175. u-i8 Barb. 500 ; 12 Iowa, 340 : ifl Jur. 1069 ; S. C. 14 Eng. L. & Eq. 175. v-8 Exch 30 ; S. C. 9 Eng. L. & Eq. 477 ; 2 Bosw. 589 ; 3 Am. L. Reg. (N. S.) 126: S. C. 44: N. H. 325; 25 Wend. 459; 10 Cush. <;o6 ; 6 Hill, 586 , 12 Ga. 217 ; 3 E. D. Smith, 571. W-25 Wend. 459; joCush. 506. x-4 Bing 218: 3 Penn. St. 451 : 20 Mo. 513 ; 6 Porter, 242. y-g Wend. 85 ; 19 Id. 534 ; 4 E. D. Smith, 59, 178 ; i Abb. Pr. 32 ; 30 N. Y. 594; 9 Humph. 6; n Id. 419: 6 Porter, 242. x-6 Porter, 243. a-6 Porter, 242. b-Newberry's Admr. watch in a trunk is proper baggage. 1 So, also, is money for expenses/ books for reading, 1 clothing,* spectacles, 11 tools of trade, and many other similar things. A carrier is responsible for baggage when the passenger goes by another conveyance. 4 Carriers cannot restrict all re- sponsibility for baggage, 6 but may make rea- sonable regulations and follow them." Stage proprietors and omnibus drivers, whd assume to carry luggage for all who apply, from railway stations about the towns, are re- sponsible as common carriers ; and it does not affect the responsibility of such carriers where they enter the names of passengers on way- bills, but do not enter the baggage;' where they are employed by hotel-keepers to trans- port their guests, both are responsible.* Responsibility for. It is. an elementary principle of law that railways, steamboats, and other carriers of passengers, although not liable for injuries to their passengers without their fault, are nevertheless responsible, as common carriers, for their baggage, or luggage. 1 * Where one company checks baggage through a suc- cession of lines, owned by different companies, each company becomes responsible for the whole route. 1 The baggage-check given at the time of receiving such baggage is regarded as prima facie evidence of the liability of the company, and such responsibility continues un- til the delivery of the same to the passenger, or to his order ;J a check therefor " stands in the place of a bill of lading ;" k and where different railways, forming a continuous line, run their cars over the whole line, and sell tick- ets for the whole route, the action lies against either company for the loss of baggage; 1 they remain liable until a full and unequivocal de- livery to the owner. But the company is not liable unless the baggage is given in charge of their servants," and if the servant accepts, the carrier is responsible for the baggage. Their liability results from duty, and not from con- tract.? Bill of Lading Effect upon Carrier. A bill of lading, or carrier's acknowledgment of 404. c-io How Pr. 330 : 40 Miss. 39 : 10 Ohio, 145 ; 4 E. D. Smith, 178; Id. 181 ; 38 111. 219; 25 Ga. 61. d- 2 Blatch. C. Ct. 336. e-4 C. B. (N. S.) 257 ; 5 Jur. (N S.) 1056. f-i Strob. 468. ff-4 Cush. 115. h-4 Bing 218; 6 Hill (N. Y.) 586; 10 N. H. 481; 26 Wend. 591; 7 Rich. 158; 13 Wend. 611 ; 2 Bos. & P. 416; 6 East. 564; S. C. 4 Esp. 177. 1-8 N. Y. 37; 2 E. D. Smith, 184. j-i C. B. 839 ; 2 B. & P. 416 ; 4 Bing: 218 ; 6 Hill, 586; 26 Wend. 591 ; 10 N. H. 481 ; 7 Rich. 158. k-7 Rich. 158 ; 3 E. D. Smith, 246; 10 C. B. (N. S.) 453 ; 6 . . . , . . . . Gray, 450; 4 E. D. Smith, 453 ; 7 Gray, 92, 86; i Hil- ton, 280. 1-4 Seld. 37 ; 2 E. D. Smith, 84 ; 29 Barb. 35 , 4 H. & N. 615 : 5 Cush. 69. m-2i Wend. 354 ; 7 C. B. . . . 839; 16 Id. 13: S. C. 29 Eng. L. & Eq. 347; 7 Hill (N. Y.)47; 2 Bos. & Pul. 416; 2 Duer. 335; 16 B. Mon. 302, 308 ; 26 Wend, sqi : 4 E. D. Smith, 453 ; 19 Wis. 40; 35 Vt. 605 : 12 C. B. (N. S.) 75; S. C. 8 Jur. (N. S.) 1213; 49 Barb. 148; 36 Id. 557; 34 N. Y. 548. n-io C. B. 726 ; S. C. 2 Eng. L. & Eq. 331 ; 12 C. B. 291 ; S. C. 6 Eng. L. & Eq. 397; 12 C. B. 304; S. C. TO Eng. L. & Eq. 521 ; i Hilton, 244; 2 Duer, 335; 12 111. 344; 13 Id. 746 ; 7 Cush. 155 ; 4 Ohio St. 722 : 28 Miss. 792 ; u Rob. (Louis.) 24; 3 Dana. 91 ; 37 Miss. 391; 12 Jur. (N. S.) 266 ; L. R. i Q. B. 54 ; S. C. 6 B. & S. 961. o- 21 Wend. 354; 31 Conn. 281. p-n C. B. 655 ; S. C. 7 Eng. L. &"Eq. 519; 36 N. H. 26; i E. D. Smith, 95; 4 Id- 453- BAILMENTS. the receipt of goods, is generally the written evidence of the contract between the parties, and is expected to contain all the exemption from general responsibility which it is competent for the carrier to claim. Parol evidence is not admissible to vary the contract of shipment thus evidenced.' But as between immediate parties the bill of lading is not conclusive as to the quantity or condition of the goods at the time of shipment, especially when there was no oppor- tunity to inspect them. r Between the consignor and carrier the bill of lading is (in the absence of proof to the contrary) evidence of the truth of its contents." Questions of quantity and quality of goods cannot be raised where inter- mediate carriers are cencerned.* A bill of lading may be explamed," but cannot be con- tradicted or controlled as to the terms of the contract, by oral evidence. 7 The goods must be forwarded according to the bill of lading." If a shipper give separate bills of lading to the different owners of wheat, shipped in the same car, he is liable to each owner for the conver- sion of his portion. 1 The statement in a bill of lading that the goods were received in good order is not conclusive evidence of that fact ; but it is competent to show that such was not the fact.' A bill of lading must be construed with reference to the nature of the route and the course of business. 1 The bill is conclusive as to third parties who act upon it. a A transfer by indorsement and delivery of the bill of lading passes to the indorsee all vested and contingent rights of action. b An exception in a bill of lading does not affect its general construction.* The bill as to the receipt of goods is evidence only as between the parties, but conclusive as to parties acting in good faith under it. d But in cases of fraud the estoppel will not bind the owner of a vessel or his interest in it. 8 Delivery must be made, if practicable, as agreed/ or the carrier must show loss by excepted risks.' Terms used in a bill of lading, as in other written instruments, will receive such construc- tion as the usage of the business requires.* An assignment of a bill of lading transfers the title to goods but not the claim for damages. h A passenger's baggage is not at his own risk by reason of any notice printed on his ticket, and posted in the company's office, unless such notice is brought home to the owner. 1 BILLS OF LADING FORMS. Bill of Lading Domestic. THE EXPRESS Co. Place , Date. Received from (consignor' s or shipper's name). One package (box or bundle, etc.); value (state amount). Marked (consignee's name and other marks or iKrections). q-4 Ohio, 334 ; 2 Sumn. C. C. 567 ; Ang. Carr. ?g 228, 229. r-i M. & R. 186; 7 Ad. & E. 29 ; 96. Mon. 112. s-i i Pick. 43; 7 W. LawJ. 302; 3601115.322; 4 Seld. 497 ; 24 Ind. 447 ; 13 La. An. 452 ; 19 L. Rep. 376 ; 16 L. Reg. 229 ; 10 Wis. 4 ; 50 Maine, 339 ; 18 III. 172 ; o Leigh. 347. t-i8 Barb. 586. 11-9 B. Mon. 112 ; 19 L. Rep. 43 ; 16 111. 408 ; 28 Barb. 323. v-4 Ohio, 334 ; 2 Sumn. 567 ; 3 Gray, 97; Angell. Carriers $) 228, 9. w- L. Rep. July, 1857, 129; 3 Mich. 268: Q Barb. 158; 12 It is a part of the consideration of this contract and it is agreed that the said Express Company are forward- ers only, and are not to be liable or responsible lor any loss or damage while being conveyed by the carriers or agents, to whom said property may be by said Express Company intrusted, or arising from the dangers of ocean or river navigation, railroads, steam, fire in stores, de- pots, or in transit, or from any cause whatever , unless in every case the same be proved to have occurred from the fraud or gross negligence of said Express Company or their servants ; nor in any event beyond the sum of fifty dollars, at which the article carried is hereby valued, unless as otherwise herein expressed ; nor liable for any damage to glass or any fragile article unless herein spe- cially insured. And if the same is intrusted or delivered to any other express company or agent (which the said Express Company are hereby authorized to do), such company or person so selected shall be regarded ex- clusively as the agent of the depositor, and as such alone liable; and the Express Company shall not be in any event responsible for the negligence or non-perform- ance of any such company or person, nor in any event shall said Express Company be liable for any loss or damage, unless the claim therefor shall be presented to them in writing at their said office, within thirty days after the time when said property has or ought to have been delivered. It is further agreed that said Company shall not in any event be liable lor any loss or damage or detention caused by civil or military authority, or by re- bellion, insurrection, or riot. Owner's risk against leak- age or breakage. Glassware received only at shipper's risk. Not negotiable. Freight paid \or collect). For the proprietors, A. A. (Bailee's Agent). Bill of Lading Domestic. For Money, luith Insurance added, ADAMS EXPRESS COMPANY. 9 Place, , Date. Received from (consignor's or shipper's name) ont package, sealed and said to contain (state amount). Addressed (give address, etc.) Upon the special acceptance and agreement that this Company is to forward the same to its agent nearest or most convenient to destination only, and there to deliver the same to other parties to complete the transportation such delivery to terminate all liability of this Com- pany for such package : and also, that this Company are not to be liable in any manner, or to any extent for any loss, damage or detention of such package, or of its contents, or of any portion thereof, occasioned by the acts of God, or by any person or persons acting or claiming to act in any military or other capacity in hos- tility to the government of the United States, or occa- sioned by civil or military authority, or by the acts of any armed or other mob or riotous assemblage, piracy or the dangers incident to a time of war, nor when occa- sioned by the dangers of railroad transportation, or ocean or river navigation, or by fire or steam, unless specially insured by this Company, and so specified in this receipt. In no event is this Company to be liable for a greater sum than that above mentioned, nor shall it be liable for any such loss unless the claim therefor shall be made in writing, at this office, within thirty days from this date, in a statement to which this receipt shall be annexed ; and the shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained shall extend to and inure to the benefit of, each and every company, or person, to whom the Adams Express Company may intrust or deliver the above described property for transportation, and* shall define and limit the liability therefor of such other 1 company or person. Freight paid (or collect). For the Company, A. A. Insured by Adams Express Company, for , to only. For the Company, Insurance, $ . A. A. La. An. 752 ; Id. 783 ; 30 L. Times, 26 ; 13 Ind. 518. x- 18 N. Y. 518. y-2 3 111.117; L. Rep. iC. P. 649; 14 La. An. 298. z-3 Wallace, 225. a-7 Allen, 454; Id. 456; ii Gray, 458, i Bailey, 174; 34 Me. 554; sold. 339; i Hilton, 221. fo-L. Rep. i P. C. 248; S. C. n Tur. (N. S.) 258. c-9 Allen, 299; 40 Ala. 184. d-i8 How. (U. S.) 182. e-i8 Id. 182. f- 1 2 Gray, 488. jf 16 Ohio, 421 ; 8 Bosworth, 213. **-* Gray, all ; j Camp. 320. i-i2 Gray, 388. BAILMENTS. Bill of Lading Domestic. For Freight. ADAMS EXPRESS COMPANY. Place , Date . Received of (consignor or skipper's name) . Value, dollars (or asked and not given). For which this Company charges (give amount). Marked (consignee's name, and other directions, ftarks and figures). Which it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation. It is part of the consideration of this contract, and it is agreed, that the said Express Company are forward- ers only, and are not to be held liable or responsible for any loss or damage to said property while being con- veyed by the carriers to whom the same may be by said Express Company intrusted, or arising from the dangers of railroads, ocean or river navigation, steam, fire in stores, depots, or in transit, leakage, breakage, or from any cause whatever, unless, in every case, the same be proved to have occurred from the fraud or gross negli- gence of said Express Company or their servants ; nor in any event shall the holder hereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them, and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express Company. And if the same is intrusted or delivered to any other express com- E any or agent (which said Adams Express Company are ereby authorized to do), such company or person so selected shall be regarded exclusively as the agent of the shipper or owner, and as such alone liable, and the Adams Express Company shall not be, in any event, re- sponsible for the negligence or non-performance of any such company or person, and the shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained shall extend to and inure to the benefit of each and every company and per- son to whom the Adams Express Company may intrust or deliver the above-described property for transporta- tion, and shall define and limit the liability therefor of such other company or person. In no event shall the Adams Express Company be liable for any loss or dam- age, unless the claim therefor shall be presented to them in writing, at this office, within thirty days after this date, in a statement to which this receipt shall be an- nexed. All articles of glass or contained in glass, or any of a fragile nature, will be taken at shipper's risk only, and the shipper agrees that the Company shall not be held responsible for any injury by breakage or other- wise, nor for damage to goods not properly packed and secured for transportation. It is further agreed, that said Company shall not, in any event, be liable for any loss, damage, or detention caused by the acts of God, civil or military authority, or by rebellion, piracy, insur- rection, or riot, or the dangers incident to a time of war, or by any riotous or armed assemblage. If any sum of money, besides the charge for transportation, is to be collected from the consignee on delivery of the above- described property, and the same is not paid within thirty days from the date hereof, the shipper agrees that this Company may return said property to him at the expiration of that time, subject to the conditions of this receipt, and that he will pay the charges for transporta- tion both ways, and that the liability of this Company for such property while in its possession for the purpose of making such collection, shall be that of warehouse- men only. Freight paid (or collect). For the Company, A. A. Bill of Lading: Foreign. Freight, Money, etc. AMERICAN-EUROPEAN EXPRESS. Place , Date . Received of C. R. One box (or package, etc.) Value, $ . Numbered and marked as in the margin, to be forwarded by us only to , , as per address in " Marks and numbers." It is agreed, and is part of the consideration of this contract, that said Company are not to be held respon- sible, except as forwarders, nor for any loss or damage arising from dangers of fire, at sea or on shore, accidents from machinery, boilers, steam, leakage, or any other Accidents or dangers of the seas, rivers and steam navi- gation, of whatever nature or kind soever, or by dangers of railroads, restraints of princes or potentates, or for any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of our- selves, our agents or servants, and we, in no event, be liable beyond our route, as herein receipted. Valued under fifty dollars, unless otherwise herein stated. Not accountable for specie, jewelry, or precious stones, un- less value is declared. Not accountable for leakage or breakage. Contents unknown. Marks and numbers: C. E. . Freight, $ . Insurance, $ . Total, $ . Duties and customs charges payable by con- signee at destination. For F. S. & Co., Forwarders. A. A., Agent. Bill of Lading Domestic. THE RAILROAD. Place , Date . Received from (consignee or shipper's name) the following freight, marked as below, which we promise to deliver on the platform of the Com- pany's freight station, at . Incidental dan- gers of railroad transportation, leakage, fire in cars or at stations, excepted. All goods offered for transportation must be in good order, and distinctly marked with name of station at which they are to be left, otherwise the Company will not be responsible for loss of goods or wrong delivery ; nor will the Company be responsible for the safety of way freight, after its delivery on the platform of the station for which it is marked. When receipts are required, duplicates ready for sign- ing must be furnished by the consignor. Marked . Number and description of packages, . (Signed) Company's name by Agent. Bill of Lading Domestic. THE RAILROAD STATION. Conditions. Freight offered for transportation must be in good or- der, properly packed, and to prevent loss and miscar- riage, the agents are instructed not to receive any packages or goods of any description whatever, unless they are plainly marked with the owner's name and destination. The company will not be responsible for leakage of liquids, breakage of ware, nor will they hold themselves responsible for any goods lost, stolen, or damaged, be- yond the value of fifty dollars per package. When receipts are required, duplicates, ready forsign- ing, must be furnished by the consignor. Gunpowder, gun-cotton, and like combustibles, will not he received except by special arrangement at each consignment. Coal oil and friction matches will only be received for transportation on Mondays and Thursdays, previous to 4 o'clock P. M. Packages containing these and all similar freight requiring extra caution, such as acids, turpentine, benzine, naphtha, etc., must be marked so as to plainly show the nature of their contents. Shippers concealing this in such cases will be held responsible for any damage resulting. Received this day of , A. D. , of (consignor or shiver's name), the following articles to forward, subject to the above conditions. Marked . Number and description of packages. (Signed) Company's name by agent. Bill of Lading Domestic. With Invoice. THE RAILROAB. Coal oil, friction matches, and gunpowder will be re- ceived for transportation on Mondays only until 4 p. M. Packages containing these and all similar freight re- quiring extra caution, such as acids, turpentine, benzine, naphtha, etc., must be marked so as to plainly show the nature of their contents. Shippers concealing this in such cases will be held responsible for any damage resulting. When goods for more than one mark are comprised in one dray-load, separate receipts must be sent for each. Received (place) , this day of , at BAILMENTS. , of (consignor or skipper's name), the following articles, contents and conditions unknown. Marked . To be carried to and delivered , at Station, upon the terms and according to the agreement as specified on the back of this receipt 'set forms below). Number and description of packages. (Signed) A. A. For the Company. Invoice. To . Place , Date . . Receive and forward, subject to conditions of pill of lading attached, as follows : i Marks . Number and description of packages. | Weight. S. R., Shipper. Bill of Lading Domestic. THE RAILROAD COMPANY. Way Freight. Place , Date . Received of (consignor or shippers name). (Specify articles or goods, bundles, bales, barrels, etc.) Marked , to be transported to , and de- livered to , or order, upon the following terms : 1. The Company's liability is not to commence until the goods are actually received and ready for transpor- tation, and it is to terminate on delivery at the Com- pany's wharf or depot, or such other convenient place as they may provide for that purpose, or (if not sooner removed) shall terminate, without notice or demand, at the end of six working hours after they are ready for delivery at such point or place, and if not removed within that time they may be either held or stored at the sole risk and expense of the owner, or whom it may concern, and without insurance. 2. In the case of goods to be forwarded beyond this Company's line their liability is to extend only to their own portion of the route over which the goods are to be transported. 3. Except when their agents are guilty of gross negli- gence, this Company is not to be responsible for injuries to goods that may arise from the dangers of the seas or railroad, canal, river or lake transportation, or from providential or other unavoidable cause, or from fire, or from the effects of heat or cold, or from the perishable eharacter or fragility of the goods themselves, such as furniture or castings; or from defective package, such as loss of contents of packages covered with cloth, injuries from breakage of glass or other brittle ware, leakage of liquids, escape of grain, or other small arti- cles from bags, decay, rust on iron, deterioration, loss of 'ceight by natural causes, etc., or for changes of the market during the period of transportation. 4. Claims for loss or damage shall be made in writing immediately, and if delayed for more than ten days after the delivery of the article, or after due time for the delivery thereof, the Company shall not be liable. In case of loss or damage to any of the goods herein men- tioned, for which this Company would be liable, it is agreed that they shall have the benefit of any insurance that may have been or may be effected on said goods, and shall in no case be answerable over tn the insurers. t. In pursuance of a law of New Jersey, passed March loth, 1853. authorizing Railroad Companies to limit their responsibility for Jjioofor every 100 pounds of goods, unless additional compensation be paid, it is agreed that this Company are not, in any case, to be liable for more than a dollar a pound for the loss or damage to the goods carried under this agreement. 6. In the case of goods received for transportation from connecting lines, this Company shall have the benefit of any exemptions from liability stipulated for in the bills of lading given to the shipper or consignor. 7. The goods herein referred to shall be subject to a Ken, and may be retained for freight and charges on other goods, due from the party on whose account they arc transported, as well as for freight and charges on the goods retained. Not negotiable. (Signed) A. A. For the Company. Invoice. To . Place , Date . Receive and forward, subject to the conditions f bill of lading, from . Marked . For . Weighing . Measuring . 8. R., Shipper. Bill of Lading Domestic. THE RAILROAD COMPANY. Received at , this day of , of the following articles, contents and condition* unknown, to be carried and delivered on the terms and according to the agreement as speci- fied on the back of this receipt. Marked . Number and description of packages : . AGREEMENT. It is agreed, and is part of the consideration of thi* contract. 1. That all goods received for transportation shall be properly packed, and distinctly marked with the name of the consignee and the station where consigned ; they shall also be accompanied by an invoice, stating date, weight, amount, value, and to whom consigned. 2. That the Company shall not be responsible for the melting of ice, decay or injury to perishable articles from heat or cold, or for any loss, injury, or damage from the danger of railroad transportation, explosions, fire in stores, depots, or in transit leakage, breakage, theft, or from any cause whatever, unless the same be proved to have occurred from the fraud or gross negli- gence of said Company or their servants; nor in any event beyond the sum of fifty dollars, unless otherwise herein expressed ; nor liable for any damage to glass or fragile articles, unless herein specially insured. And when goods are intrusted to any other company or agent (which said Railroad Company is hereby authorized to do\ such company or person so selected shall be regarded exclusively as the agent of the owner, and as such alone liable: and the Railroad Com- pany shall not in any event be responsible for the negli- gence or non-performance of any such company or per- son ; nor in any event shall the Railroad Company he liable for any loss or damage, unless the claim there- for shall he presented to them in writing, at their office, within thirty days after the time when said property has Drought to have been delivered. The goods transported shall be subject to a lien and may also be retained for all arrearages of freight due on other goods by the same consignee or owner. 3. Storage will be charged on goods allowed to remain over twenty-four hours in the Company's depots or warehouses. 4. Articles requiring cooperage will be charged there- with. 5. Gunpowder, gun-cotton, friction matches, and like combustibles are not received or transported except by special contract to be made with the General Freight Agent. The Company's agents are authorized to open any packages supposed to contain the same, and the parties offering them under false invoices will be prose- cuted according to law. 6. Goods at private turnouts shall be at the owner's risk until attached to, and after they are detached from, the train. 7. All articles will be at the risk of the owners at the several " way stations " and platforms where depot buildings have not been established by the Company, from the moment such articles are delivered from the cars as directed or marked. 8. The responsibility of the Company under this bill of lading to commence upon the shipment of the goods from this station, and to terminate when unloaded from the cars. 9. Machinery, furniture, stoves, agricultural imple- ments, and all similar articles, when not packed in boxes, will always be at owner's risk of breakage from handling or any other cause. Not negotiable. A. A., Receiving Agent. Invoice. THE RAILROAD COMPANY. Place , Date . Receive and forward, subject to the conditions on back of receipt. Received of . Marked . Number and description of packages : . S. R., Shifter. BAILMENTS. "7 Bill of leading 1 Domestic. THB RAILROAD COMPANY. When goods for more than one mark are comprised in one dray-load, separate receipts must be sent for each. Through and Local Freight will not be received after 6 o'clock p. M. All freight must have the name of the station at which it is to be delivered/fozw/y marked on the pack- ages and on this receipt. Place , date . Received of (consignor or shipper's name). Number and description of goods, etc., . Marked . To be transported to , and delivered to , or order, upon the terms and according to the agreement as specified on the back of this receipt. AGREEMENT. It is agreed, and is part of the consideration of this contract : 1. That all goods received for transportation shall be properly packed and distinctly marked with the name of the consignee, and the station where, and to whom consigned. 2. That the Railroad Company shall not be re- sponsible for the melting of ice : decay or injury to per- ishable articles from heat or cold: or for any loss, injury, or damage from the dangers of railroad transportation, explosions, fire in stores, depots, or in transit, leakage, breakage, theft, or from any cause whatever, unless the same he proved to have occurred from the fraud or gross negligence of said Company or its servants ; nor liable for any damage to glass or fragile articles, unless herein specially insured. And when gods are intrusted to any other company or person (which said Railroad Company is hereby authorized to do\ such company or person so selected shall be regarded exclusively as the agent of the owner, and as such alone liable; and the Railroad Company shall not in any event be re- sponsible for the negligence or non-performance of any such company or person; nor in any event shall the Railroad Company be liable for any loss or damage unless the claim therefor shall be presented to them in writing at the office of said Company in , within five days after the time when said property has or ought to have been delivered. The goods transported shall be subject to a lien and may also be retained for all arrearages of freight and charges due on other goods by the same consignee or owner. Freight to be paid upon the weight of goods as ascer- tained by the Company's scales. 3. Storage will be charged on goods allowed to remain over twenty-four hours in the depots or warehouses of said Company. 4. Articles coopered will be charged therewith. 5. Gunpowder, gun-cotton, friction matches, and like combustibles are not received or transported under this Contract. 6. Goods at private turnouts shall be at the owner's risk until attached to and after they are detached from the train. 7. All articles will be at the risk of the owners at the several "way stations" and platforms where depot buildings have not been established by the Company, from the moment such articles are delivered from the cars as directed or marked. 8. Freight carried by this Company must be removed from the station at during business hours on the dav of its arrival, or it maybe stored at owner's risk and expense, and in the event of its destruction or dam- age from any cause while in the depot of the Company, t is agreed that said company shall not be liable to pay any damages therefor. 9 The responsibility of the Company under this bill of lading to commence upon the shipment of the goods from this station, and to terminate when unloaded from the cars. Machinery, furniture, stoves, agricultural implements, and all similar articles, when not packed in boxes, will always be at owner's risk of breakage from handling or any other cause. A. A. , Agent. Invoice. Place , date . THK RAILROAD COMPANY. Receive and forward, subject to the conditions of bill of lading, from , to . (State what.) Marked . ^or . 8. R., Shipper. Bill of I-ailine Domestic. THE RAILROAD COMPANY. Place , date . Received of 'consignor or shipper's name). Number and description of packages. Marked , Freight, $ . To be transported to , and delivered to (con signee ' s name), or order, to be by us forwarded to (state where), by (state -whom), or if by (him or them ! refused to be sent, by any other direct and con- venient route, upon the following terms, on pay- ment of freight, as hereinbefore specified. It is agreed, and is part of the consideration of this contract : 1. That all goods received for transportation shall be properly packed, and distinctly marked with name of consignee, and the station where, and to whom con* signed. 2. That the Railroad Company shall not be re- sponsible for the melting of ice; decay or injury to perishable articles from heat or cold ; or for any loss, injury, or damage from leakage, breakage, or for any cause whatever, unless the same be proved to have oc- curred from the fraud or gross negligence of said Com- pany or its servants : nor liable for any damage to glass or fragile articles, unless herein specially insured : nor in any event shall this Company be liable for any dam- age, unless the clpim shall be presented to them in writ- ing, at the office of said Company, within ten days after the time when the snid property has or ought to have been delivered. Nor will the Company be responsible for any goods lost, stolen, or damaged, beyond the value of fifty dollars per package, unless the value is disclosed and receipted for. The goods transported shall be sub- ject to a lien and may also be retained for all arrear- ages of freight, and charges due on other goods by the same consignee or owner. When goods are intrusted to any other railroad or transportation company (which is hereby authorized', such company so selected, shall be regarded exclusively as the agent of the owner, and as such alone liaHe : and the Company shall not in any event be responsible for the negligence or non-perform- ance of any such company. Freight to be paid upon the weight of goods as ascer- tained by the Company's scales. 3. Storage will be charged ongoods allowed to rema% over twenty-four hours in the depots or warehouses of said Company. 4. Articles coopered will be charged therewith. 5. Gunpowder, gun-cotton, friction matches, and like combustibles, are not received or trans-ported under this contract. 6. Goods at private turn-outs shall be at the owner's risk until attached to and after they are detached from the train. 7. All articles will he at the risk of the owners, at the several "way stations" and platforms, where dept buildings have net been established by the Company, from the moment such articles are delivered from the cars as directed or marked. 8 The responsibility of the Company under this bill of lading to commence upon the shipment of the goods from this station, and to terminate when unloaded from the cars. 9. In pursuance of a law of New Jersey, passed March loth, 1853, authorizing railroad companies to limit their responsibilities to Sioo for every 100 pounds of goods, unless additional compensation be paid, it is agreed that this Company is not, in any case, to be Ha. ble for more than a dollar a pound for the loss or damage to the goods under this agreement. Machinery, furniture, stoves, agricultural implements, and all similar articles, when not packed in boxes, will always be at the owner's risk of breakage from handling or any other cause For the Company. A. A. Invoice. To the . Place , Date . Receive and forward, subject to the conditions of bill of lading, from . (State what.) Marked . For . Weighing pounds. Measuring cubic feet. Freight paid (or collect) $ . S. 'R., Shiver. Bill of Lading 1 Domestic or Foreign. Merchandise by Sailing, etc., Vessel. Shipped in good order and condition, by A. B. BAILMENTS. 4 Co., in and upon the (kind of ' vesstt), called the {name of vessel), whereof (name of master) is mas- ter for this present voyage, and now lying in the port of , and bound for (state destination}. ( Describe goods. ) Being marked and numbered as per margin, and are to be delivered in the like good order and condition at the port of (state destination again], (the dangers of the seas, fire and collision only excepted ) unto (consignee's name), or to his (or their) assigns, he or they paying freight on the said merchandise at the rate of , and average accustomed. In witness whereof, the master or purser of the said ship or vessel hath affirmed to two bills of lading of this tenor and date, one of which being accomplished the other to stand void. Weight and contents unknown. Marginal Invoice. Draft of vessel as loaded : feet, in. forward ; feet, in. aft. bushels. quarters. @ s. d. per quarter. Freight, . Total, . Dated at , this day of . (Signed) M. R. Bill of leading Domestic or Foreign. Barrels, etc. General Form Sailing Vessel, etc. Shipped in good order and condition, by A. B. & Co., on board the (kind of vessel) called the (name of -vessel), whereof (name of master) is mas- ter for this present voyage, and now lying in the port of , and bound for (state destination again). (Describe goods.) Which are marked and numbered as per mar- gin, and are to be delivered in like good order and condition at the aforesaid port of (state destination), (the dangers of the seas, fire and collision only excepted) unto (consignee's name), or to his (or their) assigns, he or they paying freight upon the said merchan- dise at the rate of shillings pence per gallons (gross gauge'), delivered with five per cent, primage and average accustomed. tn witness whereof, the master or purser of the said vessel hath affirmed to bills of lading, all of this tenor and date, one of which being ac- complished the rest to stand void. Marginal Invoice. Shipping Marks. Brands. Bbls. Total No. bbls. . gallons (gross gauge.) payable bbls. , @ s. d. per galls. Freight, . Primage, 5 per cent., t . Total, . Gauge and contents unknown ; not accounta- ble for leakage or breakage. Freight payable on barrels delivered full, part full, or empty. Dated at , this day of . (Signed) M. R. Bill of LadingForeign or Domestic. Shipped in good order and condition by (state id/torn), on board the (kind of vessel), called the (name vessel), whereof (name of master) is master, now lying in the port of , and bound for (state destination). (Describe goods.) Being marked and numbered as in the margin, and to be delivered in the like good order and condition, at the aforesaid port of (state destination again], (the dangers of the seas, fire and collision ex- .cepted), unto (consignee's name), or to his (or their) assigns, he or they paying freight for the said goods, in U. S. currency, at the rate of , with per cent, primage and average accustomed. In witness whereof, the master or agents of the said vessel hath affirmed to (give number) bills of lading, all of this tenor and date ; one of which being accomplished the others to stand void. Not accountable for leakage, breakage, cooper- Age or rust. 'Weights and contents unknown. To be received alongside within reach of ves- sel's tackles. Lighterage, if any, at the expense and risk of consignees. Marginal Invoice. Marks and numbers, . Freight, . Pri mage, .) Dated at , the day of . (Signed) M. R. Bill of Lading Foreign or Domestic. Cork for Orders Sailing Vessel, etc. Shipped in good order and condition, by A. B. ft Co., In and upon the (kind of vessel) called the (name of vessel), whereof (name of master) is mas- ter for this present voyage, and now lying in the port of , and bound for Cork (or Falmouth, or Queenstown, or Plymouth, etc.) for orders. (Describe goods.) Being marked and numbered as per margin, and are to be delivered in the like good order and condition at the port of ultimate destination (the dangers of the seas, fire and collision only excepted) unto (consignee's name), or to his (or their) assigns, he or they paying freight on the said merchandise, as per terms and conditions of charter party, dated the day of , and fulfilling all other condi- tions thereof. In witness whereof, the master or purser of said ship or vessel hath affirmed to two bills of lading, of this tenor and date, one of which being accom- plished the other to stand void. Marginal Invoice. Marks, . Bushels, . quarters. Weight and contents unknown. Dated in , this day of . (Signed) M. R. lay-days were used in loading vessel at , leaving lay-days for discharging cargo at the port of discharge and awaiting orders at port of call. Bill of Lading Domestic. Place , Date . Shipped by (stateivhom) in apparent good order on board the steamship , with leave to trans- fer to any other steamship of the line, and bound for , with liberty to call at any port or ports, for whatever purpose. (Describe goods.) Marked and numbered as per margin, and to be delivered in like apparent good order at . The acts of God, war or the enemy, restraint of gov- ernments, fire while on board the vessel, at sea, in port, or on shore, accidents from machinery, boilers, steam, or any other accidents of the seas, rivers and steam nav- igation, of whatsoever nature or kind, excepted, and with liberty to sail with or without pilots, and tow and assist vessels in all situations, unto , or assigns, he or they paying freight therefor, as per tariff, and charges as per margins, in bankable money. Weights, contents and condition of packages being unknown, no responsibility is assumed therefor, nor win the company be responsible for cooperage or mending, loss in weight, leakage, breakage, or rust ; nor for frost, heat, natural decay of goods, or unavoidable exposure to weather ; nor for the value of above merchandise, if all or part of it be taken out of the possession of this line, by process or color of law, the shipper having re- ceived notice of the fact ; nor for goods not specified in this bill of lading. Goods to be taken from the wharf immediately after the arrival of the steamer, otherwise they will be stored at the owner's expense, and at his risk of fire, loss or injury, in the warehouse designated by the agent. And it is further agreed, that the receipt or possession of this bill of lading by the owner, shipper, consignee or agent of either or all of them, shall be deemed sufficient proof of their knowledge of and agree- ment to the foregoing. Marginal Invoice, etc. The goods herein referred to shall be subject to a lien, and may be retained for freight and charges on othei goods, due from the party on whose account they ar transported, as well as for freight and charges on th goods retained No claims for loss or damage allowed, unless notified thereof at the time of the delivery of the goods, nor will any package be estimated to contain artic; s of more value than $100, unless specially certified to the contrary when shipped. Marks and numbers, . Freight, $ . Charges, $ . A. A., for Agent*. BAILMENTS. 119 Bill of Ladlnpr Foreijm. Place , Date . Shipped by (consignor or shipper's name), in ap- parent good order, on board the steamship . (Describe goods.') Unto ( give destination). Marked and numbered as per margin, with liberty to ship by or transfer to any other boats of the line, to call for any purpose at any port or ports, going or returning, to sail with or without pilots, to tow and assist vessels in all situations, and to stop at any wharves or landings at or between the ports of and , or other ports between or in the vicinity thereof. To be delivered, un- less the same be taken out of possession by process or color of law, in like apparent good order (the acts of God, war or the enemy, restraint of government, colli- sion, fire whilst on board the vessel or at sea, in port, or on shore awaiting shipment or deli very, piracy, robbery, theft and detention, accidents of the seas, rivers, inland and steam navigation of every nature and kind ex- cepted) on wharf of this line at the port of , upon surrender of this bill of lading, and payment in bank- able money of freight and charges thereon, and all ar- rearages of freight and charges upon other goods due by the same consignees or owners ; or if the marks indicate a destination to a point beyond said port, to a connect- ing company or companies to be transferred and deliv- ered by it or them to such person or persons upon such surrender and payment as aforesaid. Upon the following conditions : In cases where the marks in margin, as above, indicate an ultimate destina- tion beyond the port of , this line is authorized to deliver the goods from their wharf as above, notwith- standing anything hereinbefore mentioned, to any con- necting steamboat, railroad, transportation, express or forwarding companies or agents, to be transported to such ultimate point, and delivered by them to the per- son or persons above named ; which companies or agents so selected shall be regarded exclusively as the owner or consignee's agent, entitled to the benefit of the conditions and provisions of this and of their own bill of lading, if any, given therefor, and of all insurance. In cases of loss, detriment or damage to the goods, the transportation company in whose actual custody they shall be at the time of its occurrence shall alone be re- sponsible therefor. This line shall not be liable beyond the port of , though it may have fixed, charged or received a through rate of freight, and may have deliv- ered the goods as above provided, to be transported to such ultimate point. This line is not responsible for the goods while on the pier or wharf awaiting shipment, nor after they have been discharged upon the wharf at the port of Transportation companies taking possession of them for delivery to any place beyond are not responsible after their arrival at their wharf, depot or station at such place. The goods shall be received by the consignee or owner at the ultimate port of delivery, package by pack- age, and if not taken away during the day of their ar- rival, may, at the option of this line, or at that of such other company, be sent to store, or be permitted to lay where landed, or be returned to the port of shipment, all at the expense and risk of the owner, shipper or consignee. No responsibility will be assumed forgold, silver, pre- CiOus stones or metals, jewelry or treasures of any kind, Cictures, plate-glass, china, glass or statuary, unless ills of lading are signed therefor, in which their nature and value are expressed, nor for goods not specified in this bill of lading, nor for any package beyond the value of $100, unless another valuation be in such bill of lading declared. All claims for damage to goods must be adjusted in ;he presence of an officer of the company having the ame then in custody before they are removed from the station or wharf. Their value, unless they shall subse- quently have fallen in price, shall be taken to be their value or cost at the place and time of shipment. Unless written demand for damage done shall be made upon the company liable therefor, or upon the company which actually delivered the goods, within ten days after de- livery, it shall be taken to have been waived, and no suit thereafter shall be brought to recover the same. Weights, contents and condition of packages being unknown, no responsibility therefor is assumed. There shall be no liability for cooperage or mending, for loss in weight, for leakage, breakage, sweat or rust, nor for frost, heat, natural decay of goods, or unavoidable exposure to weather. Varnish, turpentine, camphenc, burning fluid, or inflammable goods of any description, on deck only, and in all cases to be at owner's risk. And it is further expressly stipulated, that in case the steamship shall be detained at the quarantine, and be there obliged to discharge the articles named in this bill of lading, that all risk and liability to the steamship or to the owners thereof, shall cease, and the obligations of the steamship under this bill of lading be deemed to have been fully accomplished, when the articles shall have been delivered from the tackles of the steamship, and all risks and expenses incurred thereafter shall be on account of the aforesaid owner, shipper or consignee. The acceptance of this bill of lading is an agreement on the part of the owner of the goods to abide by all it* stipulations, exceptions and conditions. In witness whereof ( give number) bills of lading, all of this tenor and date, have been signed, one whereof being accomplished the others to stand void. Rates guaranteed only from to per io Ibs. A. A. For the parties in interest severally but not jointly. Marks and numbers. If If If If If If ist class 2d class 3d class 4th class sth class 6th class Freight, $ . Charges, $ . Insurance, $ . Bill of Lading Foreign. Shipped in apparent good order and condition by (consignor or shipper' s name) in and upon the steamship called the , now lying in the port of , and bound for , with option to call a* , or other intermediate ports. (Description of goods.} Which are marked and numbered as in the margin, and are to be delivered in the like good order and con- dition at the port of (the act of God, the king's enemies, pirates, robbers, thieves, vermin, barratry of master, or mariners, restraints of princes and rulers, or people ; loss or damage resulting from sweating, leak- age, breakage, rust, decay, rain, spray, loss or damage from stowage or contact with, or smell or evaporation from any other goods, inaccuracies, obliterations or ab- sence of marks, numbers, addresses or descriptions of goods shipped ; injury to wrappers, however caused, or from any of the following perils, whether arising from the negligence, default or error in judgment of the pilot, master, mariners, engineers or other persons in the ser- vice of the ship, or for whose acts the ship-owner is liable, or otherwise, howsoever, namely, risk of craft or hulk or transshipment, explosion, heat or fire at sea. in craft or hulk, or on shore, either before lading or after unlading, boilers, steam or machinery, or from the con- sequences of any damage or injury thereto, however such damage or injury may be caused, collision, stranding or other peril of the seas, rivers, navigation or land transit of whatever nature or kind soever, and howsoever caused, being excepted, with liberty in the event of the steamer putting back to or into any port, or otherwise being prevented from any cause from proceeding in the ordi- nary course of her voyage, to transship the goods by any other steamer or vessel under and subject to all condi- tions and exceptions in this bill of lading. All fines, expenses, losses or damage which the ship or cargo may incur or suffer on account of incorrect or insufficient marking of the packages, or description of their con- tents, or dangerous nature thereof, shall be paid by the shippers or consignee [as may be required], and the shall have a lien upon the goods for the payment thereof, and with liberty to sail, with or without pilots, to call at any intermediate port, and to tow and assist vessels in all situations. Unto (consignee's name*), or to his (or their) as- signs. Freight on said goods to be paid at (state place or destination), at the rate of , with 5 per cent, primage and average accustomed. In witness whereof, the master or agents of th said ship hath affirmed to (give number) bills of lading, all of this tenor and date, one of which beinf accomplished the others to stand void. The goods to be taken from alongside by the con- signees immediately the vessel is ready to discharge, or they will be liable to be landed by the master and db- posited at the expense of the consignees, and at theii risk of fire, loss or injury on the wh*i(, or in the war* BAILMENTS. house or shed provided for that purpose or sent to the public store, as the collector for the district shall direct, at the expense and risk of consignees. The collector of the port being hereby authorized to grant a general order for discharge immediately after entry of the ship. Not accountable for gold or silver, manufactured or unman- ufactured, or in shape of coin, plated articles, glass, china, jewelry, precious stones, trinkets, watches, time pieces, mosaics, bills, bank notes of any country, orders, notes, or securities for the payment of money, stamps, maps, writings, title deeds, paintings, engravings, pic- tures, statuary, silks, furs, lace, cashmere, manufactured or unmanufactured, made up into clothes or otherwise contained in any parcel or package shipped under a bill of lading, unless the value thereof be therein expressed, and extra freight, as may be agreed to, be paid. In case of damage, loss or non-delivery, liability under this bill of lading not to exceed the invoice value of the goods, and for that only if the goods are correctly described on the bill of lading. Freight on goods to order, and on all perishable goods must be prepaid, unless otherwise agreed upon. Prepaid freight will not be returned, goods lost or not lost. Shippers will be held account- able for all damage caused by goods of an inflammable, explosive, or otherwise dangerous character, shipped without permission or without full disclosure of their nature, whether such shippers shall be aware thereof or not, and whether such shippers shall be principals or agents only, besides incurring the penalty provided by the Act of Congress, 1851. In case the vessel is prevented by ice in the river from reaching , the privilege is reserved at the ves- sel's expense, but without vessel's risk, to discharge and store the within-mentioned merchandise at , or other accessible point, in warehouses or lighters, to be forwarded as soon as practicable to , by lighters or rail, at the vessel's option and expense, but at the risk of the owners of the goods. Merchandise to be received on quay at , and de- livered therefrom by the person appointed by the agent of the line, and to be at owner's risk until removed, owner to pay the expense of watching, at the rate of three francs for twenty-four hours, and of delivery charge at not exceeding one franc, twenty-five centimes per ton. Parcels for different consignees, collected and made up in single packages, addressed to one party for deliv- ery in Europe, for the purpose of evading the payment of freight, will, upon examination in Europe by the cus- toms, be charged the proper freight. Sample parcels have best attention, but no liability is taken for delivery. Weight, gauge, contents and value unknown. In accepting this bill of lading, the shipper or other agent of the owner of the property carried, expressly accepts and agrees to all its stipulations, exceptions and conditions, whether written or printed. Marginal Invoice. Tons. Cwt. Qrs. Lbs. Freight on , at $ ton, Freight on ft. in. at ^ ton Primage, $ cent. Charge to , 5 per cent. Total, | Stg. Stg. Dated at -, the day of . . . , For General Agents. Original Receipt. Per steamer . Place , Date . Received in apparent good order by , of , the following packages, to be forwarded subject to the conditions in the bills of lading. Conditions : This is to be exchanged for the usual bill of lading of the line, notice of the terms of which is hereby admitted ; and this property is received subject to all the provisions therein contained. Full name of consignee must be given on this receipt. Marked : Line. R. C., Receiving Clerk. No bills of lading will be signed on and after day of sailing of steamer by which goods undet this receipt are shipped. Duplicate Receipt. Per steamer - . Place , Date . Received of (consignor or shipper' s name). Full name of consignee must be given on this duplicate. Marked : R. C., Receiving Clerk. Line. Bill of Lading: Foreign. Shipped in good order and in apparent good condition by (consignor or shipper's name], in and upon the steamship called the , whereof is master for this present voyage, or whoever else may go as master in the said ship, and now lying in the port of , and bound for , with option calling at . Description of goods. Which are marked and numbered as in the margin, and are to be delivered in the like good order and ap- parent good condition at the aforesaid port of , (The act of God, the public enemy, pirates, robbers, thieves, vermin, barratry of master or mariners, restraints of princes and rulers, or people, loss or damage resulting from insufficiency in the strength of package, sweating, breakage, leakage, rust, decay, rain, sprr.y, loss or dam- age from stowage or contact with or smell or evapora- tion from any other goods ; inaccuracies, obliterations or absence of marks, numbers, addresses, or descriptions of goods shipped ; injury to wrappers however caused;) or from any of the following perils (whether arising from the negligence, default, or error in judgment of the pilot, master, mariners, engineers, or other persons in the ser- vice of the ship, or for whose acts the ship-owner is liable, or otherwise howsoever), excepted ; namely : risk of craft or hulk, or transshipment, explosion, heat or fire at sea, in craft or hulk, or on shore; either before lading or after unlading; boilers, steam or machinery, or from the consequence of any damage or injury there- to, howsoever such damage or injury may be caused; collision, stranding, straining, or other peril of the seas, rivers, navigation of whatever nature or kind soever or howsoever caused, being excepted : with liberty in the event of the steamship putting back into or into any other port, or otherwise being prevented from any cause from proceeding in the ordinary course of her voyage to transship the goods by any other steamship, under and subject to all the conditions and exceptions in this bill of lading. All fines, expenses, losses, or damage which the ship or cargo may incur or suffer on account of incorrect or insufficient marking of the packages or description of their contents, or dangerous nature thereof, shall be paid by the shippers or con- signees (as may be required), and the ship-owner shall have a lien upon the goods for the payment thereof, and with liberty to sail with or without pilots, to call at any intermediate port, and to tow and assist vessels in all situations. Unto (consignee's name), or to his (or their) as- signs, he or they paying freight and charges im- mediately on landing of the goods, without any allowance of credit or discount, at the rate of , with primage and average accustomed. In witness whereof, the master or agent of said ship hath affirmed to ( give number^ bills of lading, all of this tenor and date : one of which bills being accomplished, the others to stand void. The master porterage of the delivery of th cargo to be done by the consignees of the ship, and the expense thereof to be paid by the re- ceivers of the cargo. This bill of lading, duly indorsed, to be given up to the ship's consignees in exchange for delivery order. . Weight, gauge, contents, and value unknown. Tb* goods to be taken from alongside by the consignees im- mediately the vessel is ready to discharge. It being expressly understood and agreed to by the shippers, that all liability of said ship, under this bill of lading, ceases as soon as the articles named therein are delivered from the tackles of the ship at her port of destination, or otherwise they will be landed by the master and de- BAILMENTS. 121 potited at the expense of the consignees and at their risk of fire, loss, or injury in the warehouse or shed provided for that purpose, or sent to the public store, as the collector for the district shall direct, and when de- posited in the warehouse no expense for storage to be charged to the government, and the keys of the ware- house or shed to be delivered to and kept in charge of the officers of customs under direction of the collector. The collector of the port being hereby authorized to grant a general order for discharge immediately after entry of the ship. The Company is not accountable for gold or silver, or other presious metals, manufactured or unmanufactured, or in the shape of coin, plated articles, glass, china, jewelry, precious stones, trinkets, watches or clocks, timepieces, mosaics, bills, bank notes of any country, orders, notes or securities for payment of money, stamps, maps, writings, title deeds, paintings, engravings, pictures, statuary, silks, furs, face, cashmere, manufactured or unmanufactured, made up into clothes or otherwise; contained in any parcel or package shipped under a bill of lading, nor for any claim, notice of which is not given before the removal of the goods, unless the value thereof be therein ex- pressed, and extra freight to be paid as may be agreed upon, and not accountable for any of the same articles when shipped as passengers' luggage, or otherwise not under a bill of lading, when the value shall exceed $50, unless at the time of delivery the value shall be declared and the increased charge mentioned in the company's notices be paid. Not accountable for loss of or damage to goods which is capable of being covered by insurance, nor in any case for more than the invoice value of the goods, nor for ay claim, notice of which is not given Before the removal of the goods. Freight on goods to order and on all perishable goods must be prepaid un- less otherwise agreed upon. Prepaid freight will not be returned, goods lost or not lost. Shippers will be held accountable for all damages caused by goods of an inflammable, explosive, or otherwise dangerous charac- ter, shipped without permission, or without full disclo- sure of their nature, whether such shippers shall be aware thereof or not, and may be seized and confiscated or destroyed by the ship-owner at any time before de- livery without any compensation to the shippers or con- signees, whether such shippers shall be principals or agents only, besides incurring the penalty provided by Act of Congress of 1851. The owners or agents of the line to have a lien on these goods, not only for the freight and charges herein, but for all previously unsat- isfied freights and charges due to them by the consignee. It is also stipulated that in case the whole or any part of the goods specified herein be prevented by any cause from going in said ship, the ship-owner is only bound to forward them by succeeding ships of this line. The ship-owner is not responsible for any discrepancy between the contents of the packages and the descrip- tion of the same in this bill of lading. Freight payable in upon the gross weight deliv- ered. In accepting this bill of lading the shippers or other agents of the owners of the property carried, ex- pressly accept and agree to all its stipulations, excep- tions, and conditions, whether written or printed. The merchandise to be received and delivered according to the customs and usages of the respective ports. Parcels for different consignees, collected and made up in single packages, addressed to one party for deliv- ery in for the purpose of evading the payment of frright, will, upon examination in by the customs, be charged with the proper freight. Parcel samples hate best attention, but no liability is taken for delivery. Marginal Invoice. Shipper's mark : . Tons. Cwt. Qrs. Lbs. Freight on , at f* ton, Freight on ft. in. at "$ ton Primage, fi cent. -,* Charge to 5 per cent. Dated at - Total, day o A. A., For General Agents. Stg. Place , Date Per steamer . Received in apparent good order by , of . the following packages, to be forwarded subject to the conditions in the bills of lading. Conditions : This is to be exchanged for the usual bill of lading of the line, notice of the terms of which it hereby admitted; and this property is received subject to all the provisions therein contained. Full name of consignee must be given on this receipt. Marked : I Line. R. C. , Receiving Clerk. Per steamer . Place , Date . Received of (consigner or shipper's name.) Full name of consignee must be given on this. duplicate. Marked : Line. R. C., Receiving Clerk. Shippers are requested to fill up the receipt and duplicate. Course of Business and Usages of Trade. Those who employ railway com- panies are bound to know their manner of transacting their business.J for the usages of any particular trade, such as are uniform and general, are presumed to be familiar to all having transactions in that trade or business. Contracts for transportation contain by impli- cation known usages of the business. k Damages and other Incidents. Dam- ages for total loss are the value of the goods at the place of destination. 1 If the goods are only damaged the owner is bound to receive them and the amount of damage. Upon evidence of a servant's unfaithfulness or negli- gence, some explanation must be given, or the company will be held liable. A company is liable for special damages where they act in bad faith, but ordinarily they are not liable for special damage.? The consignor owning the goods is the proper party to sue.i Actions may be brought in the name of bailees, or agents who have the rightful custody of the goods, and who make the bailment (but a recovery in such cases bars the claim of the general owner)/ or in the name of the owner. 8 Where j-25 Wend. 660 ; S. C. 6 Hill, 157 ; 23 Vt. 211, 12 ; 21 Ga. 526. li-io Texas, 344 : 28 Ga. 543. 1-4 Whart. 204; 13 B. Mon. 239, 243 ; 16 111. 408; n La. An. 324; 26 Ga. 122; 2 Head. 488; i Hilton, 543; 13 Ind. 164; 3 Bosworth, 7; 4 Allen, 112; Sedgw. Dam. 356; 2 B. & Ad. 932; 12 S. & R. 183; i Cal. 108; 10 Cush. 416; i<. Ga. 283; 2 Gray, 564; 5 Bosw. 625; 54 Me. 376; 14 Mich. 489 ; 12 La. An. 352 ; L. Rep. i C. P. 329. nv 5 Rich. 462 ; 2 Kernan, 509 ; 35 N. H. 390 ; 13 Ind. 263; 8 Gray, 215 ; 23 Wend. 306. n-2 Bing. (N. C.) 222 ; 14 111. 279; i Florida, 403; Newb. Adm. 504; Story Bailm. g 529 a; 10 Cush. 177; i H. & N. 408; S. C. 38 Eng L. & Eq. 335; L. Rep. i C. P. 559: S. C. 12 Jur. (N. S.) 321; 14 La. An. 429; 40 Miss. 39; 38 111. 219; i Iredell, 138. o-n Exch. 742. |-io C. B. 726; 35 N. H. 390; L. Rep. 3 P. C. 499. q-n Cush. 155; i Q. B. 483 ; Id. 491 ; 3 B. & Aid. 277; 37 Penn. St. 170; i Johns. 215; 8 Cranch. 317; 8 How. (U. S.) 429; ic Penn. St. 254; 3 B. & F. 582; 3 Taunt. 423; 4 Blackf. 364; Cheeves, 174; 3 H. & N. i ; 15 Johns". 39; 6 Hill 588; 26 Wend. 591 ; 10 Watts, 337; 3 H. & N. I. T- 28 Vt. 268: 13 Barb. 57; S. C. 2 Kernan, 2, H. 337; 23 Vt. 268; Hilt. 335; 3* 111. 116. 122 BAILMENTS. a general property is in the consignee, he should sue.* If a carrier deviate from the regular route, and the goods are lost, it is a conversion." rule of, etc. To excuse a common carrier for damage and loss of goods during the carriage, the force must be above human con- trol, or that of public enemies/ hence carriers are held as insurers against fire, unless caused by lightning. w If a carrier expose himself to perils, he must bear the loss, but not of delay from unknown perils. x He is liable for actual damage resulting from negligence and delay caused by his fault ;J but only obvious actual damage can be recovered. Demurrage. Demurrage is a claim by way of compensation for the detention of property which is subsequently restored. 2 An allowance made to the owner of a vessel for delay or de- tention in port beyond the appointed time of departure. This expense is paid by the mer- chant who causes the detention. Strictly speak- ing, it is only due when expressly stipulated for in the contract for affreightment.* A railway has no lien for the compensation impliedly due them, for the detention of their cars an unrea- sonable time, in discharging a cargo, the cars remaining during the time in a public highway. 15 Philadelphia Demurrage and JLay-Oay Scale, As approved by the Philadelphia Maritime Exchange, on the 6th of June, 1882, and in the absence of any special agreement to the contrary, to be understood as thereafter governing all grain and petroleum charters made on Philadelphia account or for vessels to load at Philadelphia, is : FOR VESSELS LOADING GRAIN, PETROLEUM, OR GENERAL CARGOES TO EUROPEAN PORTS. Tons. DEMURRAGE SCALE. The demurrage on sea going sail- ng vessels shaft be as follows, viz r Prom aoo to 250 " 251 to 300 " 30110 350 M 351 to 400 " 401 to 450 " 451 to 500 " 5 to 550: 27 " 551 to 600! 28 " 601 to 650! 29 " 651 to 700! 30 " 701 to 8coi jt " 801 to 900] 32 " 901 to IOPO 33 " loot to uno 34 " HOI to I200J 35 " I2OI tO 13TO " 1301 to 1400 " I40t to 1500 " 1501 to ifoo " 1601 to 1700 " 1701 to 1*00 cents per ton. ror vessels over 200 Jj > Itons, and not exceeding 500 tons, $24 " 'for the first 200 tons, and 8 cents per To load ton for each ton additional. For ves- and dispels over 500 tons, and not exceed- charge ;j ug QQO tons. $48 for the first 500 21 days [tons, and 6 cents per ton for each ton 22 [additional For vesse4s over 900 tons, $72 for the first 900 tons, and 5 cents per ton for each ton additional. CASE CARGOES. In absence of any fixed scale of days, either at Philadelphia or New York, it has been customary to use the barrel oil scale: and taking cases at five to the barrel, on the present scale, makes an arrangement satis- factory alike to vessel and shipper. ctory alik For Vessels Loading Petroleum for Foreign Ports. 2000 to 2500 bbls. capacity 10 lay days. 25OI " 3000 12 " 3001 " 4000 14 \ 15 4001 " 5000 5001 " 6000 oooi " 7000 20 70OI " 80OO 22 " Soot " 9000 " 25 * Customary despatch for discharging. For steamer charters demurrage and lay-days are sub- ject to special agreement." t-i3 Barb. 57. u-26Ga.6i7; 7 Allen, 351. v-6 John- son, 160; i Smith's Leading Cases, 219, ed. 1847; 2t >8 ed. 1853, and note of Am. editor; 21 Wend. 190; 5 Strob. no ; i Wilson, 281 ; 4 Zab. 697 ; i Murph. 173 ; Stewart L. C. 591, and note; 24 How. U. S. 386 ; i M'Cord, Law 439 ; i Bosw. 77 ; 30 Ala. 608 ; 31 Id. 501 ; ao Wis. 594. w-2 Zab. 372, 379 ; i T. R. 27: 5 T. R. 389; 4 Bing. N. C. 314; Disney, 480; 20 111. 407; 26 Me. 181 ; 12 Barb. 595. x-6 Bing. 716 ; S. C. 4 M. & P- 54; 7 Blackf. 497; Wright, 193; ao Penn. St. 171, Duty in general, etc. It is a well-settled principle of the law that common carriers, both of goods and passengers, are bound to carry for all persons that apply, unless they have a reason- able excuse for the refusal so to do. d Railway companies, and others who carry goods, in any mode, for all who apply, are common carriers.' Railways are made liable as common carriers of passengers' baggage and of freight/ and tkeir responsibility results, not from any contract, but from the nature of the office and business ; and action may be in tort or contract.* at common law. A carrier is bound to follow instructions given by the owner or his agent, unless that becomes reasonably imprac- ticable, whether given at the time or before delivery. 11 Express carriers who undertake to sell com, modities intrusted to them are common carriers of the money received. 1 Usage to collect and return price will bind carriers.^ Railway companies, steamboats, and other carriers, who allow express companies to carry parcels and packages on their cars or boats, or other vehicles, are liable as common carriers to the owners of the goods for all loss or damage which occurs, without regard to the contract between them and such express carrier. 1 by course of business. The busi- ness of common carriers is not one imposed upon any particular person, natural or artificial, and any one may undertake it at will, and may enter upon so much of the entire business as he chooses, and will be bound to the extent of their usage, and course of business ;' but this ques- tion arises only when they refuse to carry. They are bound to serve all who apply; for it is the general duty of all who undertake to serve the public in any particular business to serve all who come. A carrier cannot transship freight, except in cases of strict necessity. It is competent to prove whether goods usually arrive in a safe or damaged condition as a ground of presumption of negligence, or the contrary.? An owner of goods consigned by railway is bound to take notice of the course of the busi- ness, and call for them at the ordinary time of arrival, and remove them, or the carrier is only responsible for ordinary negligence.i wf 5. y-26 111. 205 ; 30 Penn. St. 242 ; 6 Duer, 275 ; 15 'is. 129. z-9 Wheaton. 362. a-i? Barb. 184. fo-io Bcsworth, 77. c- Young's Ship-owner and Master's Man- ual, 1876. d-6 C. B. 775 ; Story Bailm. JJ 591 ; 2 Sumn. 221, 224 ; 18 Barb. 500; 3 Brod. & B. 54, S. C. 9 Price, 408. e-7 Man. & G. 253 ; 8 M. & W. 421 ; Id. 749 ; 12 Id. 766; 6Whart.sos; 19 Wend 534; 13 Id. 6n ; Story Bailm. 500; Angell on Carriers, jj 78: 9 111. 518; 2 Wend. 327; 27 Vt. 399; Id. no; 30 L. T. 285; 8 El. & 61.728; 19 Barb. 346; S. C. i6N.Y. 515. f-i Met. 60; 2 Sumner, 221 ; 13 Wend. 611 ; 25 Id. 459, 25 Eng. L. & Eq. 287 ; S. C. 14 C. B. 255. tf-8 Ad. & El. 963 ; i P. & D. 4. h-7 Moore, 283 ; S. C. i Bing. 34. 1-4 Watts. 443 ; n Johns. 107 ; 2 Conn. 389 ; i Bailey, 553 ; 4 Grant, 407. j-39 111. 312; 3 Watts. 65; i Bailey, 553. lt-6 How. 344; 9 B. Mon. 112. 1-23 V. 186; 6 How. U.S. 344; 23 B. &S. 66; 15 C. B. (N. S.) 680. 111-4 Exch. 367 ; S. C 6 Rly. Cas. 61 ; 6'Wend. 335 ; z Story, 16 ; Dyer, 158 ; Godb. 346 ; 12 Mod. 482 ; 4 C. B. 555. n-ia Mod. 482. 0-37 Ala. 505. p-Id. n Jur. (N. S..' 935- ^[-38 Vt. 402 ; 7 Allen, 98. BAILMENTS. 123 Freight of dangerous quality. The owner must inform the carrier of the character of the goods, whenever it is essential to be known, either on account of carrying the par- ticular goods safely, or of carrying them in such a manner that other goods may not be damaged by coming in contact with them ; and for any default in this particular the owner is responsi- ble, not only to the extent of any damage oc- curring to the goods, but even beyond that."! delivery, time of. A carrier is not bound, unless he stipulate absolutely to deliver goods by a particular time, to do more than to deliver in a reasonable time, under all the cir- cumstances attending the transportation. 1 " But if the carrier contract specially to deliver in a prescribed time, he must perform his contract, or suffer the damages sustained by his failure. 8 He is liable upon general principles, where the goods are not delivered through his default, to the extent of their value at the place. Iti the absence of a special contract the carrier is bound to deliver the goods at their destination ; or, at the end of his route, to the next carrier, in a reasonable time according to his usual course of business, 1 or according to contract." A delay caused by an unusual press of business will not make the carrier liable/ nor the loss of a bridge from an unusual freshet. w A carrier is excused by the custom and usual course of navigation. 1 Where two companies are using the same line, the one is not liable for delay caused by the negligence of the other.' A carrier is liable upon general principles where the goods are not delivered through his default, to the extent of their value at the place of their destination ; and this includes the profits of the adventure. 1 If the goods are only damaged, or not delivered in time, the owner is bound to receive them. He will be en- titled to damages, but cannot repudiate the goods and recover from the carrier as for a total loss.' In an action against a carrier for damage done to goods carried, it is enough to prove the good condition of articles when put into his possession and their deteriorated state when re- ceived from him. Any damage resulting from q-5 C. B. (N. S.) 149 ; Id. 882 ; 28 Vt. 180 ; 5 Jur. (N. S.) 648 ; S. C. 2 El. & Bl. 66 ; n C. B. (N. S.) 553 ; 8 Jur. (N. S.) 868. r-Story Bailm. 545, a; 5 M. & G. 551 ; 6 McLean, C. C. 296; 19 Barb. 36; 12 N. Y. 245. What is a reasonable time is to be decided by the jury, from a consideration of all the circumstances, 7 Rich. 190, 409. s-i Duer, 209; 12 N. Y. 99. t-5 M. & G. 551 ; 6 McLean, 296 ; 7 Rich. IQO, 409 ; 6 Duer. 375 ; 8 L. T. (N. S.) 421 ; S. C. 4 B. & S. 466 ; 16 Mo. 484 ; 5 W. &S. 123; 5 N. H. 358; it Mass. 229; 5 Man. & 0.316: 8 T. R.259; 28 Mo. 124; 30 Ala. 608. u-i8 Eng. L. & Eq. 557; i C. B. 637; S. C. 25 Eng. L. & Eq. 347; i Jones (N. C.) 211; 14 Wend. 210; Story Bailm. 545, a ; 14 111. 156; 22 Barb. 278; i Rich. 409 ; Id. 190 ; 2 Kernan, 99 ; Ang Carriers, \ 294 : ii Wis. 407 ; 28 Mo 124, 243 ; 30 Ala. 608 ; 7 H. & N. 400; S.C. 5 L. T. (N.S.)399; I4lowa,2i4. v-g Barb. 36; S. C. 2 Kernan, 245 ; 18111.488. w-7 Rich. 409. Newb. Adm. 464. x-6 McLean, 296; 28 L. J. 51 ; 32 L. T. 94. y-i C. P. 385 ; S. C. 12 Jur. (N. S.) 372 ; 32 111. 116. z-4 Whart. 204; n La. An. 324; Sedgw. Dam. 356 ; 2 B. & Ad. 932 ; see also 12 S. & R. 183 ; i Cal. 108. a-s Rich. 462 ; 12 N. Y. 509 ; 35 N. H. 390. b-2 F. & F. 7q6; 3 F. & F. 77. l-i Conn. 487. e-B. N. P. 69; 3 Kent Comm. 299, 300, 301 ; Story Bailm. bad package will go to lessen the amount of damage. 1 * bad package, internal decay. Losser from natural causes, as frost, d evaporation," or natural decay of perishable articles,* the carrier exercising all reasonable care to preserve them,* and from the natural and necessary wear by care- ful transportation, 6 in the mode to which the carrier is accustomed, or from the defective na- ture of the vessels or packages in which the things are put by the owner or consignor, will excuse the carrier. The carrier is not respon- sible for natural decay or leakage. r So, also, except for damages caused by delay, where the owner selects his own carriage, and loads it ; but the carrier must do all in his power to arrest damage to goods, though he may not have been in fault on account of, or responsible for its occurrence. 11 The owner must bear the damage of loss from dampness of the hold, as one of the accidents of navigation, if it be excepted from the risk, and is no fault of the carrier.' A bill of lading, stating the goods in good order, is only prima facie evidence of that fact and refers to the external appearance of packages. 1 The owner is responsible for loss from defects in the article.^ Lien for. A carrier is entitled to a lien for freight for goods carried j 1 but if he once deliver the goods this lien is waived." 1 Or, if the goods be damaged in a manner for which the carrier is liable, the owner may de- duct the amount of injury from the freight.* But the goods must be carried, and ready for delivery, or the carrier has no right to detain them for freight. But if freight through be paid to the first carrier, lien does not ordinarily attach.? A wrong doer cannot create a valid lien against the real owner.i A passenger carrier has a lien upon baggage for fare.' Car- riers have no lien for a general balance of ac- count. 8 Carrier's liens may be waived in the same manner as other liens. 4 But if a delivery be obtained by fraud, the goods will be restored by replevin." The last carrier upon the route may detain the goods until the whole freight is paid, v and charges during transit of warehouse- men and forwarders. 492, a; 6 Watts, 424 ; 37 Miss. 691 ; Ang. Carriers, JJ 210, 211, 212 ; 4 Kernan, 570; 3 Met. (Ky.)si ; 6 Duer, 375 ; Am. Ry. Times, No. 14 ; 16 111. 502 ; 20 Id. 623 ; 7 L. Reg. 348; S. C. 52 Penn. St. 414; 2 H. & N. 575; 28 Vt. 180 ; 5 Jur. (N. S.) 648 ; S. C. 2 El. & Bl. 66. f- 1 Black. (N. S.) 170; Id. 156. g-zo N. Y. 232; 27 Ga. 535. h-i8 Penn. St. 224 ; 12 La. An. 410; 21 Wis. 21. i-i2 How. (U. S.) 272. j-i8 Id. 231 ; 21 Id. 7. 1-2 Ld. Raym. 752; 6 Humph. 70; 18 111. 488. 111-13 B. Mon. 239, 243 ; 16 111. 408. 11-13 B. Mon. 239, 243 ; 16 111. 408; Snow vs. Carruth, U. S. Dist. Ct. Mass.; 19 Law Rep. 98 ; i Watts. 39 ; 5 Id. 446 ; 6 Whart. 435 ; i Scam. 462; ii Ohio, 303; Lalor'sSupp. to H. & Denio, 163; 6 Gray, 539. 0-16 Johns. 348, and cases cited, p-8 Doug. (Mich.) i ; I T. R. 659; 8 Id. 330; 42 Me. 5>2. g-5 Cush. 137; 8 Gray, 262, 42 Maine, 197: 2 Ld. Raym. 866; 6 Whart. 418; 20 Wend. 267-275. r-Story Bailm. 604; 2 Camp. 631 : 26 Vt. 316. s-6 East. 510; 2 Halst. 108; 4 Burr. 2214; 2 Grant's Cas. 139; 26 111. 195. t-4 B. & Aid. 50: 26 111. 195. n-6 Hill, 43; S. C. 4 Denio, 496 : i Sandford, 248. v-Lalor's Supp. to H. & Denio, 163 ; 19 Wend. 386; 4 Hill, 107; i Strange, 556; i Holt. N. P. C. 383; i Kent Comm. 642: a* Maine, 339 ; 25 Mo. 76. 124 BAILMENTS. A carrier cannot sell goods in satisfaction of lien. w An ownei may pay freight and sue for goods lost. 1 A carrier is bound to keep goods a reasonable time, if they are refused by the consignee.' The carrier's lien does not cover the expense of keeping it until the debt is paid, when it is detained against the will of the debtor, 1 but it covers the back charges.* The lien for freight in favor of the last company is not affected by defaults of the first company. 1 * Carriers have no lien for goods carried for the national government. If an owner accept goods at any intermedi- ate place short of the original destination, he will be liable to pay freight pro rata. & And when the carrier pays for the loss of goods, it is equivalent to delivery, and he is entitled to deduct freight. 6 If goods are unlawfully de- tained, the consignee being ready to pay freight, may maintain trover, without formal tender/ A consignee, indorsing a bill of lading, without recourse,* or a mere agent for the delivery of goods for another, is not personally responsible for freight. 11 As in other cases of lien, a waiver will be presumed by an unconditional delivery of goods ;* but a delivery of a part of the cargo will not operate as a waiver of the lien upon the portion not delivered.* It is a question of fact whether there has been a com- plete delivery. k There is no lien for a general balance ; l such a custom is void. m A carrier's tien does not attach upon loading the goods on ooard, or until the voyage is entered upon," or arhere there is a special contract as to payment. Freight may be demanded before delivery,? but is only payable according to the bill of lading. - Where a carrier claims more than is due, it dispenses with tender of the amount actually due. r Payment of. A carrier is entitled to demand his pay in advance ; but if no such condition is insisted upon at the time of the delivery of the goods, the owner is not obliged to tender the freight, nor in an action is it necessary to allege more than a willingness and readiness to pay a reasonable compensation to the carrier." A refusal to carry excuses any tender of compensation.' Payment of freight and fare will sometimes be presumed. A carrier is not bound to receive goods which he is not accustomed to carry, or when his means of conveyance are all employed, or before he is ready to depart ; v or where prop- erty is publicly exposed to the depredations W-n Barb. 41 ; i Strange, 5^6. x-28 Penn. St. 505. T-3i Law Times, 38; S. C. 2 Hurl. & Nor. 491. z-8 Ho. Lids. 338; S. C. 6 Jur. (N. S.) 761. a-i3 Iowa, 253; 12 La. An. 24. b-6 Allen, 246; n Id. 295; 4 G. Greene, 516; 32 Penn. St. 270. c-i Maine, 301. d-i Nott & M'C. 132. e-i Bay, 101. f-g Cush. 215. jp-a Exch. 37; i C. P. 689; i Taunt. 311 : 10 Watts, 384; 13 East. 399. ii-8 M. & W. 798. i-4 Allen, 212; i Black. 108. J-i Gale, 17. k-Id. 1-s B. & Aid. 350. m-3 Scott, 521 ; S. C. 3 Bing. (N. C.) 99. 11-3 Har. " G. 225; 5 Binn. 392. 0-18 Johns. 157 ;"8 Wheaton.oos ; 12 Moore, 361. p-Law Rep. 2 C. P. 348 : 2 Moore, P. C. (N. S.)277: 14 Gray, 149. q-3 Hurl. & Nor. 715. r-s Id. 931. 8-2 Show. 81 ; Id. 129 and notes; Cro. eic. 262; 2 Show. 327; 8 M. & W. 372; 18 111. 288; i ilton, 499; 12 Iowa, 191; 27 Mo. 17. t-i East. 203; of the mob, w or where goods are not safe to be carried. 1 So, too, he may excuse himself by showing that loss happened through negligence of the owner of the goods in packing or other- wise, or from internal defect, without his fault.* The carrier cannot refuse to carry a parcel be- cause the owner refuses to disclose the con- tents. There should be uniformity in rate of charges." Goods may be rated according to custom." Goods must be received, and carried in the* order in which they are offered. Insurable Interest in Goods. The car- rier has an insurable interest in the goods, both in regard to fire and marine disasters, except such as result from inevitable accident, such as fire by lightning and the like. b Carriers may insure for their own benefit, and their insurable interest continues so long as the liability of carrier continues, even where they employ other carriers. A warehouseman or wharfinger may insure and recover the full value of the goods " in trust." d Carriers, not responsible for loss by fire, may insure goods in their possession, describing them as " goods in trust as carriers," and recover their full value.* Responsibility Carrier's, begins when. The liability of the carrier begins when the goods are delivered to him, or his proper ser- vant, authorized to receive them for carriage. A delivery at the usual place of receiving freight, or to the employees of the company in the usual course of business, is sufficient.' But where carriers have a warehouse at which they receive goods for transportation, and goods are delivered there not to be forwarded until some event occur, the carriers are, in the meantime, only responsible as depositaries;* and where goods are received, as wharfingers, or ware- housers, or forwarders, and not as carriers, lia- bility will be incurred only for ordinary negli- gence. 11 Where goods are so marked as to pass over successive lines of railway, or other trans- portation having no partnership connection in the business of carrying, the successive carriers are only liable from the time of ro.ceiving the goods. 1 A delivery at the usual place cr.' receiving goods with notice to the proper serv i:t of the company is sufficient^ for a carrier is oound to keep goods safely after delivery to 1'ira 'for carriage, as well as to carry safely ;J \khen goods are delivered to be carried, the carrier is 2 Kent Comm. 598-599 and note; 14 Ala. 249, 261. n- 3 Penn. St. 451 ; i Parson's Contr. 649. v-i Ld. Raym. 652; i Ventris, 190; 2 Lev. 69; 3 Doug. 389; 19 Barb. 36. w-i East. 604 ; 20 Wis. 594. x-Story Bailm. 328; 2 Kent Comm. 599; Hodges Rlwvs. 61 Carr. % 125. y-2 Greenl. Ev. 214; 5 Watts, 446; 19 . . s Rlwvs. 613; Ang. Penn. St. 243; 3 Watts & S. 21 ; 31 Maine, 228; n Pick. 41 ; 6 Bing. 743; 22 Vt. 213. z-i6 Ga. 558; 3 C. B. (N. S.) 324. n-4o Mo. 491 ; 13 La. An. 553. t-i2 Barb. 595 c-12 Barb. 595 ; 13 Id. 353, 361. 0-5 F.I. & Bl. 870; S. C. 34 Eng. L. & Eq. 116; i Black. (U. S.| 574, 582 ; 2 Sandf. S. C. 290 ; 8 Gray, 281. e-i Ellis & Ellis, 652. f-20 Conn. 534 ; 2 Carr & K. 680 ; 2 M. & S. 172 ; 16 Barb. 383: Ang. Carr. 129, 147, and cases cited. Jf-24 N. H. 71. h-7 Cow. 497. 1-8 Rich. 246. l-i Wilson, 281: 20 Conn. 354; 9 Ind. 400; 5 Bosw 625 ; 2 Bos. & P. 416; 10 La. An. 776. BAILMENTS. liable from the time of delivery , k but is not re- sponsible on a continuous line of transportation until they receive the goods. 1 An acceptance by an agent is sufficient without a payment of freight. 1 " It is a question of fact whether the carrier took charge of the goods." It is suffi- cient to charge the company that the goods are put in charge of their servants. If goods are kept back by direction of the owner, the company are only responsible as depositaries ;P and if the defendants are both warehousemen and carriers, and receive goods with instruction to forward immediately, they are liable as carriers."! Instructions to forward may be inferred from the course of business, in the absence of express proof. 1 " For Carriage beyond the Com- pany's Road. In the absence of special con- tract, the carrier is only liable for the extent of his own route, and for safe storage and delivery to the next carrier.' He may undertake for the whole route,' and this is presumed when they are connected in business," even though the connection is only temporary. T Carriers are only responsible for safe carriage and delivery to the next carrier according to ordinary usage." Where special directions are given to a carrier they must be followed. 1 Ard it makes no difference that portions of the roi te are by steamboat and other portions by land where no railway exists.' Receiving freight for the entire route binds the carrier to that extent, unless proof be given to rebut that implication.* For Parcels carried by Express, etc. Carriers who allow servants to carry par- cels are liable for their loss," and allowing perquisites to go to agents will not excuse a company. An owner of parcels carried by express may look to the company, 15 and may sue any of the subsequent carriers in the line of transportation, guilty of a default in duty, although his con- tract was made with the first carrier, to whom he delivered the goods. It-i6 Barb. 383. 1-8 Rich. 240; 4 Law J. 38, S. C. nom.; Dav. C. C. Rep. 83; i Hilton, 223. m-2 C. & Kirwan, 680. n-2 M. & S. 172. 0-2 Story 16; 8 Pick. 182 : 12 M. & W. 766 ; 8 C. & P. 361 ; i Car. & M. 145 : 23 Conn. 595 ; 21 Ind. 54. p-4 Foster, 71 ; 7 Cow. 497 ; 7 Mich. 515; 39 111. 335. q-25 Penn. St. 338; 3 Kernan, 569. r-4 Foster. 71. s-i6 Vt. 52; 18 Id. 131 : 23 Id. 186; 6 Hill (N. Y.) 158; 22 Conn. I ; S. C. 22 Conn. 502; i Gray, 502; 4 Am. Law Reg. 234. t-ig Wend. 534; i Florida, 403; 10 Rich. (N. C.) 382; i Hilton, 223: 24 111. 332; Id. 389. 0-27 Vt. no; 3 Sanf. 610 ; 8 Cow. 223 : note F,ds. Am. L. Reg. 4 vol. 238 ; 7 Rich. 201 ; i E. D. Smith, 115 ; Id. 234 ; IT Exch. 790 : S. C. 36 Eng. L. & F.q. 482 ; i H. & N. 517: 28 Law T. 260; S. C. 38 Eng. L. & Eq. 593 ; 5 H. & N. 969 ; 5 Jur. (N. S. 1 ) 1367. v-2 Kernan, 245, 255; 19 Wend. 534: 25 Id. 660; S. C. 6 Hill, 157; 8 M. & W. 421 ; 14 C. B. 255 ; i Parson's Contr, 686-687; 18 Wend. 175; 2 Bing. 170; i Sim. 52 ; 6 Hill, 157. W-28 Barb 485 : 24 N. Y. 497; Davies, 82 ; 46 Barb. 103. x-2o 111. 375; 38 Id. 3815. y-2 H. & N. 702; 9 Ir. Com. L. 474. x-g Iowa, 487; a corporation, established for the transportation of goods for hire between certain points, and receiving goods di- rected to a more distant place, is not responsible beyond the end of its own line as a common carrier, but only as a forwarder, unless it make a positive agreement ex- tending its liability ; 100 Mass. 29 ; i Gray, 502 ; 4 Allen. 520; ii Id. 295, and cases cited; 47 Me. 573; 32 Express companies are responsible as com- mon carriers, and such companies who carry parcels or baggage from one city to another, or from one depot to another, are common car- riers. 11 Omnibus lines and railways are, in the full sense of the term, common carriers." The limitations by which express companies may restrict their responsibilities must be made in such a mode as: I. Presumptively to have come to the knowledge of the owner of the goods, or his agent, authorized to act on his behalf/ 2. They must be of such a natu-r.l and reasonable character that the law can recognize them as not inconsistent with good policy and fair dealing. An agent authorized to procure goods is competent to bind the owner by the conditions accepted byhim. An express company is bound for safe car- riage through its line, and for safe delivery to the next express agent, and in many cases for safe delivery at the point of destination, 11 and cannot be excused from this except by a clear and understanding stipulation to that effect on the part of the employer, and, in a particular which is reasonable, and not against good morals or good policy, 1 and must deliver to the consignee at the earliest moment after arrival, and within the usual business hours ;i and in- convenience is no excuse for omitting personal delivery. k Where goods are sent by carrier to be paid for on delivery, the consignee is entitled to a reasonable time to inspect the goods before he accepts them. 1 Notice brought home to the other party will, in general, control the carrier's responsibility, except for negligence. Carrier's, ends when. The re- sponsibility of a carrier terminates after the arrival of the goods at their destination, and a sufficient time has elapsed for the owner to re- ceive them in business hours. After that the carrier may put them in a warehouse, and is only responsible for ordinary care." And a Vt. 665; 16 Mich. 119, 120; this principle is also laid down in the following cases: 6 Hill, 157; 18 Vt. 131, 140; 23 Id. 186, 209; 22 Conn, i; 23 Id. 457; 24 Id. 468; Contra 19 Wend. 534; 3 Sandf. 610; 24 111. 332; 24 Id. 466; 34 Id. 389; 27 Vt. no; i Fla. 403; 9 Barb. 317. a-23 Vt. 186,203, 20 4 I Parson's Contr. 656; 19 Johns. 235 ; ii Mass. 99 ; 15 Id. 370 ; 2 C. & P. 613 ; 6 Wend. 351 ; 2 Id. 327; Angell on Carriers, ? 101, n. 4; 2 Story, 16 ; 2 Kent, 609 ; 16 Mo. 126 : 29 Ala. 263 ; 19 N. H. 122 ; 15 Ind. 345. b-6 How. 344; 39 Barb 488. C-6 Binney, 129 ; 9 Vt. 407 ; 4 Taunt. 582 ; 15 East. 62 ; 5 B. & Ad. 389: 19 Wend. 534 : 5 Sanf. 180; 22 Penn. St. 522; 5 Cush. 145; 2 E. D. Smith, 195; 3 Barb. S. C. 388 : 15 La. An. 14 ; 32 N. Y. 247 ; i Chitty PI. 134 : 4 C. B. (N. S.) 307, 311. d-i E. D. Smith, 115; 28 Barb 40^; 23 111. 197: S. C. 26 Id. 504; 8 Allen. 189: 2 E. D. Smith, 195; 5 C. B. (N. S.) 336; 7 Jur. (N.S.^ 234 ; 9 Id. 1234 : S. C. i B. & S. 112 ; S. C. 12 C. B. (N. S.) 63 : 6 How. 344 ; 97 Mass. 124 ; 36 Ga. 365. e- 2 Bosw. 589. f-ig 111. 5=6: Id. 578. -7 H. & N. 400; S. C. 8 Jur. (N. S.) 58:5 H.&N. 867. li-6 Allen, 254 ; 1-4 Ohio St. 362 ; 10 Id. 65, citing Id. 145 ; 6 Allen, 486; 32 Mo. 256. j-7 Wis. i ; 17 Conn. 138. fc-6 Bosw. 235; 17 Conn. 138. 1-46 N. H. 49. m-i West Va. 87; 3 C. P. 14; 2 C."& P. 76: 55 Penn. St. 53 ; Id. 140; 21 Wis. 152; 49 Barb. 21, 283 : 15* Mich. 4c8 ; 36 Ga. 635, 532. n-io Met. (Mass.) 472; 27 N. H. 86; 4 T. R. 581: 2 M. & S. 172; 2 Kent Comm. 591,59*; Sterj Bailm. 444. 126 BAILMENTS. carrier's responsibility continues until an actual delivery to the consignee, or at his dwelling or place of business ; if he deliver a parcel to a wrong person, without fault on the part of the owner, he is liable as for a conversion ;P but this mode of delivery has no application to the ordinary business of railways as common car- riers of goods, for they are not boutid to deliver ordinary freight,*! or give notice of their arrival.^ In carriage by water the carrier is, as a general rule, bound to give notice to the consignee of the arrival of goods. r Nothing more is ever required of carriers by ships and steamboats than landing goods at the wharf, and giving notice to the consignee, and keeping the goods safe a sufficient time after to enable the party to take them away ; after that the carrier may put them in warehouse, and will only be liable as a depositary, for ordinary neglect. 8 Generally the consignee must have a reasonable time to remove the goods.' After this the carrier is only liable for ordinary neglect." If the goods arrive out of time, the consignee must have time to remove them after knowledge of their arrival. T So, also, if the company's agent mis- inform the consignee.* When the consignee assumes control of goods the carrier is excused.* The keeping of goods in warehouse at interme- diate points is not for the convenience of the carrier, but the owner of the goods.y If the next carrier has a place of receiving goods, re- sponsibility ceases upon delivery there. 1 Ware- housemen, who are also carriers, are generally held responsible on receipt of goods." Goods addressed by a carrier to his own agent does not terminate the carrier's responsi- bility upon delivery to him. b Where goods have been tendered to the con- signee and refused by him, there is no rule of law that the carrier is bound to give notice to the consignor; he is only bound to do what is reasonable ; he is bound to keep them as car- rier, until the owner or consignee, by the use of diligence, has time to remove them ; when his duty as carrier ceases, d he may put the goods in his own or another warehouse. 8 Where the carrier by water cannot find the consignee, he may exonerate himself, by delivery to a respon- O-s T. R. 380 ; 2 Wm. Bl. 916 ; 3 Wil. 429, 433 ; 32 Mo. 256; 2 Hilton, 71 ; 2 Esp. 693 ; M'Clel. & Y. 136. p-3 Brod. & B. 177: 16 C. B. 163; 32 Eng. L. & Eq 338; 7 Allen, 341; 38 Barb. 574; n Wis 407 q-23 Vt. 186, 209 ; 27 Id. no ; i Parsons' Contr. 661 ; 14 La. An. 335; 14 Id. 411; 33 Ala. 630, 12^.349; 14 La. An. 417. r-Redf. R'ys. 130. 8-4 T. R. 581 ; 8 Taunt. 413; S. C. 2 J. B. Moore, 500; 2 Kent, 605 ; 2 Head. 488. t- 30 Penn. St 247. u-io Met. 472 ; 4 T. R. 581 ; 6 Jones' Law, 343. v-2 Mich. 538; 1463.277; 4 Foster, 71 ; ii Gush. 70; i6I11.502; Id. 561; 9 Penn. St. 114 ; 35 Barb. 305. w-i Gray, 277. x-n Met. 509 ; 6 Id. 542; 14 Wend. 225; 20111.404; Id. 412; Id. 23; n Rich. Law, 337; 6 Mich. 243. y-4 T. R. 583; 32 Mo. 471 K-8 Rich. 240; 4 Law J. 38 ; S. C Mom. Day ; C. C Rep. 83; i Hilton, 223. a-9 Barb. -517. b-i6 N. Y, 515. C-2 H. & N. 575. d-3 H. & N. 182 S. C. . 30 Penn. St. 247; 10 Met. 472; 4 T. R. 581 ; 6 Jones' Law, 343 ; 15 Johns. 39 ; 6 W. & S. 62 ; 32 N. H. 523 ; 7 Foster, 86; 6 Whart. 505. e-io Met. 472 ; i Denio, S; 30 Penn. St. 247, 250 ; 10 Barb. 612; 23 Vt 186, an ; i Gray, 263; 16 111. 502 ; 25 Ind. 434. I'-n Allen, 308. K-4 Esp. 262; i M. & W. 174. h-i Camp. 451 ; M'Clel. & Y. 136; 10 Q. B. 517; 10 East. 530 t-i sible warehouseman.' The carrier's responsi- bility ends when the warehouseman's crane is attached to hoist the goods.* An unlawful seizure, or invalid lien, is no excuse to the car- rier for non- delivery. 11 In carnage by water, the delivery to the consignee must be according to the custom of trade, and the usages of the port, and in regular business hours. 1 A tender to the party entitled to receive the goods will exonerate the carrier, as such, and he will then only be responsible as an ordinary bailee ;J but 1 any reasonable arrangement betwesn the carrier! and consignee as to mode of delivery will be' binding, and the carrier exonerated by delivery in the mode thus stipulated, k and he will be responsible for any injury to the goods resulting from not delivering in conformity to the arrange- ment. 1 In carriage by water, in general, there must be notice to the consignee, and delivery at the wharf, or else the goods put in safe condition, to remain until called for. A carrier cannot charge for carrying to and from the depot, unless the customer requires such service to be performed by him." Carriers Notice restricting. Com- mon carriers may qualify their common law responsibility by special contract, but not so as to ;xcuse gross negligence. oo, also, by notice brought home to the knowledge of the owner of the goods, and assented to by him, the carrier may qualify his responsibility ;P but as a matter of evidence it is received with caution, and the carrier must show the consignor acquiesced to the demands of the notice by making no remonstrance ;i but neither will excuse the carrier for negligence. 1 Notice of one kind will not excuse the car- rier from responsibility of another." A written notice will not affect one who can- not read.' A carrier must see to it that his notice is made effectual," and it must be shown that knowledge of notice came to the con- signor. v A carrier cannot stipulate for exemption from liability for negligence ; w but he may be allowed to stipulate for exemption from responsibility as an insurer." Bosw & Pul. (N . R .) 16 ; 10 Vt. 56 ; 5 Watts & S. 123 ; 3 La. An. 695; 28 N. Y. 78. J-2 3 How. (U. S.) 28. k- 23 How. (U. S.) 28. l-i Blatch. C. C. 173. m-2 Cur- tis C. C. 21 ; 15 111. 473 ; 3 La An. 395 ; 21 Wis. 236 ; i Bailey, 553 : 18 Barb. 32. n-6 C. B. (N S.) 639 ; i C. B. (N. S.)437; 2 Law, T. (N. S.)376; S. C.6 Ji-r.(N S.)oo8. O-8 Penn. St. 479; 23 Id. 532; 31 Id 242 ; Rich. (S. C.) 201. p-s East. 507; sBing.207, 8M.& W 243; 6 How. 344. 3 Me. 228; n Id 442; n N. Y. 491 ; 9 Watts, 87 ; 6 W. & S. 465 ; 8 Penn. St. 479 ; 31 Id 209; i Rich. (S. C.)286; 12 B. Mon.63; 23 Vt 186; 4 Harr. & J. 317; 3 Kas. 205. The N Y courts have dissented from this rule, or held it with such quali- fications as to leave it very little force. 19 Wend. 234 ; 26 Id. 594 : 2 Hill, 623 ; 7 Id. 533; 13 Barb. 353; 14 Id. 524. q-6 How. (U S.)344; 31 Maine, 228; 3 Fairfield, 422 , 21 Ga. 526 ; 7 Law Reg 352 r-3i Maine, 228 ; 4 Butcher, 180. 8-13 Q 6.347. t-2 Starkie's Cases, 279. 11-2 Starkie, 53. v-2 Camp. 415; 10 M. & W. 161 , i Holt N. P. .317; 5 Rawle, 179; 3 Fairfield, 422; Story Bailm 558 ; 4 Bing. 218 ; 3 Camp. 27 ; 3 Bine. 7 ; 16 Mich 243 3 H. & N. 813 ; 2 Starkie, 461 ; 36 & C. 601. w-23 Vt. 205, and cases cited; 32 Penn. St 414; 3 Id 242; 10 III. 136. BAILMENTS. 12? It is reasonable to claim exemption from risk (n transporting fresh fish." So, in carrying dogs and horses, unless a value is declared, and a premium above that value paid/ for a fanciful value is often attacked to these animals, and these limitations must be claimed at the time of the delivery to the carrier, 1 and the burden of showing the reasonableness of the condition annexed to the earner's undertaking devolves upon the carrier." The exception of one risk cannot cover another. b A carrier is always responsible for negli- gence." NOTICE FORMS. See "CONDITIONS" in "BILLS OF LADING," above. Stoppage in trans'.tu. Stoppage in tran- situ* is the right which resides in the vender of goods upon credit to recall them upon discov- ering the insolvency of the vendee, before the ijoods have reached him, or any third party has acquired bona fide rights in them. 6 A carrier is liable if he do not surrender the goods to one having the right of stoppage in transitu,* but may delay them until that right is determined.* The right to stop goods in transitu is nothing more than the extension of the lien which the vender has on all sales, for the price, until after delivery (so long as the goods are under the control of the carrier, 11 but not when they reach the consignee's agent for another purpose), 1 to the very point of the goods coming to the actual custody of the vendee, or his agent.J Carriers are compelled to solve the question of the claimant's right (upon admonition by telegraph from an unknown party miles dis- tant), at their peril. k Conflicting claims of this kind may be deter- mined by replevin, or interpleader, 1 or the car- rier may deliver the goods to the rightful claimant, and defend against the bailor. 1 " COMMON CARRIERS OF PASSENGERS. Com- mon carriers of passengers are bound to carry all who offer." They are responsible for the utmost care and watchfulness, and this extends to everything connected with the transporta- tion.? They are not responsible as insurers of the safety of their passengers as common car- x-8 W. R 651 ; S. C. 3 H. & C. 337. y-2 B. & S. 122 : S. C. 6 Jur. (N. S.) 954. 1-9 Law, T. (N. S.) 86 15 IT. Com. L. 37 ; i Jur. (N. S.) 12 ; i L. Bl. & S. 112 ; S.C. 7 Jur. (N. S.)i234. a<> Jur. (N. S.) 914; S. C. 10 H. Lds. Cas. 473 ; 15 C. B. (N. S.) 582. 6-52 Penn. St. 382. c Law Rep. 3 Exch. 9. ^i-" In the 6a.ssa.ge" merchandise is said to be " in transitu " while on its way to the consignee, Tayler's L. Gloss, p. 201. e-2 Kent Comm. 540 etseq.; i Henry Black. 357 ; S. C. 6 East. 21 ; S. C. 2 T. R. 63 ; i Smith L. Cases, 388 and notes, where the whole law, Eng. & Am., on the subject will be found. See 12 Pick. 313. f-j Taunt. 169 ; 3 East. 381 ; 4 T. R. 260. -5 C. B. (N. S. ) 149 ; Id. 882 ; 28 Vt. 180 ; 5 Jur. (N. S.) 641 ; S. C. 2 Bl. & El. 66 ; n C. B (N. S.) 553 ; 8 Jur. (N. S.) 868. b. 4 Man. & Gr. 1080; 6Duer. 606; 4 C. B. 618; S. C. 5 Jur. (N. S.) 348 ; 8 Taunt. 83 ; i M. & W. 20; 2 Id. 372 ; $T. R. 464 ; 4 Bing. 516 ; 3 Bos. & P. 119 ; 9 H. R. 108 ; S. C. 6 B. & C. 107. 10 M. & W. 436. I-i8 How. (U. S.) 231 ; 33 Wend. 611 ; 20 Vt. 172. J-I2 Pick. 313. k'34 Vt. 49 : 5 Taunt. 759 ; i B. & Ad. 450 ; Story Bailm. 582; L. Rep. i Adm. 370; L. Rep i P. C. 219 ;|L. Rep. 6 Eq. 44. 1-7 Bing. 399 ; 10 Id. 246 ; 18 Vt. 186. lll-xi Vt. 323; 26 Id. 707 ; 37 Barb. 122 ; i Duer. 79 ; Story Bailm. 450 ; i B. & Ad. 458. 11-19 Wend. 239 : a N. H. 486 ; 15 111. 472 ; 2 Sumn. C. C. 221 ; 3 Brod. 9 riers of goods are. But they are bound to the very highest degree of care and watchfulness in regard to all their appliances for the conduct of their business ; so that, as far as human foresight can secure the safety of passengers, there is an unquestionable right to demand it of all who enter upon the business of passenger carriers."! And it will make no difference if the passenger do not pay his fare ; r so also where the train is hired for an excursion, 1 or is undef control of State officers.* Passenger carriem are not responsible for accidents without fault ^ they contract only for their own acts. T They' must adopt every precaution in known use. w It is their duty to inform passengers of peril requiring caution to escape." A person pur- chasing a ticket becomes a passenger, and is entitled to protection on reaching his seat in the carriages.? Passenger carriers are bound to exclude disorderly persons from their carri- ages;* and a company is bound to fence its stations so as to hinder passengers entering by a dangerous way.* A passenger carrier who attempts to carry ordinary passengers and sol- diers at the same time is responsible for the consequences. 1 " The passenger must be ready and willing to pay such fare as is required by the established regulations of the carriers in conformity with law. But an actual tender of fare or passage- money does not seem requisite in order to maintain an action for the absolute refusal to carry, and much less is it necessary in an action for any injury sustained. The rule of law is the same in regard to paying fare in advance that it is as to freight, except that the usage in the former casejbeing to take pay in advance ; a passenger is expected to have procured his ticket before he had taken passage ; and the law will imply payment according to such usages. d Carriers of passengers are bound to carry for the whole route for which they stipu- late, and according to their public advertise- ments and the general usage and custom of their business. 8 But they are not bound to carry persons of offensive and disorderly con- & B. 54 ; 9 Price, 408. 0-2 Esp. 533 ; 17 111. 496 ; f Met. 274 ; 2 Camp. 79 ; i C. & P. 636 ; Peake's Cas. 8:0. 9 Bing. 457; 13 Pet. (U.S.) 150,181,192. j-i6 Vt. 566 ; 2 B. & Ad. 169 ; 4 Clarke (la.) 541 ; 3 Bing. 319 ; ii Gratt. 697; i C. & P. 414; 13 Pet. (U. S.) 150, 181, 192; 21 Conn. 557; 13 Id. 310; 13 Wend. 611, 626; i McLean, 540; 2 Id. 157; i Gill. 406; 19 Wend. 236; 21 Conn. 245 ; 12 La. An. 84. q-2 Esp. 533 ; 17 111. 496. r-Hodges on R'ys, 621 ; 12 C. B. 578 ; S. C. 26 Enj. L. & Eq. 443; 5 Ind. 340 ; 15 N. Y. 444; 2 Redf R'ys, 251, pi. 5 ; 21 Ind. 48 ; 30 111. 9 ; 25 N. Y. 442 ; 18 111. 416; 14 How. (U. S.) 843 ; 16 Ind. 469. 474 ; 26 Barb. 641; 29 Id. 602; 37111.484. 8-5 Exch. 787; S. C. Eng. L. & Eq. 360 ; 8 Ohio (N. S.) 570 ; 20 ill. 235. t- 20 Penn St. 497. u-Seeante, DUTY AT COMMON LAW, RULE OF DAMAGES, etc. v-a6 111. 373 ; 23 Id. 357 ; 18 N. Y. 408, 534; ii C. B. (N. S.) 587, 594; 5 L. T. (N. S.) 682 ; S. C. 7 H. & N. 1037. w-2 F. & F. 730 ; n Allen, 312; i Moore P. P. C. (N. S.) 3 30 ; i Wallace, 543; 22 Ind. 26; 5 Bosw. 699. x-n Minn. 277; 21 Conn. 245, 254; i Camp. 167; Law Rep. 3 C. P. 216. y-8 Allen, 227. 1-7 Am. L. Reg. (N. S.) 14 : S. C. 53 Penn. St. 512. a-6 C. B. (N. S.) 923. ^-34 Conn. 554. C-6 C. B. 775 ; Story Bailm. g 591 ; i East. 203 ; 2 Kent. Comm. 598, 599. d-3 Penn. St. 451. e-i Campb. 167 ; Story Bailm. \ 600; 19 Wend. 534; 8 Eng. 'L. & Eq. jfe. 128 BAILMENTS. duct, or those infected by contagion, or otherwise offensive in character, health, or habits, as to be unsuitable companions for other passengers.' By-laws or Statutes. It is incident to all corporations to enact by-laws or statutes for the control of their officers and agents, and to regu- late the conduct of their business generally. In the case of railways this includes the regu- lation of the conduct of passengers and others who are in any way connected with them in business ; but such regulations must be reason- able and not against law.* By-laws in viola- tion of common right are void. h By-laws are not required to be in any particular form, un- less required by express provisions of the char- ter or laws of the State. 1 Railways may law- fully discriminate between fare paid in the cars and at the stations.! They cannot refuse to be responsible for baggage. k The by-laws or statutes operate upon the members of the cor- poration from their promulgation, and upon all others from the time of knowledge of the same. 1 Regulations for the accommodation of passengers, during the passage, must yield to the right of others to be carried ; m this is the general practice in all modes of transportation in America. By-laws of a company must be published." As to Passengers. Passenger carriers may establish reasonable regulations in regard to the conduct of passengers, and discriminate between those who conform to their rules in regard to obtaining tickets, and those who do not requiring more fare for the latter. Passen- gers may be required to go through on the same train or forfeit the remainder of their tickets.? Where one procures a railway ticket marked "good for this trip only" with the view to go in the next through train, but is unexpectedly detained, he may lawfully claim to go upon the ticket on a subsequent day.i Railway passen- gers, when required by the regulations of the company to surrender their tickets in exchange for the conductor's checks, are liable to be ex- pelled from the cars for a refusal to comply yrith such regulation, or to pay fare again. r A passenger is liable to be expelled from the cars for refusal to exhibit his ticket at the request of the conductor in compliance with the stand- ing regulations of the company. 8 Railway companies may exclude merchandise from their passenger trains. A company is not bound to carry a person daily upon his paying fare, when f-2 Sumn. C. C. 221; 8 N. H. 523. g--6 Q. B. 383; 14 M. & W. 76; 2 Peere Wms. 207; Ang. & A. c. 10; 2 Kent Comm. 296; i Duv. 143; 5 Mich. 520; 5 Dutcher, 293; 6 Jur. (NT S.) 1113; S. C. 9 Id. 1081 : S. C. 4 B. AS. 1059; S. C. 10 ; Ho. Lds. Cas. 404; 8 Jur. N. S. 640. ll-s Conn. 391 ; 17 Vesey, 315 ; 5 Coke, 64; 2 P. Wms. 207. i-Walford, 249 ; Hodges, 552, 553. J-34 N. H. 230 ; 29 Vt. 169 ; 18 111. 460 ; 53 Me. 279 ; 10 111. 353, 43 111. St. L. A. & T. H. R. R. vs. South, k-io Exch. 15 ; S. C. 28 Eng. L. & Eq. 439. 1-6 Jones Law, 558. m-s Mich. 520. 11-12 C. B. 313; S. C. ii Eng. L. & Eq. 546; 5 Am. Law. Reg. 364; see also upon the subject of by-laws to passengers on railways, Redf. R'ys, 28 and notes. 0-18 111. 460; 34 N. H.23o; 29 Vt. 160; 7 Met. 2 (Mass.) 596; 12 Id. 482; 4 Zab. 435; 39 Eng. L. & Eq. 143 : Redf. R'ys, 28 and notes : 24 Conn. 249. p-n Met. (Mass.) 121 ; i Am. R'y Cas. 601. q-24 Barb. 514. r-22 Id. 130. 8-15 Am. K y ( 15 N. Y. his trunk or trunks contain merchandise, money, and other valuable matter, known as " express matter," where its by-laws exclude merchandise from passenger trains and confine its transportation to freight trains. 1 An officer in fact may enforce the rules of the company," but is liable for an excess of force." A company cannot enforce a rule against a passenger where they are in fault. T As to Stations and Grounds. Railway companies may exclude persons without busi- ness, w and regulate the conduct of others. The superintendent may exclude from the stations and grounds persons who persist in violating reasonable regulations prescribed for their conduct, and thereby annoy passengers and interrupt the officers and servants of the company in the discharge of their duty. 1 A railway freight station or freight ware- house is not exempt from search-warrant; and it is not necessary that such warrant should be executed during the usual business hours, or that the officer should consult the person who has charge of such station.? Damage Rule of For Injury of Passen- gers. The party injured must recover all his damages, present and prospective, in one ac- tion ; z but these should be obvious and not merely conjectural.* New trials are allowed for excessive damages b only in extreme cases.* The plaintiff may show the value of his time lost. d There is no well-defined rule for esti- mating damages, it generally rests very much in the discretion of the jury. 8 In an action or loss of service, mental anguish cannot be in- cluded/ A woman claiming damages for per- sonal injury cannot prove the state of her family or death of her husband.* The right to damages is a question of law ; the amount, one of fact. h Special damages cannot be recovered unless alleged and proved. 1 A plaintiff who claims damages for loss of time and business, may prove the nature of the busi- ness, and probable profits.! Duty of connecting Companies to Passengers and others. A company is bound to keep its road safe ; k and they cannot excuse themselves from liabilities for injury to passengers carried over any part of their road because it was oc- casioned by the act of another company. 1 Passenger carriers are bound to make their landing-places safe. But those who ride upon freight trains by favor, can only require t-5 Law Reg. 364. 11-34 N. H. 320; 2 Dutch. 224. v- i Law R i Q. B. 7 ; S. C. 12 Jur. (N. S.) 331. W-iI C. B. 46; S. C. 36 Eng. L. & Eq. 253 ; 7 Met. 596; S. C. i Am. R'y Cas. 389 ; 12 Met. 482. x-7 Met. 596 ; 8 N. H. 523; 12 Met. 482 ; S. C. i Am. R'y Cas. 410. V-4i Maine, 233. z-n Ad. & Ell. 301 ; 18 Vt. 252 ; ao Barb. 282 : 10 Id. 621 ; 10 La. An. 33. -2o Barb. 282 ; jo Id. 621 : 36 N. H. 9. b-i2 Barb. 492 : 10 Id. 461 ; 20 Id. 282 ; 18 111. 460. c-9 Johns. 45 ; 10 la. 443. d- 23 Wend. 425. e-n Grattan, 697. f-io La. An. 33 ; 10 Am. R'y Times, No. 12 ; 6 Am. L. Reg. 355. R-8 Gray, 45. h-4 H. & C. 232; S. C. Law Rep. i Exch. 117; 12 Jur. (N. S.) 233? i-47 Maine, 419". J-ss Penn. St. 287. U-i Ad. 5, pi. 7, 8, am Foster", 9 :"io M. & W. 109 ; 27 Vt. 377; 396"; 16 Mich. rSof 37 N." Y. 287. U-i A~d! & El. 223; Id. 230 ; Redf. R'ys, \ 145, pi. 7, 8, and note. 1-4 dish. 400. in-g Foster, 9 ; 10 M. & W. 109 ; 27 Vt. 377; 19 N. Y. 127 ; 23 Ind. 534 ; 2 Seld. 397 ; 3 C. B. N. S. 346; 6 Id. 923 ; 8 El. & Bl. 1035 ; S. C. 31 ; L. T. la. BAILMENTS. 129 such security as is usual upon such trains. Owners of all property are bound to keep it in such a state as not to expose others to injury, as the fencing off a hole or area adjoining a highway, and dangerous to passers-by;" and this rule extends to railways, where persons are right- fully on them ; and one who keeps open works is bound to keep them safe for use.P Corpora- tions are presumptively responsible to the same extent as natural persons in the same situation. t Resulting from the Sale of Through Passenger Tickets in the form of Coupons. The general duty of common carriers of pas- sengers is not the same as where goods and baggage are ticketed through/ Through tick- ets in the form of coupons are to be regarded as distinct tickets for each road, sold by the first company as agents for the others, and may be used when the holder elects. 8 The first company are to be regarded as agents for the others.* If the business of the entire line is consolidated, it is different, 11 but in general it is not regarded as a case of partnership.* The companies being in different States and king- doms makes no difference.* The first com- pany were held liable for baggage not checked when demanded. 1 So, also, for an injury oc- curring on another line over which they had sold tickets.? A stage route intersected by a ferry hired to carry the coaches over, is responsible for the safety of passengers on the ferry.* The sale of through tickets for an entire route composed of several successive com- panies of carriers having no partnership con- nection, does not render each company liable for the injuries to passengers occurring on any part of the route.* Free Pass. One who rides upon a free pass, or in the baggage-car, is not thereby deprived of his remedy against the company for injuries received through their want of due care, pro- vided he was at the time a passenger and without fault on his own part. Injuries Wrongful Expulsion from Cars. Where a passenger is wrongfully expelled from cars, the company is not held liable for exem- plary damages unless they ratified the expul- sion, 11 but upon principle the company should be liable for special damage. And in such cases they are trespassers if they refuse to de- liver baggage. The company must keep strictly to the terms of any by-law regarding the production of tickets when called for. d Conductors are bound to exclude disorderly or jbffensive persons. 6 One wrongfully expelled m-o Foster, o ; 10 M. & W. 109 ; 27 Vt. 377 ; 19 N. Y. 127; 23 Ind. 534: 2 Seld. 397; 3 C. B. N. S. 346; 6 Id. 923 ; 8 El. & Bl. 1035 ; S. C. 31 : L- T. 12. n-2 Carr. & K. 661 ; 6 N. H. 147; 6 Johns. 90; 26 Vt. 602 ; 3 H. & N. 164 : S. C. 31 L. T.; n Ad. & El. 233; ii Exch. 257; 5 Duer. 674. 0-14 Penn. St. 141. p-3 H. & Norm. 164; 4 Jur. (N. S.) 636; 5 B. & A. 837. r-4 E. D. Smith, 181. 8-29 Vt. 421 ; 22 Conn, i ; S. C. Id. 502; 26 Ala. 733: 2 E. D. Smith, 184; 15 Mich. 332. t-29 Vt. 421; 22 Conn, i; S. C. Id. 502; 26 Ala. 733; 2 E. D. Smith, 184; 31 N. Y. 661. u- ii Wend. 572; S. C. 18 Id. 175: 4 Sneed, 203. v-26 Ala. 733; 19 Barb. 222; 16 Md. 331. W-2g Barb. 35; 17 N. Y. 306. x-7 Allen, 3*0. y- 7 H. & N. 987; S. C. 8 Jur. (N. S.) 1013. z-n Minn. 277. a-22 Conn. 502 ; from the cars is not entitled to special damages, unless it occurs clearly without his fault.' Where a ticket is lost, the person is liable to pay fare. K One wrongfully put on shore, by a passenger boat, short of his destination, may show, to enhance damages, that it was done in an insulting manner. h Fault of the Party Injured. Where a passenger is injured on a railway, the prima facie presumption is that it resulted from the want of due care on the part of the company. 1 But, nevertheless, it is competent to prove that the damage occurred without their fault. 1 From leaping from Carriages, etc. Passengers may recover if they have reasonable cause to leap from the carriage and sustain in- jury^ but not where their own misconduct ex- poses them to peril. k But where one incurs peril by attempting to escape danger, the author of the first motive is liable for all the necessary or natural consequences. 1 But one leaps from cars because the train passes the station at his own risk, m but may recover compensation for the inconvenience, loss of time, and labor of travelling back. If a person being safely seated is injured while leaving the cars, he can- not recover if he was guilty of negligence which contributed to his injury.* The com- pany are bound to stop their trains at all stations where they profess to leave passengers a suffi- cient time for them to alight. If they do not, and one is injured in consequence, while at- tempting to leave the cars, the company are liable. 9 No recovery can be had when the passenger leaves on the wrong side.P Married Woman. In a suit by the husband for injury to the wife, he may recover the expenses of the cure.i But such expenses cannot be recovered in a suit on behalf of the wife for her personal injuries. 11 Law of Place. Corporations can only act in conformity with the law of the State or sov- ereignty by which they are created ; hence, they are liable as carriers only, to the extent, and in conformity to the law of the State o jurisdiction where the contract was made or duly undertaken ; and it will make no difference whether the action is in form " upon contract" or " for tort" (or wrong), this is in conformity to the general rule of law, upon the subject of contracts and torts. 8 Liability What -will excuse a Company from carrying Passengers. A company is not bound to carry where the carriages are full. 29 Vt. 421 ; 2 E. D. Smith, 184 : 19 Barb. 222 ; 26 Ala. N. S. 733 ; Redf. R'y, 158, and cases cited, fo-3 R. I. Redf. R'ys, ? 225 C-3 Gray, 328. d-Law R - O. B. 7 ; S. C. 13 Law T. (N. S.) 231 ; Law Rep. I 6. B. 10 : S. C. L. T. (N. S.) 323. e-n Allen, 304; Id. 306. f-Law Rep. 3 Q. B. 25. -30 N. J. 388. h-8 Jur. 875. i-Am. L. Reg. (N. S.) 715, 721 ; 36 Mo. 418; 14 How. (U.S.) 468; 7 Ind. 474: 5 Id. 340; 30 111. o. j-9 Met. i; i Sandf. 89; 13 Pet. (U. S.) 181 ; 17 III. 406 ; 24 Ga. 356 : i Stark. 493. 11-15 III. 468. 1-23 Penn. St. 147, 150; i McLean, 510. 550. m-i Id. 510, 550; 9 La. An. 441 : 40 Miss. 374. n-6 Gray, 64. 0-32 Penn. St. 292. p-33 Id. 318. q-3 Comst. 489 ; 20 Wend. 210; 14 B. Mon. 204. r-2i Conn. 571; 3 Comst. 489 ; 20 Wend. 210; 14 B. Mon. 204; 50 Barb. 628. S-Q jur- (N. S.) 522; S. C. i H. & C. 219; 8 Jur. (N. S.) 568. BAILMENTS. But it should undoubtedly be an extreme case to justify the absolute refusal of a passenger.* They are not bound to carry disorderly persons or those otherwise offensive as infected by contagion, or offensive in person or conduct." A carrier is liable in tort for breach of duty aside from any contract/ The purchase of a ticket does not constitute the contract;" the company has a right to impose reasonable reg- ulations as to the carriage of passengers.* of a Carrier where both parties are in fault. Railway companies are not liable as passenger carriers unless they are in fault/ nor when the plaintiff's fault contributes directly to the injury; 1 but where there is an intentional wrong on the part of the defendant, he is lia- ble, notwithstanding negligence on the part of the plaintiff.* The plaintiff may recover for gross neglect of the company, although in fault himself, but not where he knew his neglect would expose him to injury. And he may re- cover, though riding in the baggage car. d But the company does not owe such duty to wrong- doers.* The plaintiff may recover, although out of his place on the train/ but he must be lawfully in the place where injured.* Passen- gers are bound to conform to the regulations of the company and directions of conductors. 11 Proof of the company's negligence is on the plaintiff, 1 negligence on the plaintiff's part is not presumed ;J and after proof of presumptive negligence, the company must show that no reasonable precaution could prevent it. k One crossing a railway track must look out for trains or he cannot recover. 1 Rushing across a track when a train is approaching is foolhardy mis- conduct, and no recovery can be had for the injury. So for injury the result of heedless- ness." Negligence to preclude recovery must directly tend to produce the injury. Ordina- rily, proof must be given of defendant's negli- gence, and that but for such negligence the injury would not have occurred.? Passenger carriers must provide suitable accommodations for all passengers, - then passengers must con- form to the usages and rules of the company or fail to recover. 1 " Where a passenger is in- jured by the fault of carrier's employees, he may recover, but not if done by his own invi- tation.* t-i6 Jur. 196; S. C. 8 Eng. L. & Eq. 362; i Redf. R'ys, $ 131 ; Id. { 26, . 6. 11-2 Sumner, 221 ; 8 N. H. 523; 19 Wend. 239; 10 N. H. 486; 15 Hi. 472; 3 Brod. & Bing. 54; S. C. 9 Price, 408. v-2 El. & El. 844; 19 C. B. (N. S.)3io; S. C. ii Jur. (N. S.) 672. w-g C. B. (N. S.) 310; S. C. ii Jur. (N. S.) 730; 13 L. T. (N. S.) 20. x-it Ohio St. 457. y-22 Vt. 213; ii East. 60 ; 6 Whart. 311 ; 19 Wend. 399 ; 21 Id. 188 ; Id. 615; 19 Conn. 507 ; 12 Barb. 492 ; 16 C. B. 175 ; 30 Eng. L. Eq. 473 ; n Allen, 500 ; 5 Barb. 337 ; 8 Id. 368 ; 8 Rich. 120; 16111.548; 13 Cal. 599. -22 Vt. 21-?; i Ad. & El. (N. S.) 29 ; i Moo. & M. 169 ; 2 C. & P 421 : Id. f /> _n_ _ _ \ O- /-* _ /~\ T> __ 601 ; 6 Cow. 189, 119 ; 3 M. & G. 59 ; i Q. B. 29 ; i Conn. 566; 23 Id. 437; 26 Id. 591 ; 10 M. & W. 546; C. & P. 190; 24 Ga. 75; 26 III. 255. a-2 Hill (N. Y. , 281 ; 3 M. & W. 244 ; 18 Ga. 679, 686 : i Dutcher, 556 ; 21 Barb. 339; 16 Id. 558; 17 Barb. 94; 27 Id. 528; 4 Zab. 268, 824 : 10 Ga. 440. fo-ig Conn. 507 ; 4 Bing. 628; 3 B. & Aid. 304; 8 C. & P. 691 ; jo C. B. (N. S.) 470; 7 H. & N. 736; 3 B. & S. 244. c-Butterfield vs. Forrester, 10 East. 60. l-t Duer, 571 ; aa Barb. 91 ; 43 where one company uses the track J another. A railway company which receives the cars of another company upon its track, placing them under the control of its agents and servants, and drawing them by its locomo- tive power, assumes toward the passengers the common liability of passenger carriers ;' and it makes no difference in regard to the liability of the company to passengers passing over their road, whether they purchased tickets of them or of any other railway company or agent author- ized to sell such tickets.* Passenger carriers who run over other roads than their own are responsible for the entire route, and must take the risk of the negligence of the employees of the other companies." -where trains do not arrive on time. A company is liable for not delivering a passenger according to contract,' but they may excuse themselves by special notice. They are liable for damages caused by the discontinuance of a train." Carriers not performing according to previous notice are liable to all injured, as for breach of duty,* but are not liable for an injury caused by a stage company connecting with the railway J They will not be liable where pas- sengers mistake the place of changing cars, and, by remaining in the same car, are carried out of their intended route, upon proper notice of the course of their trains and places of chang- ing cars.* In order to enable the plaintiff to recover special damages claimed to have been sustained by reason of the failure of a contract to carry him as a passenger, it must appear clearly and by affirmative proof that the dam- ages were sustained without any fault on his part, and in spite of his utmost efforts to avoid them. Negligence what is prim a facie evidence of. Where a stage coach is overturned when laden with passengers, it is regarded as prima facie evidence of negligence in the proprietor or his servants. And where any injury occurs to a passenger upon a railway, it has been consid- ered prima facie evidence of the culpable ne- glect of the company. Payment of money into court in actions against. Payment of money into court where the declaration in tort is general, only admits damages to the extent of the amount paid. Mae, 501 ; 6 Duer, 382. e-8 Barb. 368; 4 Penn. St. 375. f-23 Id. 532. g-i Duer, 571-2. to-8 Penn. St. 479; 21 Id. 203; 7 Porter (Ind. ) 474 ; 9 Rich. 84. I- 7 Gray, 92. j-i8 N. Y. 248 ; 27 Vt. 62 ; 37 Id. 501. It- 18 N. Y. 408. l-i8 Id. 422. 111-24 Id. 430. 11-4 H. & N. 781. 0-27 Conn. 393 ; 8 C. &B. (N. S.) 56?; 7 Jur. (N. S.) 168. p-ii Ir. Com. L. 377; i C. B. (N. S.) 588 ; S. C. 8 Jur. (N. S.) 796 ; 2 H. & C. 722 ; 13 C. B. (N. S.)4 3 o; S. C. 9 Jur. (N.S.I 970; 3 H.&C. 596; 16 C. B. (N. S.) 399 ; 24 C. B.(N. S.) 54- q-34 N- Y. 670. r-7 Allen, 207 ; 8 Id. 234; 37 N. Y. 287 ; 53 Penn. St. 460 ; 10 Allen, 387. s-Law Rep. 3 C. P. 368, 374 & n. t-9 Cush. 24. u-5 Wall. 90; 3 Exch. 146. v- Hodges R'ys. 619; 19 L. Rep. 379. w-i6 Jur. 196; S. C. 8 Eng. L. & Eq. 362 ; 5 El. & Bl. 860; i H. & N. 408; S. C. 38 Eng. L. & Eq. 335; 13 Vt. 388 : i Redf. R'y s > 2 131. n - M- x-32 Miss. 17; 36 id. 660. y-2 Conn. i. z-6 Duer, 523. "-9 Bosworth, 412. 0-13 Pet. 181. C-s Q. B. 747 ; 8 Penn. St. 483 ; 25 III. 471 ; 16 Barb. 113, 356 ; 20 Id. 282 ; Redf. R'ys, $ 149, *. *, and cases cited. BAILMENTS. But in cases of special contract it admits the contract and breach alleged." 1 PRIVATE CARRIERS. Private carriers incur the responsibility of the exercise of ordinary diligence only like other bailees for hire. 6 for compensation. Private carriers are bound to the same diligence and skill as pru- dent and careful men ordinarily exercise in similar employments. They must do every- thing, and omit nothing, which careful men are accustomed to do in similar business where they themselves are both the carriers and owners of the goods. Warehousemen and forwarders are responsible to the same extent as private carriers/ So, also, tow-boat owners and wharf- ingers.* Deputy postmasters are bound to care and diligence, 11 but not as common carriers. 1 A common carrier may become a private car- rier.i Where goods are injured while in the custody of a private carrier or warehousemen, the burden is upon him to show that it occurred from some other cause than his want of care, diligence, or skill. k The recovery of judgment without satisfac- tion, against a private carrier, in an action of assumpsit, for not transporting and delivering the articles according to his contract, is no bar to an action against a third person who has purchased the property of the bailee. 1 -without compensation. A contract to convey without compensation is not binding until entered upon ; then it must be faithfully performed ; and if any damage befall the prop- erty in the course of transportation, through the fault of the carrier, he is responsible for it ; m but his duty depends upon the nature of the property. 11 It is his duty to carry according to his known custom and usage. If injury hap- pen to the property while in the custody of the bailee, the interference of the bailor to remedy the evil will not release the bailee from the consequences of his default.? A gratuitous bailee has such an interest in the property while in his custody, and is so far responsible for its security that he may maintain an action against a stranger for any injury to it.i Warehousemen and wharfingers are not gra- tuitous bailees. 11 COMMISSION is an undertaking without reward to do something for another with re- spect to a thing bailed. 8 Eq. 258: 16 Vt. I-i7 Jur. 532 ; S. C. 20 Eng. Law 286; jrCush. 581; 6M. & W. 9; 3 Id. 486; 6 Exch. 123 ; S. C. 3 Eng. L. & Eq. 548. e-Story Bailm. g 495 ; 13 Barb. 481 ; i Wend. 272 : i Hayw. 14 ; 2 Dana, 430; 4 Taunt. 787; 6 Id. 577; 26. & 8.417; 2 C. B. 877; see ante, COMMON CARRIER, f-8 M. & W. 258; 1 Peake N. P. C. 114; 26 Miss. 253; 9 Wend. 268. e- 13 Wend. 387; 2 Barb. S. C. 326; 3 Hill, 545. E- Cowp. 182 ; 5 Burr, 2709 ; 4 Id. 2149 ; 3 Wils. 443. I- 2 Bay, 551 ; 8 Watts, 453. j-i Wend. 272. k-g C. & P. 632. 1-13 N. H. 494. m-2 Ld. Raym. 909; S. C. Com. 133; 3 Mason, 132; i Stark, 237 ; i Swan. St. 452. 11-38 Me. 55 ; 18 Id. 74 ; 14 S. & R. 275 ; 28 Vt. 180 ; i Moore & P. 583. 0-38 Me. 55 ; Wright, 528 ; 20 Mo. 519. p-7 Watts, 542. "q-i B. & Aid. 59. r-n Q. B. 43. 8-Rutnerford Inst. 105. t-Jones Bailm. 36, 117; o Masts. 470. A bailment of goods to be kept by the bailee without reward, and delivered according to the object or purposes of the original trust. Story Bailm. f 44, A contract, by which ope of the contracting par- DEPOSIT is a naked bailment of goods to be kept for the depositor without reward, and to be returned when he shall require it. 1 An irregular deposit arises where one depos- its money with another for safe keeping, in cases where the latter is to return, not the spe- cific money deposited, but an equal sum. A quasi deposit arises where one comes law- fully into possession of the goods of another by finding. The rule of responsibility in deposits is, that the bailee must act in good faith, and in the manner as he conducts his own affairs ;" and special undertakings by the bailee are binding upon him to the extent understandingly made. T The degree of diligence to be exercised by the bailee depends upon circumstances ; he is not responsible for theft or robbery without his fault. w A depository is bound to take only ordinary care of the deposit, which will, of course, vary with the character of the goods to be kept, and other circumstances.* He has, in general, no right to use the thing deposited/ unless in cases where permission has been given, or may from the nature of the case be implied. 1 He is bound to return the identical deposit, and in the same state in which he received it ; if it is lost, or injured, or spoiled, by his fraud or gross negligence, he is responsible to the extent of the loss or injury.* He is bound to restore, not only the thing deposited, but any increase or profits which may have accrued from it ; if an animal deposited bear young, the latter are to be delivered to the owner. b In case of irregular deposits, as those with a banker, the relation of the banker to his cus- tomer is that of debtor or creditor, and does not partake at all of a fiduciary character. It ceases altogether to be the money of the depositor, and becomes the money of the banker. It is his to do what he pleases with it, and there is no trust created. The banker is not liable for interest unless expressly contracted for ; and the deposit is subject to the statute of limitations." 1 If the bailee puts the goods to a use not jus- tified by the bailment, he is guilty of a conver- sion, and responsible for all losses. 6 In cases of a joint deposit, where there is a special undertaking to keep and restore to all jointly, the bailee cannot deliver to one. 8 ties gives a thing to another to keep, who is to do so gratuitously, and obliges himself to return it when he shall be requested. See EXECUTIONS; PRACTICE, post. U-2 Ld. Raym. 913; i Id. 646; Jones Bailm. 46; a Strange, 1099; S. C. i Corw. 100; 17 Mass. 179-514; 7 Cow. 278 ; 3 Dana, 205; 23 Pick. 330; i B. & Aid. 59. V-Willes, 119 ; 3 Petersdorff, 363. W-Wright, 411 ; 3 Kas. 257 ; 3 Petersdorff, 363. x-See 14 S. & R. 275 ; 17 Mass. 479; sMas.C.C. 132; 2 Ad. & E. 256 ; i B. & Aid. 59. y-Bac. Abr. Bailm. D. *-Story Bailm. J 90; Jones Bailm. 80, 81 ; i Bouv. Inst. n. 1008. a- Jones Bailm. 36, 46, 120 ; 17 Mass. 479; Hawks, 145; i Dane Abr. c ; 17 Art. i & 2. b-Story Bailm. $ 99. c- 17 Wend. 94 : i Merriv. 568. The legal remedy is a suit at law for debt ; the balance cannot be reached by a bill in equity, as there is no trust raised. 2 Ho. L. Cas. 30 ; i Younge & C. Ch. 464. d-i Phill. 401, 405 ; 2 Ho. L. Cas. 39, 40; see Sewell, Banking, 4 Blackf. 495. -13 East. 197 ; Jones Baiim. 51 ; 7 El, &. JJ1. 234 ; S. C- 4. Eng. L. & Eq. 105. '32 BAILMENTS. A expository is not liable to an action for not restoring a thing, until after demand, unless he have put it to some use not justified by the bailment.' Whenever a person receiving the goods has an option to return the same thing, or another article of the same kind and value, the property passes to him as effectually as in an ordinary case of sale and exchange, and the risk is with ihe bailee,* or person receiving the goods. ' A mere deposit of money, or other thing, is always subject to recall at the election of the depositor. 11 Money requires more watchful care than most other property. 1 FORWARDING MERCHANTS are persons who receive and forward goods, taking upon themselves the expenses of transportation, for which they receive a compensation from the owners, but who have no concern in the ves- sels, cars, or wagons by which they are trans- ported, and no interest in the freight. A forwarding merchant is not deemed a common carrier, but a mere warehouseman or agent.J He is required to use only ordinary diligence in sending the property by responsible persons. k GRATIS undertakings are those without reward or compensation. When a bailee un- dertakes to perform some act or work gratis he is answerable for his gross negligence if any loss should be sustained in consequence of it ; but a distinction exists between a misfeasance and a nonfeasance between a total omission to do an act which one gratuitously promises to do and a culpable negligence in the execu- tion of it in the latter case he is responsible, while in the former he would not, in general, be bound to perform his contract. 1 HIRE. Hire is a bailment in which com pensation is to be given for the use of a thing or for labor and services about it. m There are three species of this contract : 1. The hire of labor and work to be done, or care and attention to be bestowed, or the goods let by the hirer for a compensation. 2. The hire of the carriage of goods from one place to another for a compensation. 11 3. The bailment of a thing to be used by the hirer for a compensation to be paid by him. This contract arises from the principles of natural law; it is voluntary, and founded in consent ; it involves mutual and reciprocal obligations; and it is for mutual benefit. In some respects it bears a strong resemblance to the contract of sale; the principal difference Between them being that in cases of sale the f-9 Johns. 361 ; zGreenl.aoS: Cox, 298: 3 Hill (S. 0284; 56 Penn St. us; 38 111 289 jf-i Ohio St. 244 : 3 Iowa, 599. h-33 N H. 171 : 2 E D. Smith, 60. l-Wright, 410; i Sneed, 248 : 35 Mo. 487. j-12 Johns. 132 : 7 Cow. 497 k-2 Cow. 593 ; see Story Bailm I- 4 Johns. 84: sT. R. 143; 2 Ld. Raym. 913. m-2 Kent Comm. 456; Story Bailm. 3 .so. n-Jones Bailm. 85,86, op, 103, 118 : Kent Comm. 456 : see COMMON CARRIERS, COMMOK CARRIERS OP PASSBNGERS, PRIVATE CAR- RIERS, above. O-Vinnius lib. 3 tit. 25, in pr. Poth. Lonage, n. n. 2-4 ; Jones Bailm. 86 : Story Bailm. ? 371 ; Parsons, Story, Contr. 2 Kent Comm. 456. |-i Domat. ?s^i: Blc. i. tif. iv. ii art i ; i Const. 121 : Wh. Am. owner parts with the whole proprietary interest in the thing, and in cases of hire the owner parts with it only for a temporary use and pur- pose. In a sale the thing itself is the subject of the contract; in hiring the use of the thing is the object. HIRING THINGS. The engagements of a person who takes anything to hire are to put the thing to no other use than that for which it is hired ; to use it well ; to take care of it ; to restore it at the time appointed; to pay the rent or hire ; and, in general, he ought to ob- serve whatever is prescribed by the covenant, by law, and by custom ;P and he stipulates for requisite skill and diligence to accomplish the purpose of the bailment, prudently and safely.* In hiring horses, the hirer is bound to feed properly at his own expense, and treat the ani- mals judiciously and prudently, unless where the owner retains control of the team by his driver. r A hirer may allow his servants to use the thing, he being responsible for their conduct. 1 But he is not ordinarily responsible for the acts of the servants of the owner.* The right of possession of the thing during bailment is in the bailee." If the thing fails to answer the purpose, the hirer is not bound to pay the price ; T the same rule applies to letting of the use of things for a term of time at a fixed price.* The price is only due to the extent of the service.* LETTING THINGS. The leading incidents of this class of bailments are as follows : 1. The thing bailed must be of a personal quality ; 2. It must be tangible and under the power and control of the bailor, either as his own property, or under his own control, with the assent of the owner; 3. It must of course be a thing capable of being let; 4. There must be a price agreed between the parties, or at least it must be implied that a reasonable compensation is to be paid for the use in some way ; 5. There must be a delivery of the thing to the bailee for a particular time, or for some particular use, and until that is accomplished. A hirer of things is bound to exercise watch- fulness to keep them securely. 1 In case of mere deposit of goods, or where there is only a payment for house room, and nothing for care and custody of the things bailed, the bailee is not responsible for the loss, unless upon proof of some particular default or neglect ;? unless there was a total default in Com. 239 : 13 Johns. 211 : i Cow. 322 : 6 Ga. 213. q- 2 Ld. Raym 909 ; 2 Fol. 62. b.; 3 Petersdorf Ab. 374 : i Esp. N P. C. 314 : i Gow. 30. r-2 Br. & B. 359 : Story Bailm. 388-389 ; 3 Petersdorf Ab. 376, and note . 3 Camp. 4 : 5 Esp. 35 ; Id. 263. 8-1 Mod. 210; S. C. 3 Salk. 2 7 t ; Story Bailm. 400. t-5 B. & C. 547: i Redf. Railw. 503. {i 129 : 24 Barb. 355 ; 3 Gray, 349 : 6 M & W. 499 n-Velv. 172: 10 Vt. 208; 5 Mass. 104; 3 Pick. 492 ; 12 Id. 139 ; 17 Vt". 499 ; 40 111 320 ; 46 N. H. 75; 2 Camp 335 v-3 Barb. 380. w-i Head. 258 : i Met. (Ky.) 288. 3 Ala. 562 . 21 Texas, 478. x-2 C. B. 877; S. C. 10 Jur. 435. y-io Cush- "7; 9 Wend BAILMENTS. delivering up the goods on demand, and no explanation, or an evasive one, or one that is improbable.' WORK AND CUSTODY. All mechanics and artisans, who undertake to do work and re- pairs in the line of their employment, naturally become responsible for competent knowledge, skill, and experience, and also for the exercise of that diligence, care, and faithfulness which is requisite to the successful accomplishment of the work. And where the result of the un- dertaking is not successful, the laborer is not entitled to compensation ; and he is also liable to an action for any injury to the materials furnished and with which he attempted to work.* The general property of the thing bailed re- mains in the bailor, and if during the course of the work it is destroyed by fire or otherwise, without the fault of the bailee, the loss will fall on the bailor, and he will also be liable to the bailee for the work already accomplished ;* but articles made to order are at the risk of the owner. b In cases where the thing delivered for manufacture is not to be returned in specie but in kind, it is a sale, and not a bailment, as where grain is delivered to be paid for in flour, etc. Bailees for hire commonly have a lien for work and materials furnished by them. d But no lien can be created except by the owner's consent.* Where work is not done in time, or accord- ing to contract, the bailor is only responsible /or what it benefits him. r A bailee for work for reward is not entitled to use material superior to those stipulated, with any view to higher compensation, unless there is evidence of the previous or subsequent assent of the bailor ;S nor will the bailee be allowed to charge extra compensation for extra work, unless the deviation was previously or .subsequently sanctioned by the bailor. h Agisters of cattle or livery-stable keepers are jmly bound to use such care and diligence as prudent men do in their own affairs. 1 INNKEEPERS. An inn is a house for ihe lodging and entertainment of travellers ; often a tavern where liquors are furnished for travellers and others.J An innkeeper is the keeper of a common inn for the lodging and entertainment of trav- y-io Cush. 117; 9 Wend. 271. z-i Chit. PI. 96, 140; i Car. & P. 352 ; 2 Id. 378 ; 2 Wils. 325 ; 8 East. 348 ; i Camp. 138; 3 Stark. 6; i Gow. 30. a-2 Kent Comm. 590; i Taunt. 137; 3 Burr. 1592. b-Story Bailm. ? 427. a. C-3 Hill, 28; 3 Mason, 478; 8 Greenl. 101 ; 7 Cow. 752; i Ohio St. 244; 13 Mich. 10. 137. t-Id. g 140. n-i Brown Civ. Law. 382; Halif. Anal. Civ. Law, 70. v-Poth. Pand. i, 17, t. i, p. i, \ i; Poth. de Mandat c. i,i. W-Story Bailm. 160. X-Wood Civ. Law, 242 ; i Domat b. i, t. 15, $} i, 6, 7, 8 ; Poth. de Mnn.lat c. j 3, nn. 34-36. y-2 La. Raym. 909; 5 T. R. 143; 4 Johns. 84; 2 Johns. Cas. 92; 3 Mason C. C. 132 ; 2 Murphy, 373: Wright, 410; i Sneed. 248; 35 Mo. 487. z-i H. Bi. 158: 4 Mo. & M. 170 ; 2 Ad. & El. 256 ; 18 Maine, 174 ; 2 Murphy, 373 ; 8 Met. 91 ; 5 Ind. 131 ; Id. 462 ; 18 Ga. 495 ; 17 111. 170; 3 Met. (Ky.) 378 ; 21 Texas, 148. -2 Ld. Raym. 919 ; i Taunt. 523 ; 5 B. & Aid. 117 ; i Sneed, 248: 6 Binn. jo8; 5 Fla, 38. b-2 Kent Comm. (4th Ed.) 571-573: i H, BJ. 158, 4 B. & C. 345; * Ad. & E. 256: 16 How. meddling with goods, make himself responsible for all losses. 6 A mandatary may use the thing in a reason- able manner, by himself or his servants; but if he possesses skill, he is bound to use it the same as a hirer, who undertakes to use skill. f A mandatary, who does not stipulate for compensation, must be understood to act with- out, unless the circumstances indicate the con- trary.* A promise of a bailee to return goods does not increase his responsibility. 11 The question of gross negligence is one for the jury;J and the plaintiff must show it. k The dissolution of the contract may be by renunciation by the mandatary before com- mencing the execution of the undertaking; 1 by revocation of authority by the mandator ; m by death of the mandator; 11 by death of the man- datary ; by insanity or bankruptcy of either party ;P and by change of state of the parties ;i and, in some cases, by operation of law. 1 " PAWN OR PLEDGE is a bailment of personal property as security for some debt or engagement. It is when the debtor delivers any personal property to the creditor, to be kept by him until the debt is paid ; and upon failure of the debtor to meet his obligation, according to its terms, to dispose of the pledge in payment of the debt as far as it will go, and if anything remains after full payment, to return it to the pledger. There is a clear distinction between mort- gages and pledges. In a pledge the legal title remains in the pledger. In a mortgage it passes to the mortgagee. In a mortgage the mortgagee need not have possession. In a pledge the pledgee must have possession, though it be only constructive. In a mortgage at common law, the property, on non-payment of the debt, passes wholly to the mortgagee; in a pledge the property is sold, and only so much of the proceeds as will pay his debt passes to the pledgee. A mortgage is a conditional con- veyance of property, which becomes absolute, unless redeemed at a specified time. A pledge is not strictly a conveyance at all, nor need any day of redemption be appointed for it. A mortgagee can sell and deliver the thing mort- gaged, subject only to the right of redemption. 475 : 3 Mason C. C. 132; 14 S. & R. 275; 17 Mass. 459 ; 2 Hawks. 146; 8 Met. (Mass.) 91. C-Story Bailm. jjjj 177, 182; Jones Bailm. 14, 16; 20 Mart. 68; whether a bank is liable for neglect of its agent in collecting notes, see 22 Wend. 215; 3 Hill, 560; 8 N. Y. 459; 3 Hill (S. C.) 77; 4 Rawle, 384; 2 Gall. C. C. 565; 10 Cush. 583; 12 Conn. 303 : 6 Harr. & J. 146; 4 Whart. 105; i Pet. 25. d-Story Bailm. ipi, et seq. e-i Stark. ""is. 104 ; 8 5 Bosw. . & P. 383; n M. &W. 113; 13 Wis. 104; 8 5. Jf-i2 La. An. no; 16 Id. 155: 5 Bosw. 85. h-33 Barb. 241 : Jones Bailm. 601. J-2 Ad. & E. 256; 3 Bingh. (N. C.) 468: n Wend. 25. k-3 East. 192; 4 Esp. 165; 2 Ad. & E. 80; 10 Watts, 335: see 3 Johns. 170; 2 Wheat, ico; 7 B. Mon. 661 ; 8 Humph. fTenn.) 430. 1-2 M. & W. 145; i M. & R. 38; 2 Ld. Raym. 909; 22 Eng. L. & Eq. 501; 8 B. Mon. 415; 3 Fla. 38. m-6 Pick. 198; 5 Binn. 316; 5 T. R. 213; see 4 Taunt. 541 ; 16 East. 382. 11-6 East. 356 ; 5 Esp. 118; 2 Ves. & B. Ch. Ir. 51; 2 Mass. C. C. 244; 8 Wheat. 174. 0-2 Kent Comm. 504 ; 8 Taunt. 40-^. p- Story Bailm. (j 262-264 : 2 Mason C. C. 242; 8 Wheat. 174. |-Story Ag. J 481. F-Id. j 500. BAILMENTS. 137 A pledgee cannot sell and deliver his pawn until the debt is due and payment denied. Pledge and mortgage are, therefore, different in law. 8 Any tangible property may be pledged. Hence, not only goods and chattels, and money, but also negotiable paper may be put in pledge. So may choses in action, patent rights, coupon bonds, and manuscripts of various sorts.' A life policy of insurance, or a wife's life policy may be pledged. So, also, a bank can pledge the notes left with it for discount, if it is appar- ent on the face of the notes that the bank is their owner. But the common law does not permit the pay and emoluments of officers and soldiers to be pledged from public policy." Hence, probably, a fishing bounty could not be pledged, on the ground that pensions and bounties to soldiers, sailors, etc., for their per- sonal benefit, cannot be pledged. One may pledge future accessions to existing property ; v as bricks to be made upon a brick- yard, in security for the use of the same ; w and the product of a fann to be held as security for rent. 1 A pledge in security of a debt does not sus- pend the right of action upon the debt, unless it be so stipulated .7 The pledge of negotiable securities shuts out all equitable defences. 1 Coupon bonds pledged are not to be collected by the pledgee, but sold in the market ; a but he may collect the interest coupons as they fall due. b A bond and mortgage secured on real estate may be pledged.' Where an illegal debt is secured by pledge, the pledger cannot recall the pledge without payment of the debt. d Factors have no power to pledge the goods of their principals,* unless that power is ex- pressly given by statute.' The pledgee may assign the goods and debt so as to transfer his interest.* A CO-PLEDGEE may hold a pledge for another pledgee also, and it will be a good pledge for both. If the pledge be not large enough for both debts after sale, and no other arrangement be made, the prior pledgee will have the whole of his debt paid before any part of the proceeds is applied to the subse- quent pledgee. If there is no priority of time they will divide ratably. But an agreement between the parties will always determine the 8 Ves i-3 Brown Ch. 21; Yelv. 178; Prac. in Ch. 419: i res. Ch. 358; 2 Id. 372: i Bulstr. 29: Com. Dig. Mortgage; 5 Johns. 260: 8 Id. 97; 2 Pick. 607; 5 Id. 60 : 3 Penn. St. 208 ; 6 Mass. 425 ; 22 Me. 248 ; 6 Pet. 449; 2 Barb. 538: 4 Wash. C. C. 418; 2 Ala. CN. S.) 555 ; 9 Me. 82 : 5 N. H. 545 ; 4 Denio, 489 ; 5 Blackf. 320; 3 Mo. 516; 4 Barb. 491; 3 Texas, 119; i Edm. Sel. Cas. 201 ; i Parsons Contr. 591, et seq. t-i Ves. Ch. 278 ; 2 Taunt. 268 ; 15 Mass. 389, 534 ; 2 Blackf. 198 ; 7 Me. 28 ; 4 Denio, 227 : 2 N. Y. 443 ; i Stockt. 667: Story Bailm. 200. u-H. Bl. 627 ; 4 T. R. 248. V.i Pick. 398 ; 4 Mason, 515 ; i Pet. (U. S.) 448. W-I4 Pick. 497. X-i8 Vt. 461. y-ip Pick. 117; 34 Vt. 89; 23 Me. 202 ; ii Met. 226 ; 10 Ala. 535 ; 7 S. & M. 179 ; i La. An. 344; Id. 379; 14 N. H. 567; i Grant. Cas. 397 ; jo B. Mon. 239 ; 6 Cal. 643 ; 4 Ind. 425 ; 10 Bosw. o8 ; ii Iowa, 410; 7 Mich. 355; 12 Ind. 427; 14 Ohio St. i ; 13 Minn. 232. z-13 Gray, 7. R-i Beasley, 323. l-48 Mjiine, 335. -48 Maine, 335; 9 Bosw. 322; Id. rights of two or more pledgees.* When pos- session is given to one of three pledgees, to hold for all three, the other two have a con- structive possession, which is equally good, for the purpose of sharing, when in actual posses- sion ; hence the mere manual possession of one pledge will not give a right to discharge a whole debt of the holder, and a part only of his co-pledgee's. So, by the rule of constructive possession, if the holder should lose the pledge by his own negligence, he would be liable to his co-bailees out of actual possession, as well as to his bailor. DELIVERY OF PLEDGE. The first essential thing to be done is the delivery of the pledge to the pledgee. Without his possession of the thing the transaction is not a pledge. 1 But a constructive possession is all that is required of the pledge. Hence, goods at sea or in a warehouse may pass by transfer of the muni- ments of title or by symbolic delivery. Stocks and equitable interests may be pledged; and it will be sufficient if, by proper transfer, the property be put within the power and control of the pledgee/) Stocks are usually pledged by delivery of the company's certificate, leav- ing the actual transfer to be made subsequently. But the joint stock company must be notified of the transfer. Prima facie, if the pledgee redeliver the pledge to the pledger, third parties without notice might regard the debt as paid ; still this presumption may be rebutted. A temporary redelivery to the pledger makes him only the agent or bailee of the pledgee, and the latter does not lose his special property or even his constructive possession. k It is no objection to the validity of a pledge that the creditor has sufficient security for the payment of the debt; he is entitled to hold all his securities until the debt is paid. 1 FACTORS cannot at common law pledge his principal's goods, and the principal may recover them from the pledgee's hands." This power is, by statute, subject to various modifications, .given to factors in many States. See GENERAL STATUTES. HOLDING THE PLEDGE FOR OTHER DEBTS. A pledge cannot, in general, be held for any other debt than that which it was given to se- cure, except on the special agreement and con- sent of the parties. 532. d-6 Allen, 139. e-5 T. R. 604; Story Bailm. 325 : 3 B. & A. 616 ; 3 B. & C. 342 ; 15 Mass. 389 ; i M. & S. 140, 484; 6 Id. i; 5 Johns. Ch. 429; 2 Kent. Comm. 625 ; 5 Cush. in ; this question is very fully dis- cussed in Parsons Marit. L. 363. 1-7 B. & C. 517 : 6 M. & W. 572 ; 2 M. & R. 22 ; 3 Denio, 472 ; 4 Id. 323 ; 2 Sandf. 68. {-20 Pick. 399; Story Bailm. g 324;~6 Met. h-i2 Mass. 321. 1-37 Me. 543. J-I2 Mass. 300 ; 20 Pick. 405 : 22 N. H. 196; 2 N. Y. 403 ; 7 Hill. 497. fc-5 Bing. (N. C.) 136; ii Eng. L. & Eq.'s8 4 ; 3 Whan. 531; 5 Humph. 308; 32 Me. 211; i Sanf. 248. 1-2 Wheat. 390; 15 Wend. 218. m-2 Str. 1178 : 6 M. & S. i ; 3 Bingh. 139. 163 ; 2 B & B. 639 : 4 B. & C. 5 ; i M'Cord, i ; 6 Met. (Mass.) 68 ; 20 Johns. 421 ; 4 H. & M. 432 ; 18 Mo. 147, 191 ; n How. 209, 226. 11-7 B. & C. 517 : 6 M. & W. 572 ; 2 M. & R 22 ; 3 Denio, 472 ; 4 Id. 323; 2 Sanf. 68. 0-7 East. 224: 6 T. R. 258; -.. Ves. Ch. 372; 6 Id. 226; 7 Port. (Ala.) 466; 15 Mass 389; a Leigh. 493; 14 Barb. 536; see 2 Bell Comm. 22 BAILMENTS. Loss OF PLEDGE. A pledgee is not respon- sible for theft or robbery, unless he refuses to return the goods after the bailment expires. Loss by theft is prima facie evidence of a want of ordinary care, and the bailee must rebut the presumption ; the facts in each case regulate the liability. Theft is only evidence, in short, and not absolute presumption of negligence. Perhaps the only safe rule is, that where the pledgee pleads loss by theft as a ground for not performing his duty, to excuse himself, he must show that the theft could not have been pre- vented by ordinary care on his part. If the bailor should assert in his complaint that the pledge was lost by the bailee's fault, he would be compelled to prove the charge as laid. PROPERTY IN THE PLEDGE. A pledgee has at common law a special property in the pledge, and is entitled to the exclusive possession of it during the time and for the objects for which it is pledged. If a wrong-doer take the pledge from him, he is not thereby ousted from his right. His special property is enough for him to support replevin or trover against the wrong- doer. He has, moreover, a right to action be- cause he is responsible to his pledgor for proper custody of the bailment. The pledgor, also, may have his action against the wrong-doer, resting it on the ground of his general property. A judgment for either pledgor or pledgee is a bar against a similar action by the other.? The bailee, having a special property, recov- ers only the value of his special property as against the owner, but the value of the whole property as against a stranger, and the balance beyond the special property he holds for the owner.i So, if the owner begins the action and recovers the whole damages, including those for deprivation of possession, it must be with the consent of the pledgee. A pledgee may bring replevin or trover against the pledgor if the latter remove his pledge be- fore paying the debt, and thus injure the pledgee's rights, on the ground that the owner has parted with his absolute right of disposing of the chattel until he has redeemed it from its slate of pledge. r REDEMPTION. Where no definite day is ap- pointed the pledge may be redeemed at any time, in the absence of a statute to the contrary ; hence, if the pledgee himself do not give notice to the pledgor to redeem, the latter has his whole lifetime in which to do so ; and his right of re- demption survives and goes to his representa- tives/ SALE OF PLEDGE. If the pledgor fail to pay the debt, the pledgee may sell the pledge. A demand of payment, however, must be made before the sale ; and if the pledgee mentions no e-B. N. P. 720; 4 Co. 83; Yelv. 178; 2Exch.479; 5 Vt. 532 ; 5 Johns. 261 ; 2 Pick. 267 : 8 Johns. 96 ; 4 Cow. 481 ; 2 Ves. Jr. 372, 378 ; Story Eq. Jur. $> 1030, 1033. p- BI. Comm. 395; 6Bligh. N. 8.27; i B. & Aid. 59; 5 Binn. 457; 1 6 Wend. 335; 9 Gill. 7; 13 Me. 436; 13 Vt. 504. q-is Conn. 302. r-2 Taunt. 268 ; i Sandf. 208; 22 N. H. 196; n N. Y. 150: 2 M'Cord, 126. Yet in trover the damages recovered cannot be greater than the amount of the debt, if the defendant (jerjyes Q titje nncjer the pledgor. 4 garb. 491 ; ij III. time of sale, he may demand at once, and may sell in a reasonable time after demand.* The pledge must be sold at public auction, and, if it be divisible, only enough must be sold to pay the debt. In general, also, the pledgee must not buy the pledge when put up at auction. He must not bid bona fide and bring up the pawn. Still, the purchase of the pledgee is not in itself void, but voidable at the election of the pledgor, and the latter may ratify the purchase by receiv- ing the surplus over the debt, or avoid it by re- fusing to do so ; the pledgee may charge the pledge with expenses rightfully incurred, as costs of sale, etc. If the pledge when sold bona fide does not bring enough to pay the debt, the pledgee has still left a good claim against the pledgor for the balance. 11 TRANSFER OF PLEDGOR'S INTEREST. The pledgor may sell or transfer his right to a third party, who can bring trover against the pledgee if the latter, after tender of the amount of his debt, refuse to deliver the pawn. T A creditor of the pledgor can take only his interest, and must pay the debt before getting the pawn. The pledger's general property in the pawn may be sold at any time on execution, and the pur- chaser or assignee of the pledgor succeeds to the pledgee's, and may himself redeem. A pledgee may dispose of the pledge in payment of the debt at maturity. 1 " A pledgee may assign a debt and pledge together. 1 USE OF PLEDGE. The reasonable use of a pledge is allowed, provided it be of no injury or peril to the bailment. The reason is, that where use of the pledge is beneficial to it, or cannot depreciate it, the consent of the pledgor may fairly be presumed, but not otherwise. If the pawn be in its nature a charge upon the pawnee as a horse or cow he may use it moderately, by way of recompense. For any unusual care he may get compensation from the owner, if it were not contemplated by the par- ties or implied in the nature of the bailment.* The pawnee is answerable in damages for an injury happening while he is using the pawn. Still, though he use it tortuously, he is only an- swerable by action. His pledgee's lien is not thereby forfeited.* A pledgee can exercise a horse, but not loan it for hire ; the rule is that if he derive any profits from the pledge they must be applied to the debt.* Hence, if a slave be pledged as security for a debt, the creditor must account for the profits of the slave and apply them to extinguish the debt. b RECEIPTOR. A receiptor is a person who, when goods are attached, becomes sureh to the officer to have them forthcoming on de- mand, or in time to respond to the judgment, when the execution (or order of sale) shall lie 465. 8-3 Mo. 316 i Call. 290. t-GIanville lib. x. c. 6 ; 5 Bligh. (N. S.) 136 : 9 Mod. 275 : 2 Johns. Ch. 100; i Sandf. 351 ; 8 111. 423; 4 Denio, 227; 3 Texas, 119; i Browne, 176; 22 Pick. 40 ; 2 N. Y. 443. n-See below, Transfer of Pledger's interest. V-9 Cow. 52 ; 13 M. & W. 480. w-2 Ld. Raym. 909 : tone? Bftilm. 74 et teg. X-2 Vt. 309 ; 14 Pick. 197 ; 13 Id. 216; 9 Wend. 345. y-Ld. Raym. 909: 2 Salk. 522; Parsons' Contr. 593. Z-4 Watts, 414. a-2 Murphy, ii|. fc-Wythe, 55 ; if Ala. (N. S.) 551. BAILMENTS. ior .vi i.iriico jt-ruiter iff, ) } In the Court. ant. j issued, upon which, the goods are bailed to him. The practice of delivering property attached to a bailee, for safe-keeping, must have been coeval with the practice of making attachments. It is, in its nature, a simple deposit, a delivery of the property, to be kept by the depositary, without compensation, until called for by the attaching officer ; d a practice which is not only lawful, but, in a high degree, useful and conve- 'nient." It is not necessary, but is better, to take from the bailee a writing acknowledging the receipt and promising to re-deliver the property to the officer on demand/ Receipt for Attached Property. A. B., plaintiff, vs. C. D., defend a r Place , Date . Received of C. C., con- stable, of , in said county, the following prop- erty, by him attached in the above entitled action, to wit : (here particularly describe the property, so it can be identified),* promising to redeliver such property to said officer on demand. 3. E. Usually, a friend of the defendant, though the plaintiff, may become bailee. h The bailee has no power to sell the goods, 1 but must return the identical articles delivered to him, or pay the debt J upon demand ; k and he. is liable to the officer for the property, 1 or its full value, or the extent of the officer's liability, 11 or for damages. He is the servant or agent of the officer.? If the bailee abandon possession and cus- tody of the property, and it is attached by an- other officer,' or come into possession of an adverse claimant, 1 the lien of the first attach- ment is lost. An officer, by the levy of an attachment, ac- quires a special property in the goods seized, which is not lost by the bailment, 8 and he be- comes liable for them, at the termination of the suit, either to the plaintiff 1 or defendant ; u but not to the plaintiff where the bailee, nominated and approved by such plaintiff, is in default.* Property may be returned to the person in whose possession it was found or to the defend- ant upon the execution of an undertaking for its return to the officer is required by law. This undertaking, like the bailment of attached property, does not discharge the lien of the at- tachment." Property thus bonded cannot be seized under another attachment, or under a junior execution.* TELEGRAPH COMPANIES. The electro-magnetic telegraph is an instrument or apparatus which, by means of iron wires con- ducting the electric fluid, conveys intelligence C-Story Bailm. g 124. d-8 Foster, 266. e-s N. H. 433. f-i Vt. o ; 31 Maine, 152 ; 40 Miss. 472 ; 23 Ark. 61. if-12 N. H. 341. h-2o Conn. 364. i-8 Vt. 15. j- i R.I. 454. fc-8 Foster, 266 ; i6Mass.453; 14 Vt. 491 l-i R. 1.454; " Vt. 230; 13 Id. 235; ii N. H. 256; 13 Conn. 507. m-a N. H. 142 ; 10 Id. 9 ; 19 Maine, 49 ; i D. Chip. 396. n-is Maine, 79; 31 Id. 287; 41 N. H. 283; 3 Id. 299; ii Id. 256; 13 Id. 507; 13 Vt. 235. 0-14 Maine, 429; 28^.505; 151^.79. p-o Mass. 104; Id. 265; 13 Id. 394; 14^.217; i Pick. 232 ; 19 Maine, 255 ; 23 Id. 248 ; 6 Johns. 195 ; 9 Id. 361 ; 7 Cowen, 274 ; 8 Wend. 667 ; 34 Vt. 188. q-i6 Pick. 144. r-8 Pick. 419. s-i D. Chip. 51 ; Id. 280; 4 Vt. 605 ; 5 Id. 263 ; 8 Id. 15 ; 15 Id. 310 ; 31 Id. 433 ; 2 to any given distance with the velocity of lightning.' A telegraph is a message sent by telegraph, 1 a telegraphic message, dispatch, or communica- tion. The telegraph is a machine for communi- cating intelligence from a distance by various signals or movements previously agreed on; which signals represent letters, words, or ideas, which can be translated from one station to an- other, as far as the signals can be seen. This machine was invented by the French about the year 1793-94. The electro-magnetic telegraph is an apparatus for communicating words or language to a distance by the use of electricity as above stated. Telegraphic communications must be proved in the same manner as other writings, such as letters and contracts, are that is, by the origi- nal. If that is lost, it may be proved by copy, or, in default of that being obtainable, by oral testimony.* Sometimes the person to whom it is addressed is in the office when it is received ; in such case, if it is not reduced to writing, it can only be proved, like other matters resting in parol, by the recollection of the witnesses in whose hearing it was repeated. b Where both parties agree to communicate by telegraph, each assumes the risk of his own messages. If one employ a special operator, he assumes the risk of transmission ; d it is his own act by his agent. d Notice that the com- pany will not be responsible for mistakes in unrepeated messages is binding. 6 But they are always responsible for ordinary neglect. 8 Com- panies can only.be regarded as insurers of the accuracy of repeated messages, 6 and responsible where specially ca*utioned ; r but, generally, are not responsible for errors in unrepeated mes- sages, except on proof of negligence or want of skill.s They are not responsible as common carriers, and may limit responsibility to their own lines and to repeated messages, if not guilty of negligence. h It is the duty of the company to transmit the messages promptly and fairly. The company must make good the loss resulting directly from any default on their part.* So, also, in cases of failure to send mes- sages by telegraph companies, according to their duty and undertaking^ Where a merchant in San Francisco receive* a telegraphic message from New York, which leads him into a purchase involving inevitable pecuniary loss, such as would not have occurred but for an error in the transmission of the mes- sage, he is not compelled to seek through an N. H. 66; 10 Id. 9; 13 Mass. 394; 20 Conn. 364: 21 Pick. 318; i Vt. 9. t-Cases above cited, u-2 N. H. 142. v-ig Pick. 520; 20 Maine, 183 ; 21 Id. 558; 24 Id. 250. w-20 Miss. 622 ; 12 Ala. 138; 6 Ala. (N. S.) 45 : 7 Mo. 411 ; 7 111.468; 10 Pet. 400; 10 Humph. (Tenn.) 434. x-6 Ala. (N. S.)45: 7 B. Mon. 651; 41^1.304. y-S. F. B. Morse, z- Webster Diet. a-2q Vt. 127; ai III. 591 ; 37 N. Y. 457; 37 Mass. 682. 0-29 Vt. 127. C-4i Barb. 255 ; i Kernan, 441 ; 9 How. 390. d-35 Barb 463. -33 Eng. L. & Eq. 180 ; S. C. 17 C. B. 3. f-55 Penn. St. 262. f?-i3 Allen, 226; i Met. (Ky.) 164; 5 Am. Law Reg. (N. S.) 407; S. C. i Daly C. P. 547: 4S Barb. 274. h-is Mich. 525; 37 Mo. 472. i-i6 IT Y. 489. J-32 Barb. 530. BAILMENTS. extensive chain of telegraphic communication to ascertain where the error was made, but the company to which the message was originally delivered, and to which the whole compensation for its price was paid, is liable. Having pecu- liar facilities, the obligation is then upon this company to ascertain where and how the error occurred, and to fix the ultimate responsibility where it belongs." The party entitled to re- cover penalty is the contracting party. 1 It is the duty of the company to serve all without discrimination or preference. Statutory pro- hibition against disclosing the secrets of the office, or communicating messages, does not extend to a disclosure as a witness in a court of justice." Placing poles in the highway, without legisla- tive authority, creates a nuisance, but telegraph poles once legally established in the highway cannot afterward be removed or treated as a public nuisance.? Their right to " pass directly across a railway " does not justify their boring under it.i Erecting posts in a highway without legislative authority is a nuisance, even if suffi- cient space remain for the passage of travel. r TELEGRAPH FORMS. Telegraph Message General Form. As delivered by sender to the Company's Agent. THE TELEGRAPH COMPANY. All messages taken by this Company subject to the following terms : To guard against mistakes or delays, the sender of a message should order it repeated ; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated message, whether hap- pening by negligence of its servants or otherwise, beyond the amount received for sending the same ; nor for mis- takes or delays in the transmission or delivery, or for non-delivery of any repeated message beyond fifty times the sum received for sending the same, unless specially insured ; nor in any case for delays arising from unavoid- able interruption in the working of their lines, or for errors in cipher or obscure messages. And this Com- pany is hereby made the agents of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of messages to any point on the lines of this Company can be insured by contract in writing, stating agreed amount of risk, and payment of premium thereon at the following rates, in addition to the usual charge for repeated messages, viz. : one per cent, for any distance not exceeding 1,000 miles, and two per cent, for any greater distance. No em- ployee of the Company is authorized to vary the fore- going. Th Company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message. S. Y., Secretary. P. P., President. Place , Date . Send the following message subject to the above terms which are agreed to. To R. R., at , in . (Here -write message.) (Signed) S. R. Telegraph Message General Form. As delivered by sender to Company's Agent. THE TELEGRAPH COMPANY. All messages taken by this Company subject to the following terms : ( Terms same as above form.} P. P., President. S. Y., Secretary. k-i Daly (C. P.) 547. 1-15 Cal. 472. m-6 El. & Bl. 341. n-a Parsons, 274. 0-9 Cox C. C. 174 ; S. C. 6 L. T. (N. S.) 378 ; 30 Beav. 287; S. C. 8 Jur. (N. S.) 583- No. Sent by Time. Rec'd by Cheek. 79- A. B. II. 10. C. D. 6 wds. pd. (or col.) 75 c. Place , Date Send the following message subject to the above terms which are agreed to. To R. R., at , in . (Here write the message.) (Signed) S. R. Telegraph Message General Form. As delivered by the Company to the person it whom sent. THE TELEGRAPH COMPANY. The rules of this Company require that all mes- sages received for transmission shall be written on the message blanks of this Company, under and subject to the conditions printed thereon, which conditions have been agreed to by the sender of the following message. P. P., President. S. Y., Secretary. No. Sent by Time. Rec'd by Check. Dated, . I Rec'd at . Day , To R. R., at . I Year , Hour . ( Here follows the message sent. ) (Signed) S. R. Telegraph Message General Form. As delivered by the Company to the person to whom sent. THE TELEGRAPH COMPANY Notice. This Company transmits and delivers messages only on conditions, limiting Its liability, which have been as- sented to by the sender of the following message. Errors can be guarded against only by repeating a message back to the sending station for comparison, and the Company will not hold itself liable for errors or de- lays in transmission or delivery of unrepeated messages. This message is an unrepeated message and is deliv- ered by request of the sender under the conditions named above. S. Y. , Secretary. P. P. , President. Dated at , day , year , hour . Received at , day , year , hour . To , at . (Here follows the message.) (Signed) S. R. Read the notice at the top. Telegraph Message By Cable. As delivered by sender to the Company's Agent. THE TELEGRAPH COMPANIES. Terms and Conditions. All messages destined for points beyond the United States, via the Direct United States Cable Company, which are received by these Companies for transmission, will be so received and sent forward over their lines to the terminus thereof, and there delivered to the Direct United States Cable Company, on the following terms and conditions only : To guard against mistakes on the lines of these Com- panies, the sender of any such message should order it repeated ; that is, telegraphed back from the terminus of said lines to the originating office. For such repeat- ing, the sender will be charged in additii n one-half the usual tolls of these Companies on that portion of their lines over which such message passes. These Companies will not assume any responsibility in respect to any message beyond the terminus of their own lines ; and it is agreed between the sender of the following message and these Companies, that said Com- panies shall not be liable for mistakes or delays in trans- mission or delivery, or for non-delivery to the Cable Company of any unrepeated message, beyond the amount of that portion of the charge which may or shall accrue to these Companies out of the amount received from the sender for this and the other Companies by whose lines such message may pass to reach its destination : and that these Companies shall not be liable for mistakes in the transmission or delivery, or for non-delivery to the Cable Company, of any repeated message beyond fifty times the extra sum received by these Companies from the n-97 Mass. 555. q-o Exch. 363 ; S. C. 24 Eng. L. & Eq. 513 ; Redf. R'ys, 2 13. '43, 164- *~9 Cox C. C 174 ; 3 F. & F. 73 ; 8 Jur. (N. S.) 1153- BAILMENTS. lender for repeating such message over their own lines ; and that these Companies shall not be liable in any case for delays arising from interruption in the working of their lines, nor for errors in cipher or obscure messages. And these Companies are hereby made the agent of the fender, without liability, to forward any message over the lines to any other company to reach its destination. These Companies will not be liable for damages in any case where the claim is not presented in writing within sixty days after the sending of the message. P. P., President. S. Y., Secretary. No. 93- i Sent by A. B. Time. 3 P. M. Rec'd by X. Y. Check. 3 wds. pd. (or col.) $3. oo. Place , Date . * Send the following message subject to the above terms which are agreed to. To R. R., at , in . (Here follows message?) (Signed) S. R. Telegraph Message By Cable. As delivered by sender to the Company. THE TELEGRAPH COMPANY. All messages destined for points beyond the United States, via the Atlantic cables and the cables to Cuba, which are received by this Com- pany for transmission, will be so received and sent forward over its lines to the terminus thereof, and there delivered to the next connecting tele- graph company, only on the terms and conditions printed on the back hereof. P. P., President. S. Y., Secretary. Place , Date . Send the following message subject to terms and conditions, printed on the back hereof, which are agreed to : Terms and Conditions. (Same as in preceding form.) To S. R., at , in . (Here write out the message.) (Signed) S. R. Telegraph Message By Cable. A s delivered by the Company to the person to whom sent. THE TELEGRAPH COMPANY. All cable messages received for transmission must be written on the message blanks provided by this Company for that purpose, under and subject to the conditions printed thereon, and on the back hereof, which conditions have been agreed to by the sender of the following message. S. Y., Secretary. P. P., President. Conditions. To guard against mistakes on the lines of this Com- pany, the sender of every message should order it re- peated ; that is, telegraphed back from the terminus of said lines to the originating office. For such repeating, the sender will be charged in addition, one-half the usual tolls of this Company, on that portion of its lines over which such message passes. This Company will not assume asy responsibility in respect to any message beyond the terminus of its own lines ; and it is agreed between the sender of the follow- ing message and this Company, that said Company shall not be liable for mistakes or delays in transmission r delivery, or for non-delivery to the next connecting Telegraph Company, of any unrepeated message, be- yond the amount of that portion of the charge which may or shall accrue to this Company out of the amount received from the sender for this, and the other com- panies, by whose lines such message may pass to r< ach its destination ; and that this Company shall not be liable for mistakes in the transmission or delivery, or for non-delivery to the next connecting Telegraph Com- pany, of any repeated message, beyond fifty times the extra sum received by this Company from the sender for repeating such message over its own lines : and that this Company shall not be liable in any case for delays arising from interruptions in the workings of its lines, nor for errors in cipher or obscure messages. And this Company is hereby made the agent of the sender, with- out liability, to forward any message over the lines of any other company to reach its destination. This Company is not to be liable for damages in any case, where the claim is not presented in writing, within thirty days after the sending of the message. No. Sent by. Time. Rec'd by. Check. / Received at . ToR. R.,at . Day , Year , Hour . (Here follows the message as sent.) (Signed) S. R. Telegraph Message Cable. As deltaeredby the Company to the person ta -whom sent. THE AND TELEGRAPH COMPANIES. The rules of these Companies require that all messages received for transmission shall be writ- ten on the message blanks of these Companies, under and subject to the conditions printed thereon, which conditions have been agreed to by the sender of the following message. P. P., President. S. Y., Secretary. No. Sent by. Time. Rec'd by. Check. D ate d . I Received at . Day To R. R. , at , in . | , Year , Hour . (Here follows the message as sent.) (Signed) S. R. Telegraph Message Half-Rate. As delivered to Company's Agent by sender. The Telegraph Company will receive mes- sages for the principal stations in the United States east of the Mississippi river, to be sent dur- ing the night, at one-half the usual rates, on con- dition that the Company shall not be liable fo errors or delay in the transmission or delivery, or for non-delivery of such messages, from whatever cause occurring, and shall only be bound in such case to return the amount paid by the sender. No claim for refunding will be allowed, unless presented in writing within twenty days. P. P., President. S. V., Secretary. Send the following message subject to the above terms which are agreed to. Place , Date . To R. R., at , in . (Here write the message.) (Signed) S. R. Telegraph Message Half-Rate. As delivered by sender to Company's Agent. THE TELEGRAPH COMPANY. Terms and Conditions. The business of telegraphing is liable to errors and delays, arising from causes which cannot at all times be guarded against, including sometimes negligence of ser- vants and agents whom it is necessary to employ. Most errors and delays may be prevented by repetition, for which, during the day, half price extra is charged in ad- dition to the full tariff rates. The Telegraph Company will receive messages for transmission between stations in the United States east of the Mississippi river, to be sent without repe- tition during the night, at one-half the usual rates, on condition that the sender will agree that he will not claim damages from it for errors or delays, or for non- delivery of such messages, happening from any cause other than the acts of its corporate officers, beyond a sum equal to ten times the amount paid for transmission ; and that no claim for damages shall be valid unless pre- sented in writing within twenty days from sending the message. The Company will be responsible to the limit of its lines only, for messages destined beyond, but will act a* the sender's agent to deliver the message to connecting companies or carriers, if desired, without charge and without liability. S. Y., Secretary. P. P., President. Place , Date . Send the following half-rate message subject tt the above terms, which are agreed to. To R. R., at , in . (Here write message.) (Signed) S. R. Telegraph Message Half-Rate. As delivered by the Company to the person to whom sent. The Telegraph Company require that al messages received for transmission shall be writ- ten on the blanks of the Company, under and subject to the conditions printed thereon, which 142 BAILMENTS. conditions have been agreed to by the sender of the following half-rate message. P. P., President. S. Y., Secretary. No. 3 Sent by C. D. Time. II. TO a.m. Rec'd by E. F. Check. 6 (wds.) paid (0rcoH'ct)75c. Dated . I Received at To R. R. | (Here follows the message received.) (Signed) S. R. Telegraph Message Half-Rate. At delivered by the Company to the person to whom sent. The Telegraph Company require that all .nessages received for transmission shall be writ- ten on the blanks of the Company, under and subject to the conditions printed thereon, which conditions have been agreed to by the sender of the following half-rate message. S. Y., Secretary. P. P., President. Dated, Day , Year , Hour . Received at . To . ( Here follow s the message as sent.) (Signed) S. R. VALUATION is the act of ascertaining the worth of a thing. The estimated worth or value of a thing. It differs from price, which does not always afford a true criterion of value, for a thing may be purchased at a sacrifice, or at an extravagant price. In the case of bail- ments the thing bailed is sometimes valued at the time of making the contract, so that if lost, no dispute may arise as to the amount of the loss. 8 WAREHOUSEMEN are persons who receive goods and merchandise to be stored in their warehouses for hire. They are bound to use ordinary care in preserving such goods and merchandise, and their neglect to do so will render them liable to the owner.* The warehouseman's liability commences as soon as the goods arrive and the crane of the ware- house is applied to raise them into the ware- house." See WHARFINGERS, below. WHARFINGERS are persons who own and keep a wharf for the purpose of receiving and shipping merchandise to and from it for hire. A wharfinger stands in the situation of a bailee for hire, and, therefore, like a ware- houseman, he is responsible for ordinary neglect, and is required to take ordinary care of the goods intrusted to him as such. v He is not, like an innkeeper or carrier, to be considered as an insurer, unless he superadd the character of a carrier to that of wharfinger." The re- sponsibility of a wharfinger begins when he acquires, and ends when he ceases, to have the custody of the goods in that capacity. WHARFAGE is the money paid for landing goods upon or loading them from a wharf. 1 Ala. 284. u-4 Esp. 262. v-2 Barb. 328; 4 Ind. 368 10 Vt. 56 ; Peake, 119 ; 4 T. R. 581 ; 2 Stark. 400. w-i Stark, 72 ; 4 Campb. 225 ; 5 Burr, 28, 25 ; 12 Johns. 232 j Cow. 497 ; 5 Mo. 97. ac-Dane Abr. Index ; 4 Cal. 41 45. y-n Ala. (N. S.) s86; see 5 Hill (N. Y.) ; 7 Id 429; 2i Wend, no; i E. D. Smith, 80, 294; 2 Rich 3fo ; 8 B. & C. 42 ; 2 Mann. & R. 107. z-2 Stark, 40 lo Vt. 56; 7 Cow. 497; 3 Taunt. 264; n Gush. 70; 21 Vt 316; 13 Barb. 481. a-3 Campb. 414; 4 Id. 72; (, Owing to the interest which the public have itt he matter, rates of wharfage may be regulated >y statute.? Warehousemen, wharfingers, and forwarding merchants are bound to have proper accommo- dations for the amount and kind of business hey profess to do, and which will be likely to arise at the particular point ; to employ compe- ent and trustworthy agents ; exercise a constant and judicious supervision of the business, so as ;o secure its accomplishment in due time, witn the proper exemption from loss or damage ; and f there is a defect in any of these particulars/ or any other, they are liable. The master should be held responsible for the larceny of tiis own servants while holding the goods as tiis servants.' When a wharfinger begins and ceases to have custody of goods and merchandise de- pends, generally, upon the usages of trade and of the business. When goods are delivered at a wharf, and the wharfinger has agreed, ex- pressly or by implication, to take the custody of them, his responsibility commences ; but a. mere delivery at the wharf without such assent does not make him liable." When goods are in the wharfinger's possession, to be sent on board a vessel for a voyage, as soon as he de- livers the possession and the care of them to the proper officers of the vessel, although they are not actually removed, he is, by the usages of trade, deemed exonerated from all further responsibility . b The wharfinger does not, how- ever, discharge his duty by delivering them to one of the crew, but should deliver them to the captain of the vessel, or some other person in authority on board of if. A wharfinger or warehouseman has a lien upon the particular goods for the freight and charges already incurred, and may detain them until paid. d A wharfinger has equally a lien on a vessel for wharfage.* He may insure for the full value and recover for the benefit of the general owner. r A warehouseman is bound to look after the goods, and see that they do not suffer from dampness or exposure.* But he is only re- sponsible for such neglect as a prudent man would not be expected to suffer in regard to his own property of equal value. h Factors, bailiffs, and commission merchants are bound to that degree of knowledge, skill, and diligence, which will enable them to tran- sact the matters intrusted to them in such * manner as to secure safety and reasonable benefit and profit to the owner. 1 They have a lien upon the goods and papers Cow. 757 ; 10 Vt. 56 ; 2 Stark, 400 ; 14 M. & W. 28. b- 5 Esp 41; Story Bailm. 453: Abb. Shipping, 226; Malloy b. 2, c. 2, s. 2; Roccus, Nat. 88; Dig. o, 4, 3; i M. & W. 174; 16 Id. 119; i Gale, 420. c-i C. & P. 638; and see 10 Bingh. 246: 2 C. & M. 531; 7 Scott, 876; 4 Q. B. 511. d-7 Watts & S. 466; 18 111. 286; 9 Wend. 268; i Esp. 109; 3 Id. 81 ; 6 East. 519; 7 Id 224: 4 B. & Aid. 50; 12 Ad. & E. 639; 7 B. & C. 212. e-Ware. Dist. Ct. 354; Gilp. Dist: Ct. 101; i Newb. Adm. 553. f-34 Eng. L. & Eq. 116. |f-28 Vt. 452; 4 Ind. 368. h-8 Jones Law, 482 ; 17 La. An. 89 ; 18 Wis 471. i-i Bing. 34. BAILMENTS BILLS, BONDS. AND NOTES. 143 in their hands for their charges in regard to the particular business.* If a bailee delivers the goods to a wrong person, he is guilty of conversion. 1 See title " LIENS." Bailor. See BAILMENTS. Ralaiice. See BOOKKEEPING; MERCANTILE LAW. Balance-Sheet. See BOOKKEEPING. Banishment. See CRIMINAL LAW. Bankable. See MERCANTILE LAW. Banking 1 . See MERCANTILE LAW. Bank Account. See BOOKKEEPING: MERCAN- TILE LAW. Bank-Note. See BILLS OP EXCHANGE AND PROMISSORY NOTES, ETC. Banker's Note. See MERCANTILE LAW. Bankruptcy. See MERCANTILE LAW; PER- SONAL RELATIONS; PRACTICE. Bans of .Matrimony. See MARRIAGE. Bar. See ACTIONS ; CONTRACT? PRACTICE. Bargain and Sale. See CON,, tcrs. Barratry. See CRIMINAL LAW; INSURANCE; M \RITIMB LAW. Barren Money. See MONEY. Barrenness. See MEDICAL LAW. Barter. See CONTRACTS. Bastard. Sec PERSONAL RELATIONS. Battery. See CRIMINAL LAW. Bawdy-House. See CRIMINAL LAW. Bay. See REAL PROPERTY; WATER. Bayou. See REAL PROPERTY ; WATER. Beaconage. See MARITIME LAW ; MONEY. Bearer. See MERCANTILE LAW. Beasts. See ANIMALS. Bed. See REAL PROPERTY ; WATER. Bees. See ANIMALS. Beggar. See PAUPER ; PERSONAL RELATIONS. Behoof. See CONVEYANCES. Belief. See EVIDENCE. Bench. See COURT. Bench-Warrant. See PRACTICE; PROCESS; WARRANT. Beneficial Interest. See CONTRACTS ; INTER- EST ; PROPERTY, ETC. Beneficiary. See PERSONAL RELATIONS. Bequest. See GIFTS. Best Evidence. See EVIDENCE. Betrothinent. See MARRIAGE. Better Equity. See PRACTICE. Betterments. See REAL PROPERTT. Beyond the Sea. See DOMICIL. Bias. See PRACTICE. Bid. See AUCTION SALES. Bidder. See AUCTION SALES. Bigamy. See CRIMINAL LAW. Bill. See LEGISLATION ; MERCANTILE LAW ; PRAC- TICE. Bill of Adventure. See MERCANTILE LAW. Bill Of Costs. See PRACTICE. Bill of Credit. See MERCANTILE LAW; MONEY. Bill of Debt. See PRACTICE. Bill of Discovery. See PRACTICE. Bill of Exceptions. See PRACTICE. BILLS OF I. \ < H A \<; I). NEGOTIABLE BONDS, AND PROMISSORY NOTES, ETC. See BOOKKEEPING, MERCANTILE LAW. BILLS OF EXCHANGE, BANK NOTES, BONDS, CHECKS, CERTIFICATES OF DEPOSIT, AND PROMISSORY NOTES, are commercial substi- tutes for money, evidences of indebtedness, and the general mediums of business and mer- cantile exchange. They are negotiable and non-negotiable. Negotiable is a term applied to a contract, the right of action of which is capable of being transferred by indorsement (of which delivery is an essential part) in case the undertaking is y-Yelv. .679, and Met.'s note ; 2 W. Black. 1154 ; Cowp. 251 : 3 T. R. 119. z-i Stark. 104; 4 Barb. (S. C.)s6i. a-4M. & W. 403; 12 Pick. 314; 16 Id. 474. l)-i3 Ind. 521 ; 46 Id. 62 ; 43 Id. 35. c-45 Id. 122. d- \6 Id. 62 ; 43 Id. 35. e-43 Id. 35. f-7 Johns. 461 ; 23 10 to A., or his order, A., or his agent, or the like, or, by delivery alone, in case the under- taking is to A., or bearer, the assignee in either case having a right to sue in his own name with all the rights of the assignor. Bills of exchange, promissory notes, govern- ment, State, county, township, district, munici- pal and corporate bonds, and bank notes, to order or bearer, are universally negotiable ; and bills of lading,* and notes not to order or bearer, are quasi negotiable ; that is, an in- dorsement will give a right of action in the name of the assignee. In general, any chose in action can be assigned so that the assignee can bring an action in his own name, and with all the rights of the assignor. There are, how- ever, some exceptions to this rule; as, in some States ; this quality of negotiability is restricted by statute ; for example, in some States, in addi- tion to being payable to order or bearer, they must also be payable in a bank incorporated under some law of that commonwealth, or some bank organized therein under some law of the United States ; and in others all prom- issory notes are by statute negotiable, but not as inland bills of exchange unless they are pay- able in a bank in the State b having an actual existence at the time the note is executed, and the note must, on its face, designate the particular bank, d as this cannot be ascertained or shown by extrinsic evidence." Non-Negotiable. Notes payable in spe- cific articles are not negotiable/ but are as- signable. When given for value received, and it is so expressed on the face of the instru- ment, it is not necessary in the first instance to prove the consideration for the promise.^ But when such note does not purport to have been given for value received, it is a special con- tract ; and if no consideration appear upon the face of it, and none be alleged, it cannot be given in evidence under a count for money ; nor can the real consideration be proved. 11 Notes payable in chattels, goods, or choses in action, not being promissory notes, are to be construed and enforced as other parol contracts. So, also, an order for a given sum, payable in goods or the proceeds thereof, is not a bill of exchange, and therefore, when the drawee has accepted such bill, the payee cannot recover on it, unless he avers and proves that the acceptor has in his hands either goods or the proceeds of them, such as are described in the order, sufficient for the payment. But if the order is so drawn as to imply that the drawee has a fund in his hands sufficient to meet the draft, the acceptance of it, though it be not a bill of exchange, is deemed an admission which will support an action for money had and re- ceived. 1 So, the acceptance of a draft drawn on a present fund in the hands of the drawee is prima facie evidence of the sufficiency of that Wend. 70. g-For the acknowledgment of value re- ceived, it is sufficient to cast upor the promisor the bur- den of proving that there was no consideration, i Johns. 484 ; 7 Id. 321 ; i Bosw. 402 S. C. 120 N. Y. 472. h-io Johns. 418. 1-2 Bl. R. 1072 ; 15 Barb. 274. 144 BILLS, BONDS, AND NOTES. funcU The possession of a promissory note not negotiable is not prima facie evidence of a trans- fer to the plaintiff" before maturity of the note, or before the commencement of the action. An in- dorsee must aver and prove the consideration of the transfer to him. k Non-negotiability, like overdue paper, is notice to all that the note or instrument is subject all the time to such just defences as the maker may have ; and whoever takes such non-negotiable paper, even before due, takes it subject to all such equities. 1 A BANK NOTE is a promissory note, m payable on demand to the bearer, made and issued by a person or persons acting as bankers, and author- ized by law to issue such notes. For many purposes they are not looked upon as common promissory notes, and as such mere evidences of debt, or security for money. In ordinary transactions of business, they are rec- ognized, by general consent, as cash. The busi- ness of issuing them being regulated by law, a certain credit attaches to them that ren- ders them a convenient substitute for money. n The practice is, therefore, to use them as money ; and they are good tender unless objected to. They pass under the word " money " in a will, and, generally speaking, they are treated as cash.P When a payment is made in bank notes they are treated as cash, and receipts are given as for cash.i A payment of a debt in bank notes discharges the debt ; r but it is the duty of the persons receiving them to ascertain, as soon as possible, their value, by presenting them for payment. 8 Payment in forged bank notes is a nullity.* But where the bank itself receives notes purporting to be its own, and they are forged, it is otherwise. If a note be cut in two for transmission by mail, and one-half be lost, the bona fide holder of the other half can re- cover the whole amount of the note. T Bank notes are governed by the rules appli- cable to other negotiable paper. They are assignable by delivery. w The holder of a note is entitled to payment, and cannot be affected by the fraud of a former holder, unless he is proved privy to the fraud. x The bona fide holder who has received them for value is pro- tected in their possession, even against the real owner from whom they have been stolen. Bank notes may be taken on execution ; but they are not to be sold.? BANK XOTK FORMS. Bank Note National. The First National Bank of dollars to bearer on demand. C. R., Cashier, No. . No. . will pay P. P., President. J-3 Marsh, 184 ; 2 Greenl. 123 ; n Mass. 145 ; 4 Tyr. k-2i Barb. 241 : 290; 2 C. &M. 5308. C. : 3 Pick. 38. i Bosw. 402; 18 How. Pr. R. 265; 3 Iowa, 334. 1-6 Kas. 489. 111-14 Gray, 59. n-2 Hill, 241 ; i Id. 13. 0-9 Pick. 542; 7 Johns. 476: 8 Ohio, 169: n Me. 475; 5 Yerg. 199 : 6 Ala. (N. S.) 226 ; see 3 Halst. 172 : 4 N. H. 2q6 : 4 Dev. & B. 435. p-ig Johns. 115 ; 7 Id. 476 ; 6 Hill, 340. q-i Ohio, 189, 524 ; 15 Pick. 177 ; 5 Gill. &J-I58; 3 Hawks. 328; 5 J. I. Marsh. 643 : 12 Johns. 200; o Id. 120; IQ Id. 144; i Johns. Ch. 231 ; i Sch. & L. 318,319; ii Ves. Ch. 662; i Rop. Leg. 3. r-i W. Bank Note United State*. A No. . $ . The United States will pay to bearer dollars Washington, D. C. R. R. , Register of the T. R. , Treasurer of the Treasury. United States. No. . BONDS issued by States or corporations under authority of law, and drawn in negotiable form, are another species of negotiable paper. The title to these instruments, which are generally made payable to bearer, passes by mere deliv- ery. The form, design, and nature of the in- strument show that it is intended for negotiation and sale, like a negotiable note or bill of ex- change. It is itself an absolute contract for the payment of a certain sum of money to the bearer; and the common usage is to sell such bonds in the market, and transfer them by delivery. BOND FORMS.' Private Corporation Bond General Form. Amount of Loan $150,000. First Mortgage per cent. Loan of the Railway Company of . United States of America, State of . $500. No. . Know all men by these presents : That the Railway Company of ac- knowledges itself indebted to of , or the bearer hereof, in accordance with the condition as to registration hereinafter mentioned, in the sum of five hundred dollars, lawful money of the United States of America, payable at the financial agency of said Company, in the city of , the first day of , with interest thereon at the rate of per cent, per annum, payable semi-annually, from the date hereof, on the first days of April and October, on the presentation and surrender of the proper interest coupon hereto attached. This bond is one of a series of five hundred of like tenor and date, two hundred and fifty of which are for the sum of one hundred dollars each, amounting in the aggregate to one hundred and fifty thousand dollars, the payment of which, with the interest as aforesaid, is secured by a mortgage bearing even date herewith, upon the railway rolling stock and corporate franchises of said Company, duly executed and delivered to the Company aforesaid, in trust for the holders of said bonds and interest coupons, duly recorded in the office of the , of ,in the State of . The principal of this bond and the interest thereon are payable at the financial agency of the Company, in the city of .without deduction for any taxes which said Company are now or may at any time hereafter be required, by any law of the United States, or the State of , or either, to retain therefrom, for national or State purposes, when and as the same respectively be- come due and payable, the said Company hereby agreeing to pay the same. This bond is accepted subject to the condition as to registration that it shall be transferable by delivery, except when registered on the books of the Company in the name of the owner, and such registry indorsed thereon. Such registered owner may at any time make the same transfer- able by delivery by having it registered as afore- said, payable to bearer. This bond shall not become obligatory until it &S. 9 H. 101 ; 182; St. 3 373- Rep. 236. Abr. Inst. 92; n Ala. 280; see 13 Wend. 101 ; n Vt. 516: H. 365: 2 Hill (S. C.) 509. *-" Wend. 9; 13 Id. ji Vt. 516 ; 9 N. H. 365 10 Wheat. 333 ; 6 Mass. 18 Barb. 545. x t-2 Hawks. 326 ; 3 Id. 568 ; 3 Penn. 30; 5 Conn. 71. n-io Wheat. 333 : see 6 B. & C. ~v-6Wend 378; 6 Munf. 166: 4 Rand. 186. w- tentp. Hardw. 53; 9 East. -48; 4 Id. 510; Dougl. x-i Burr. 452 : 4 Rawle, 185; II East. 135; Dane Index: Powell, Mort. Index: U. S. Dig. Bouv y-io Barb. 157, 596. z-Lehman & Bolton, Phila. BILLS, BONDS, AND NOTES. US hall have become authenticated by a certificate annexed to it, duly executed by the trustee. In witness whereof, the Railway Company of have caused these presents to be sealed with their corporate seal, duly attested by their secretary and signed by their president, this day of . (Signed) P. P. , President. [.Seat.] (Attest) S. Y., Secretary. Anthentication by Trustee. The Company hereby certifies that the within bond is one of the same secured by the mortgage herein named. P. P., President. pate of registry. In -whose name registered. Transfer agent. Interest Coupon. The Railway Company of Will pay, on the first day of , at its finan- jial agency, in , on surrender of this coupon, to bearer if registered to bearer, or to the regis- tered owner or order, dollars, being six months' interest due that day on bond No. . (Signed) T. R., Treasurer. Private Corporation Bond General Form. United States of America, State of . 81,000. The Railroad Company. $1,000. For value received, and without defalcation, the Railroad Company promise to pay to the Trust Company, of the city of , or bearer, one thousand dollars in gold coin of the coinage of the United States of America, on the first day f November, in the year , with interest in coin, at the rate of per centum per annum, payable on the first days of the months of May and November, in each year hereafter, on presen- tation of the respective coupons hereto attached. The principal and interest of this bond are pay- able at the office of the trustee herein named, or of its successor in the trust, in the city of . This bond is one of the series of nine hundred first mortgage bonds, five hundred of which are numbered from one to five hundred inclusive, and are for one thousand dollars each, and four hun- dred of which are numbered from five hundred, and one to nine hundred inclusive, and are for five hundred dollars each, of which said nine hundred bonds there is no priority of lien or pay- ment by one over the other, amounting in the aggregate to seven hundred thousand dollars and secured by an indenture of mortgage or deed of trust, bearing even date herewith and executed by this Company, conveying to the said Trust Company, of the city of , the railroad, its branches and appendages, rolling stock and equipments, and the franchises, rights, lands, real estate, and property of the said Railroad Com- pany, now existing or hereafter to be acquired. This bond is valid only when authenticated by a certificate indorsed thereon, duly signed by said trustee. In witness whereof, the Railroad Company has caused its corporate seal to be hereto affixed and these presents to be signed by its president and countersigned by its treasurer, this day of . (Signed) P. P., President. [Sea/.] (Countersigned) T. R., Treasurer. Authentication Certificate. The Trust Company, of the city of , trustee, certifies that the above bond is one of the series of nine hundred, of which five hundred are for one thousand dollars each, and four hundred re for five hundred dollars each, all of which are secured by a mortgage, dated the first day of No- vember, , on the railroad property and fran- chises of the Railroad Company, executed aforesaid and duly recorded in the proper offices for recording the same, in the State of . (Signed) P. P., President of the Trust Company of the city of . Interest Coupon. .* . The Railroad Company will pay the bearer hereof dollars in gold coin of the Uni- ted States of America, free of all taxes, at the office of the Trust Company, or its successor in trust, in the city of ,on the first day of , in the year , being six months' interest due on that day on their bond No. . (Signed) T. R., Treasurer. County Bond General Form. $100. State of , County of . $100. It is hereby certified that the county of is indebted to , or assigns, in the sum of one hundred dollars, payable on the day of , or before, at the discretion of the county com- missioners of said county, with interest, until called in for payment at the office of said county commissioners, from the first day of , payable semi-annually, on the first days of April and Oc- tober, in each and every year, at per cent. per annum, on presentation of the proper coupon hereunto annexed to the treasurer of said county, at his office, in the city (or town) of , in the county aforesaid. This loan is authorized by an act of the General Assembly (or Legislature) of the State of , enti- tled "An Act to regulate the manner of increasing the indebtedness of municipalities, to provide for the redemption of the same, and to impose pen- alties for the illegal increase thereof." Approved (or passed) the day of , and is issued to pay outstanding indebtedness. This certificate of indebtedness is transferable only on the books of the commissioners, in per- son or by attorney. Witness the seal of said county and the signa- tures of the commissioners, at , this day of . (Signed) C. C., M. R., N. S., (Attest) C. C., Clerk. Commissioners. Interest Coupon. $ . The county of will pay to the bearer, at the treasury of the county, in , on the first day of , dollars, for six months' interest on bond No. . (Signed) , Clerk. Municipal Bond General Form. $1,000. Consolidated Loan, Series. $1,000. United States of America, State of . The City of . Know all men by these presents : That the city of is indebted and is hereby held and firmly bound unto , or bearer, in the sum of one thousand dollars, lawful money of the United States, payable twenty years from the date hereof, at the First National Bank of ,in the city of , with interest thereon at the rate of per cent, per annum, from the first day of , payable semi-annually, at said bank, on the first day of April and October of each year, on presentation of the proper coupons hereunto annexed. By act of Assembly (or Legislature), approved (or passed) the day of , this bond is made a legal investment for all moneys held by execu- tors, administrators, guardians, or trustees in trust, and is issued in pursuance of an act of the General Assembly (or Legislature) of the State of , approved (or passed) the day of , and an ordinance of the councils of the city of , approved (or passed) the day of , to pro- vide for funding the indebtedness of said city. In witness whereof, and in pursuance of said ordinance, the president of the commissioners of said city has signed this bond and caused the seal of said city, duly attested by the clerk of said commissioners, to be hereunto affixed, ttiis day of . ' (Signed) P.P., President. [Seal.} (Attest) C. C., Clerk. Interest Coupon or Warrant. No. . The city of will pay the holder hereof, on the day of , at the bank, in , dollars, for interest due on bond No. . $ . C. C., Clerk. Municipal Bond General Form. United States of America. Water Loan, $100,000. $500. City of . No. . Know all men by these presents: That the inhabitants of the city of acknowl- edge themselves indebted to , or bearer, in the sum of five hundred dollars, to be paid at the I office of the City Treasurer, in said city, on th 146 BILLS, BONDS, AND NOTES. rirst day of September, in the year , with in- terest thereot<, to be computed from the date nereof, at the rate of per cent, per annum, payable semi-annually, at the office aforesaid, on the first days of March and September in each year, on the presentation and delivery of the annual warrants as they severally become due. This bond is a part of -'The Water Loan," created by virtue of an ordinance of the common council of said city, entitled "An ordinance to authorize the issuing of bondi. for the purpose of making the necessary repairs and improvements in the mains, machinery, and other works of the * Water Works,' passed . " In witness whereof, the inhabitants of the city of have caused this bond to be sealed with their common seal, and signed by the mayor and ttested by the treasurer this day of . [Seat.] (Signed) M. ^9.., Mayor. (Attest) T. R., Treasurer. Interest Coupon or Warvant. City of , Water Loan. interest warrant for dollars, payable to the bearer at the treasurer's office, the day f , for six months' interest on bond No. . (Signed) T. R., Treasurer. State Bond General Form. United States of America, State of . flioo. No. . This certifies that the State of is indebted unto , or bearer, in the sum of hundred dollars, payable on the day of , with per cent, interest, payable semi-annually on the first days of January and July in each year at the Bank, in the city of , on the presentation of the proper coupon hereunto annexed. This bond is issued in pursuance of an act of the General Assembly (or Legislature) of said State of , entitled "An Act," etc. (reciting the title), approved (or passed) the day of . In testimony whereof, the Governor of said State has executed these presents, duly attested by the seal of said State, and countersigned by the secretary and auditor (or controller), the day of . Dated at , this day of . (Signed) G. R., Governor. (Countersigned) S. Y., Secretary, A. R., Auditor (or Controller). Interest Coupon. The State of will pay to the bearer, at the Bank, in the city of , dollars, for six months' interest due the day of , on bond, No. , for dollars. A. R., Auditor (or Controller). Township Bond General Form. United States of America. No. . The Township of . $100. Know all men by these presents: That the township of is indebted to , or bearer, in the sum of dollars, lawful money of the United States of America, payable on the first day of November, in the year of our Lord , with interest at the rate of per cent, per annum, payable semi-annually on the first day of May and November in every year hereafter until said principal sum shall be due, on presentation of the annexed interest warrants or coupons at the Bank, in . This bond is one of a series of bonds issued by said township in pursuance of authority vested in it by an act of the General Assembly (or Legis- lature) of the State of , entitled "An Act to authorize the township of to (state what), approved (or passed) the day of ." And the faith of said township, and also the net income of said , and the proceeds of an annual tax of not less than five mills on the dol- lar on the taxable property of said township are Z-2 Pet. 580 : 10 Id. 572 ; 12 Pick. 483 ; is Wend. 527; 3 A. K. Marsh. 488'; i Const. 400; i Hill (S. C.) 44; 4 Leigh. 37 ; 15 Me. 136; 18 Id. 292; 20 Id. 139; 8 Dana, 133 ; 9 N. H. 558 ; 4 Wash. C. C. 148 ; but see 5 Johns. 384; 1 7 Ala. 247; see next note. 8-25 Miss. 143. As to whether a bill is considered as foreign or in- land when made partly in one place and partly in an- pledged for the payment of the principal and interest of said bond. In witness whereof, the , and of said township, have hereunto set their hands and affixed the seal of said township, at , in , this day of . [Seal.} (Signed) . No. Interest Coupon or Warrant. The township of will pay the bearer, at the Bank, dollars, for six months' interest due the day of . $ . (Signed) T. R., Treasurer. A BILL OF EXCHANGE is a written order from A. to B., directing B. to pay to C. a sum of money therein named. A. is called the drawer, B. the drawee, and C. the payee. Sometimes A., the drawer, i.- himself the payee. And usually the bill is made payable, not to the payee alone, but to his order or to the bearer. When B., the drawee, has undertaken to pay the bill, he is called the acceptor. If the bill is made payable to C., or dearer, C. may transfer the bill to D., by merely deliv- ering it into his hands; then D. stands in the same situation with regard to B., the acceptor, as C., the original payee, did. If the bill be payable to C., or order, then C. cannot transfer, except by a written order, usually on the back of the bill, called an in- dorsement, after which C. is called the indorser, and D., to whom it may be so transferred, the indorsee. A foreign bill of exchange is one of which the drawer and drawee are residents of coun- tries foreign to each other. In this respect the States of the United States are held foreign to each other.* An inland bill of exchange is one of which the drawer and drawee are residents of the same State or county.* The distinction be- tween inland and foreign bills becomes impor- tant with reference to the question whether protest and notice are to be given in case of non-acceptance. 1 " A holder of a bill of exchange is the person who is legally in the possession of it, either by indorsement or delivery, or both, and entitled to receive payment either from the drawer or acceptor, and is considered as an assignee. The bill must be written. It must be prop- erly dated both as to place and time of making. 4 The subscription of the sum for which the bill is payable will aid an omission in the bill, but it is not indispensable. 8 The time of payment should be expressed ; but if no time is men- tioned it is considered as payable on demand.. The place of payment may be prescribed by the drawer,s or by the acceptor on his acceptance,* but is not, as a general practice; in which last case the bill is considered as payable, and to be presented at the usual place of business of the other, see 5 Taunt. 529 : 8 Id. 679 : Gow. 56 ; i M. & S. 87. b-See 3 Kent Comm. 95. C-4 Dall. 53. C-i Pardessus, 344 ; 3 Str. 955. d-Beawes. Lex. Merc. pi. 3 ; 2 Pardess. . 333; i B. & C. 398 ; see 30 Vt. n. e-2 East. PI. Cr. 951 ; i R. I. 398. f-7 T. R. 427; 2 B. & C. 157. gf-Beawes. Lex. Merc. pi. 3: 8 C. B. 433. b-Chitty Bills, 172; 3 Jur. 34; 7 Barb. 652. BILLS, BONDS, AND NOTES. drawee, 1 at his residence, where it was made, or to him personally anywhere.^ Such an order or request to pay must be made as demanding a right and not as asking a favor ; k and it must be absolute and not contingent.' Mere civility in the terms does not alter the legal effect of the instrument. It should be addressed to the drawer by the Christian name and surname, or by the full style of the firm. m It should be subscribed by the drawer, though it is sufficient if his name appear in the body of the instrument." The parties to a bill of exchange are the drawer, the drawee, the acceptor, and the payee. Other parties connected with a bill in case of a transfer, as parties to the trans- fer, are, the indorser, indorsee, and holder. It sometimes happens that one or more of the apparent parties to a bill are fictitious persons. The rights of a bonafide holder are not thereby prejudiced where the payee and indorser are fictitious, or even where the drawer and payee are both fictitious ;P and all the different parties need not be different persons."! The qualifi- cations of parties who are to be made liable by the making or transfer of bills are the same as in case of other contracts. The sum for which the bill is drawn should be written in full in the body of the instrument, as the words in the body govern in case of doubt. 1 " The amount must be fixed and cer- tain, and not contingent. 8 It must be payable in money and not in merchandise, 4 and it is not negotiable if payable in bank bills or in cur- rency, or other substitutes for legal money of similar denominations." Words requiring payment. The word pay is not necessary ; deliver is equally operative/ as well as other words," but they must be words requiring payment." A bill should designate the payee;? but where no payee is designated, the holder by indorsement may fill the blank with his own name, z and if payable to bearer it is sufficient.* To make it negotiable it must be payable to the order of the payee, or to the bearer, or must contain other equivalent and operative words of transfer. 1 * But negotiability is not necessary to the validity of a bill in England and the United States. Value received is often inserted, but is not of any use in a negotiable bill. d Various provisions may be made by the drawer and inserted as a part of the bill, as for i-ir Penn. St. 456. j-io B. & C. 4 ; M. & W. 381 ; 4 C. & P. 35. k-M. &M. 171. 1-8 Mod. 363 : 4 Ves. C'h. 372 ; i Russ. & R. Cr. Cas. 193 ; 2 B. & Aid. 417 ; 5 T. R. 482; 4 Wend. 275 ; n Mass. 14; 13 Ala. 205 ; 3 H;ilst. 262 ; 6 J. J. Marsh. 170 : i Ohio, 272 ; 9 Miss. 303; 5 Ark. 401 ; i La. An. 48; 10 Texas, 155. m-2 I'^rdessus . 335 : Beawes Lex. Merc. pi. 3 ; Chitty liills, 186. n-2 Ld. Raym. 1376; i Str. 609; i Iowa, 231 ; 27 Ala. N. S. 515 ; see 12 Barb. 57. 0-2 H. Bl. 78: 3 T. R. 174, 481; i Campb. 130; 19 Ves. Ch. 311. p-io B. & Aid. 468. q-i8 Ala. 76 ; i Story C. C. 72. r-s Bingh. (N. C.I 425 ; 8 Blnckf. 144 ; i R. I. 398. s- 7 Salk. 375 ; 2 Miles, 442. t-7 Johns. 321, 461 : 4 Cow. 4=2 ; ii Me. 398 : 6 N. H. 159 : 7 C^nn. no; i Nott. & M'C. 254: 3 Ark. 72 : 8 B. Moti. 168 : see 7 Miss. 52. U-2 McLean, C. C. 10; 3 Id. 106 ; 3 Wend. 71 . 7 Hill, 359 ; ii Vt. 268 ; 3 Humph. 171 ; 6 Id. 303 ; 7 Mo. 595; applying to another person ; for a return with- out protest; for limiting the damages for re- exchange, expense, etc., in case of the failure or refusal of the drawee to accept or to pay.* As per advice, Inserted in a bill, deprives the drawee of authority to pay the bill until advised. A direction to place to the account of some one, drawer, drawee, or third person, is often added, but is unnecessary/ Bill of Exchange General Form. $ . Place , Date . days (or months) after sight (or date) pay to C., or order, dollars, value received (on ac- count of or, and charge to the account of). ToB.(at) . A. Another. $- T -. Place , Date . Sixty days after date (or sight) pay to P. E., or order, Five Hundred Dollars. D. R. To D. E. (at) . Bill of Exchange At or After Sight. No. . Place , Date . At sight (or days after sight) pay to the order of P. E., dollars, and charge the same to the account of D. R. To D. E. , at . Bill of Exchange After Date, etc. $ . Place , Date . days after date (or on the day of ), pay to the order of P. E., dollars. Value received. D. R. To D. E., at . Bill of Exchange As per Letter of Advice. As per letter of advice, pay to P. E., or order, dollars, and charge to the account of To D. E.,at . D. R. Bills of Exchange Set of Foreign. Place , Date . Exchange for Sterling. after of this FIRST of exchange (second and third unpaid) pay to the order of P. E. Value received and charge the same to account of D. R. To D. E., at . No. . 2. Place , Date . Exchange for Sterling. after of this SECOND of exchange (firt and third unpaid) pay to the order of . Value received and charge the same to account of D R. To D. E.,at . No. . 3. Place , Date . Exchange for Sterling. after of this THIRD of exchange (first and second unpaid) pay to the order of . Value received and charge the same to account of D. R. To D. E.,at . No. . 5 Ark. 481 ; 13 Id. 12 : Contra 15 Ohio, 118 ; 16 Id. 5 ; 17 Miss. 457 ; 9 Mo. 697 : 6 Ark. 255 ; i Texas, 13, 246. 503; 4 Ala. (N. S.) 88. v-2 Ld. Raym. 1397; 8 Mod. 364. w-g C. B. 570. X-io Ad. & E. 98, "it voits plaira cte paver" is, in France, the proper language of a bill Pailliet. Man. 841. y-26 Eng. L. & Eq. 404 ; 36 Id. 165 ; ii Barb. 241 : 13 Ga. 55 ; 30 Miss. 122 ; 16 111. 169, and see i E. D. Smith, i ; 8 Ind. 18. z-2 M. & S. 90; 4 Campb. 97 ; see 6 Ala. (A. S.) 86. a-3 Burr. 1526. b-i Salk. 132 ; Ld. Raym. 1545 ; 6 T. R. 123 ; 9 B. & C. 400 ; i Deac. & C. 275 ; i Dall. 194 ; 3 Caines, 137 : 2 Gill, 348 ; i Harring, (Del.) 32; 3 Humph. 612; i Ga. 276 : i Ohio. 272. c-3 Kent Comm. 78 ; 6 T. R. 123 ; 6 Taunt. 328 ; 9 Johns. 217 ; 10 Gill. & J. 209 ; 31 Pen. St. 506. d-2 McLean C. C. 213 ; 3 Met. (Mass.! 363: 15 Me. 131: 3 Rich. 413; 5 Wheat. 277 ; 4Fla. 47: 31 Penn. St. 506. e-Chitty Bills, 188. f-C'om Dig. M*rch. F.$; i B. & C. 398.. 148 BILLS, BONDS, AND NOTES. CHECKS. A certified check is a check which has been recognized by the proper officer as a valid ap- propriation of the amount of money therein specified to the person therein named, and which bears upon itself the evidence of such recognition. Certification of a check is usually accomplished by writing the name of the officer authorized to bind the bank in that manner across the face of the check.s There is a prac- tice of marking checks "good" by the banker, which fixes his responsibility to pay that par- ticular check when presented, and amounts, in fact, to an acceptance. Such a marking is called certifying; and checks so marked are called certified checks. A Check is a written order or request, ad- dressed to a bank, or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay, on pre- sentment to the person therein named, or bearer, or to such person, or order, a specified sum of money. The chief differences between checks and bills of exchange are : 1st. A check is not due until presented, and, consequently, it can be negotiated at any time before presentment, and yet not subject the holder to any of the equities existing between the previous parties. 11 2d. The drawer of a check is not discharged for want of immediate presentment with due diligence, while the drawer of a bill of ex- change is. The drawer of a check is only dis- charged by such neglect when he sustains actual damage by it, and then only pro tantol 3d. The death of the drawer of a check rescinds the authority of the banker to pay it ; while the death of the drawer of a bill of exchange does not alter the relations of the parties.J 4th. Checks, unlike bills of exchange, are always payable without grace.* A bank check is sub- stantially the same as an inland bill of ex- change ; it passes by delivery when payable to bearer, and the rules, as to presentment, dili- gence, of the holder, etc., which are applicable to one, are generally applicable to the other. 1 Checks are in use only between banks and bankers and their customers, and are designed to facilitate banking operations. It is of their very essence to be payable on demand, because the contract between the banker and customer is that the money is payable on demand. A check on a banker is, in legal effect, an inland bill of exchange, drawn on a banker, payable to bearer, on demand, and subject, in general, to the rules which regulate the rights and lia- bilities of parties to bills of exchange. 11 It is generally made payable to bearer, but its char- g-Sewall, Bank. See CHECKS, h-3 Johns. Cas. 5, 9 : 9 B. & C. 388 : Chitty Bills C8 Ed.) 546. i-6 Cow. 484; Kent Comm. Lect. 44, sthEd.p. 104, : 3 Johns. Cas. 5, 259 ; 10 Wend. 306: 2 Hill, 425. j-3 Man. & G. 571,573. k-25 Wend. 672: 6 Hill, 174. 1-4 Har. & J. 276; 3 Johns. Cas. 5; Id. 259 ; 6 Wend. 445 ; 20 Id. 192 ; 6 Cowen, 484 ; i Blackf 104 : 4 Seld. 190. 21 Wend. 372 ; 7 T. R. 419, 426 ; 6 Wend. 443 ; 6 Cow. 484 ; i Selden, 412. n-io Wend. 304. 0-6 Wend. 445. The party receiving a check has till the following day fo present it, where there are ordinary means of doing so, 4 Bingh. (N. C.1 268; Eng. C. L. R. Vol. 33; 5 Scott, 694, S. C. And the holder has tfce whole of acter is not changed by the fact that it is made payable to the order of the person to whom it is given. Being indorsed, the holder, if he would preserve his right to resort to the drawers and indorsers, must use the same diligence in presenting it for payment and in giving notice of the drawer's default, as that would be re- quired of him as the holder of an inland bill.' A check ought to be drawn within the State where the bank is situated, because if not so drawn they become foreign bills of exchange, subject to the law merchant. This law re- quires that they be protested, and that due diligence be used in presenting them, in order to hold the drawer and indorsers. It is not necessary to use diligence in presenting an ordinary check in order to charge the drawer, unless he has received damage by the delay.* It must be presented for payment within a reasonable time; and it is asserted that the holder is required to use even greater diligence in presenting it for payment than is necessary in presenting common inland bills of exchange. 1 " The maker's or drawer's undertaking is not that he will pay the amount, but that the bank will pay it on presentment. The drawer of a check is not discharged by the holder's failure to present it in due time, unless he have sus- tained actual prejudice, as by the failure of the banker.' In common with other kinds of negotiable paper, they must contain an order to pay money, and words of negotiability. This enables a bonafi.de holder, for value, to collect the money without regard to the previous his- tory of the paper. 1 They must be properly signed by the person or firm keeping the ac- count at the banker's ; and it is part of the im- plied contract of the banker that only checks so signed shall be paid. Checks being payable on demand are not to be accepted, but presented at once for pay- ment. Giving a check is no payment unless the check is paid." But a tender was held good when made by a check contained in a letter, requesting a receipt in return, which the plain- tiff sent back, demanding a larger sum without objecting to the nature of the tender. T A check cannot be the subject of a gift in pros- pect of death, unless it is presented and paid during the fife of the donor ; because his death revokes the banker's authority to pay." Though in. such a case a check has been considered as of a testamentary character." Checks written across with the word " mem- orandum " or " mem." are given thus, not -7 W. & S. 264; 2 Humph. 143: 10 Wend. 675 ; i Ala. 263 ; 7 Mo. 42 ; 2 Cow. 536 ; 6 N. H. 364; 7 Vern. 22. C-2O Johns. 372 ; 2 Hall, 112 : 6 How. 248. d-See 2 Yerg. 50; 15 M. & W. 23 ; but see 2 Humph. 143; 6 Ala. (N. S.) 373. e-Peake, 130; Holt N. P. C. 474 ; so a bond in the singular number, exe- cuted by several, is several as well as joint ; i Lutw. 695 ; i Camp. 403; 10 East. 264 S. C. F-n Johns. 543. 5^-7 Mass. 58; 2 Bailey, 88; 19 Barb. S. C. 248: 6 Foster, 76. h-2o Ala. 270; i Carter (Ind.) 391. 1-5 Kas. 483. f-And where for an executed consideration, a note wa legal effect to a promise to pay.i A promise to deliver the money, or to be accountable for it, or that the payee shall have it, is sufficient.* Although a promissory note, in its original shape, bears no resemblance to a bill of ex- change, yet when indorsed it is exactly similar to one ; for then it is an order by the indorser of the note upon the maker to pay the indorsee. The indorser is, as it were, the drawer; the maker, the acceptor; and the indorsee, the payee. 1 Most of the rules applicable to bills' of exchange equally affect promissory notes. ' There are two principal qualities essential to the validity of a note : i. That it be payable at all events, and not dependent on any contin- gency. 11 ' 2. It is required that it be for the payment of money only," not in bank notes.* A promissory note payable to order, or bearer, passes by indorsement, and the holder may bring suit on it in his own name. And though a simple contract a sufficient considera- tion is implied from its nature." Married Woman's Note in X. Y. $ . Place , Date . For value received, I promise to pay A. B., or order, dollars, one year from date with in- terest. And I hereby charge my individual property and estate with the payment of this note. ' M. W. Indiana Form. $ . Place , Date . Days after date, for value received, I promise to pay to P E , or bearer (or order), dollars without defalcation for value received. M. R. Pennsylvania Form. $ . Place , Date . days after date I promise to pay P. E. (or order), dollars, without defalcation. Value received. M. R. Missouri Form. Same as above, except it concludes for value received ; negotiable and payable, without de- falcation or discount. General Form. $- . Place Date, . Ninety days after date I promise to pay P. E., or bearer (or order), five hundred dollars, at , with interest thereon, at the rate of per cent. per annum, from date (er maturity) until paid. Value received. M. R. Promissory Note For Chattels Sold, ctc $ . Place , Date . On the day of , I, M. R., of , in county, State of , promise to pay P. E. (or order), at the Bank, in , dollars, with interest at the rate of per cent, per annum, from date (or maturity), until paid, and costs and expenses of collection, if not paid when due; in (part or full) payment : for (state what), the title of which shall remain in said P. E. until this note is fully paid. M. R. Promissory Note On Demand. . Place , Date . On demand I promise to pay P. E., or order (or bearer), dollars, for value received. M. R. given, expressed to be "for 20, borrowed and received," but at the end were the words, " which I promise never to pay," the word never was rejected, 2 Atk. 32 ; 4 Camp. 115 ; Bayley. 5 Ed. 5 ; 6 B. & C. 433 ; 13 Eng. C. L. 227. It-Chitty Bills, 53, 54. 1-4 Burr. 669 ; 4 T. R. 148; 3 Burr. 1224. 111-20 Pick. 132; 22 Id. 132. 11-3 J' J- Marsh. 170, 542 ; 5 Ark. 441 ; 2 Blackf. 48 : i Bibb. 503; 9 Miss. 393; 3 Pick. 541; 4 Hawks. 102; 5 How. 382. O-io S. & R. 94; 4 Watts, 400; n Vt. 268: Contra 9 Johns. 120 ; 19 Id. 144. p-See 5 Com. Big. 133, n, 151, 472 : Smith Merc. L. o, 3 e. 1.; 4 B. & C. 335 ; i Carr, & M. 16, BILLS, BONDS, AND NOTES. Promissory Note Guaranty. To be Indorsed art Note. For value received I guarantee the payment (or collection, or collectibility; of the within note. Dated . G. R. Promissory Note Joint. $ . Place , Date . days after date "We promise," etc. (as above). Promissory Sole Joint and Several. $ . Place , Date . days after date " We, or either of us " (or we, jointly and severally), etc. (as above}. /Promissory Note Payable at a Par- ticular Place. $ . Place , Date . days after date I (or we, or either of us, or we, jointly and severally), promise to pay to the order of P. E., at the Bank, in (or other place, designating it), dollars, with interest, etc. Value received. M. R. Promissory Note Judgment Note. A judgment note is a promissory note given in the usual form, and containing, in addition, a power of at- torney to appear and confess judgment for the sum therein named. It usually contains a great number of stipulations as to the time of confessing. the judgment, 11 against appeal and other remedies for setting the judg- ment aside," and other conditions.? Common Form With Waiver. $ . Place , Date . after date promise to pay , or bearer, dollars, with interest at the rate of per cent, per annum, from maturity until paid, and without defalcation. And do here- by confess judgment for the above sum, with in- terest and costs of suit, a release of all errors and waiver of all rights to inquisition and appeal, and to the benefit of all laws exempting real or per- sonal property from levy and sale. (Signed) A. B. \Seal.] Promissory Note Judgment Note. With Warner and Power of Attorney. See AGENCY, ATTORNEYS, above. $ . Place , Date . after date I (or we), the undersigned (of ), promise to pay dollars to the Bank of , or order at their office in , for value received, with interest at the rate of per cent. per annum, from maturity until paid. (Signed) A. B. Know all men by these presents : That I, the undersigned, am justly indebted to the Bank of , upon a certain promissory note of even date herewith, for dollars, value received, with interest at the rate of percent. per annum, from maturity until paid, and ma- turing . Now, therefore, in consideration of the premi- ses I do hereby make, constitute and appoint , or any attorney of any court of record, to be my true and lawful attorney, irrevocably for and in my name, place, and stead, to appear in any court of record, in term time or in vacation, in any State or Territory of the United States, at any time after the said note becomes due, to waive the service of process, and confess judg- ment in favor of the said bank, or their assigns, upon said note, for the amount thereof and inter- est thereon, together with costs and dollars, attorneys' fees ; and also to file a cognovit for the amount thereof, with an agreement therein, that no proceeding in error or appeal shall be prose- cuted, or bill of equity filed to interfere in any n-n III. 623. o-See 9 Johns. 80 : 20 Id. 296 : 2 Cow. 465 ; 2 Penn. St. 501 ; 15111.356. p-See GENERAL STAT- UTES. q-Byles, 92 ; 8 Cowen, 88 ; 31 Penn. St. 506. A promissory note imports a consideration, and none need be proved unless it be impeached. 6 Vt. 165 ; 17 Johns. 301 ; 7 Id. 321 ; 2 Bailey, 451 ; 6 N. H. 511 : 9 Johns. 217; 9 Conn. 545 ; Minor, 362 ; 5 Wheat. 277 ; 5 Por- ter, 154; 5 Ala. 383. r-7 Cowen, 322 ; 7 Johns. 26; 14 Pick. 198 : 7 Watts. 130 : 3 Watts & Serg 266. 8-5 Barn. & Cress. 203 ; 3 Johns. Cas. 5. 259 ; 4 Hill, 442. t- t Johns. Cas. 51 ; 3 Id. 29 : 8 Johns. 454 ; 5 Wend. 600. U-3 Cowen, 252. The indorsee who takes the note after it i* due takes it subject to all the equities between the manner with the operation of said judgment, anc also to release all errors that may intervene ir. the entering up of said judgment or issuing exe- cution thereon : to waive all benefits which may be entitled to by virtue of any homestead, exemption, appraisement, or valuation law, now, or hereafter in force, wherever such judgment may be entered or enforced, hereby ratifying and confirming all that my said attorney shall or may do, by virtue hereof. Witness my hand this day of , A. D. . (Witness) (Signed) A. B. [Seal.] CONSIDERATION. Negotiable notes and bills of exchange are presumed to have been made for a valid and adequate considera- tion, and whether they purport to have been given for value received or not, it is unne- cessary for the plaintiff in the first instar-.e to allege or prove a consideration. 1 In this re- spect they differ from other parol contracts. Between the original parties the considera- tion may be inquired into, r but the burden of proof lies on the defendant to rebut the pre- sumption raised by implication of law. 8 The consideration may also be inquired into when the plaintiff takes the note after it becomes due, 4 or has been dishonored ;* for in such cases the purchaser takes it subject to every defence which existed against it before it was nego- tiated ; u but it lies with the defendant to show that the plaintiff received it after it was due. T The consideration may also be inquired into where the plaintiff purchased the note or bill, knowing it to be void in the hands of the party from whom he received it, either on account of fraud,* failure," want,? or illegality of con- sideration. 2 When a purchaser takes a bill or note with notice of the facts impeaching its validity, or with sufficient information on the subject to put him upon his inquiry, he cannot recover upon it as a bona fide holder. 4 But though he has such notice, yet if he derives his title from a bona fide holder for value, he may recover thereon. b The law presumes in favor of negotiable paper a good consideration, until the contrary appears; it presumes that the holder is the owner until circumstances of suspicion are shown ; d it presumes in relation to indorsed paper that the indorsement was made before it became due ; e that the party in possession took the same in the usual course of business for value ; f that the maker of a note is the primary debtor ;S and that the acceptor of a bill of ex- change is primarily liable thereon. h Parol or verbal evidence is not admissible to contradict or vary an absolute engagement to pay money on the face of a bill or note, but it is admissible to establish a defence on the ground of want, failure, or illegality of consid- original parties to the note, including want or failure of consideration. isPicK.92; 6 Id. 259; 14^.293; 4 Mass. 370 : 5 Id. 543 ; 7 Watts, 130. V-8 Wend. 600. w-2 Adol. & Ellis (N. S.) 106, 211 ; 19 Me. 102 : 14 Id. 449. X-I2 Pick. 545 ; 5 Wend. 20 ; 8 Conn. 336. y- 15 Johns. 270. z-g Sheptey, 488. a-i Denio, 583. b- 19 Me. 102; 14 Id. 449: 2 Adol. & Ellis (N.S. 1196, 211. C-9 Johns. 217 ; 12 Wend. 484; 13 Id. 557 ; 8 Cowen, 77; 16 N. Y. 129. d-3 Johns. Cas. 5.259 ; 18 Barb. 344 : 2 Camp. 5 ; 4 Sand. 97. e-8 Wend. 600 : 7 Paige Ch 615. f-6 Hill, 336; Chitty Bills, 69 , Story Note*, <* B8i. s-i Denio, 116. h-4 Dana, 352 ; 2 "Burr, 674 ougl. 394; 8 Esp. 47. BILLS, BONDS, AND NOTES. '5' eration,' or fraud.J A verbal agreement made at the same time, and inconsistent with the note, cannot be proved to vary its terms, k either in respect to time of payment, 1 period of col- lection, 1 " or the condition on which it is to be enforced." FAILURE OF. An entire failure of consid- eration has (.he same effect as the original and total absence. The failure of consideration, either in whole or in part, may be set up as a defence between the original parties, or any other than :\ dona fide holder without noticed But in order to constitute a perfect defence or bar to a recovery in such an action, a total failure of the consideration must be shown.i Where a note is given on a sale of goods for the purchase money, the rule is, that if the chattel be of no value to any one, it cannot be the basis of a bargain. If it be beneficial to the purchaser, he certainly ought to pay for it ; if it be a loss to the seller, he is certainly enti- tled to remuneration for his loss. r Though the thing sold possess only a speculating value, still if there be no deception practised, and the pur- chaser does not exact a warranty, but gives his note for the price, there is not what the law re- gards as a failure of consideration. 8 There is a plain distinction between mere inadequacy and a total or partial failure of consideration.' Inadequacy of consideration is not in itself any defence to an action on a bill or note. u But a total failure or want of consideration is a per- fect defence, and a partial failure is, to that ex- tent, a good defence. GOOD FAITH. No one can be considered a bona fide holder of a negotiable note or bill of exchange unless he receives the same in good faith, or, as it is sometimes expressed, without notice of the facts and circumstances going to impeach its validity or diminish the amount recoverable thereon. Though he takes the note before due, he cannot recover on it if he takes it with the knowledge that it has been paid. T A person cannot be deemed a bona fide holder who takes partnership paper for the debt of an individual partner. w ILLEGALITY OF. It is a fundamental prin- ciple thac contracts which have for their object anything repugnant to the general policy of the law, or are contrary to the provisions of a statute, are void ; x and when a note or bill is founded upon or given to secure the perform- 1-Chitty Bills, 142; i Tyrw. 84; 5 Denio, 514. j-s Denio, 514. k-s Vt. 114, 152; 5 Denio, 516 ; i Hill, \i6. l-i B. & Aid. 223. ni-io B. & C. 729. n-i Cromp. & Jer. 234; i Tyrw. 84. 0-2 C. & M. 516; 6 C. & P. 316; sM. & W. 7. p-4N. H. 444; 6 Id. 447; i Bailey, 517 ; i Conn. 432 ; to Johns. 198 ; 6 Pick. 497 ; 13 Wend. 605: 2 Root, 53: 2 Wend. 431 : 3 Id. 236; 4 J. J. Marsh, 154; 2 Hill, 606 ; 17 Wend.i88; 2 McLean, 464: 3 Dev. 390; 6 How. (Miss.) 106; 24 Me. 289; 22 Pick. 166; 8 S. & Marsh. 332. <|-25 Wend. 107; n Conn. 432; ii Shepley, 284; 14 Pick. 293 ; 5 Humph. 406 ; 4 Conn. 428. Nothing less than a total failure of the consideration can be shown in bar of a recovery of * note or bill, 10 Barn. & Cress. 877 ; IQ Johns. 113 ; 24 Wend. 97. r-23 Pick. 283. 8-2 Hill, 606 ; 8 Conn. 469. t-i Hill, 606. n-i Stark. 51 ; 21 Wend. 503. v-n Johns. 128. w-4 Johns. 251 : 7 Wend. 158: 6 Duer, 309. x-2 Johns. 399. This is a rule as well in law as equity, ex turpi contract* actio non oritur, 19 N. Y. 37 ; 4 N. H. ance of such a contract, neither or the parties to the transaction can enforce it against the other.? If part of the consideration of a bill or note be fraudulent or illegal, the instrument is vitiated altogether. 1 Where parties have woven a web of fraud or wrohg, it is no part of the duty of courts of justice to unravel the thread* as between the immediate parties to the instrument. 1 * If a bill originally given upon an illegal consideration be renewed, the re- newed bill is also void, unless the amount be reduced by excluding so much of the consid- eration for the original bill as was illegal.* Contracts made in furtherance of immorality, or designed to facilitate and continue an im- moral course of life, are illegal and void ; as, where rooms are let for the purpose of prosti- tution, 8 or notes and bonds are given to secure the continuance of illicit intercourse.' But past illicit intercourse is not an illegal consid- eration for a bond or other specialty to indem- nify the injured party where executed for that purpose alone.s So, contracts for sale of libel- ous or immoral and obscene works,* or for the commission of an unlawful act ; l and contracts of indemnity against the consequences of an unlawful act,J are illegal and void, and, conse- quently, no action can be sustained upon a promise based thereon. Agreements for the general restraint of trade are illegal and void, k on the ground of public policy; but a partial restraint, not injurious to the public, founded on a fair and beneficial consideration, is valid. 1 It is a general rule of commercial law thai the illegality of the consideration of a bill or note will not invalidate it in the hands of a bona fide holder if taken in the usual course of trade, unless made void by statute." 1 In general, no person is entitled to be considered the hona fide holder of negotiable paper unless he acquires the same before it becomes dw in good faith and for value." VALUE. On a question of title, where ne- gotiable notes or bills have been misappro- priated, lost, or stolen, if a subsequent holder takes them innocently for a full or valuable consideration by giving money, or money and goods for them, in the usual course of trade, he is entitled to recover on them. As between him and the real owner the equities are equal, 385; 6 Bing. 321. y-2 Johns. Cas. 58; 5 Johns. 327. z-2 Burr. 1077 : 3 Taunt. 226 : 5 C. & P. 19 ; i ftf . & R. loo ; S. C. Story Notes, \ 190. -7 Foster, 230. b- 14 Johns. 465 ; 9 Shepley, 488 ; 5 Cowen, 547 ; 13 Barb. 533: 3 Eng. L. & Eq. 416; 10 Foster, 540; 2 Gray, 258. C-2 B. & Aid. 588; i Russ. 293; 2 Stark. 237. d-2 B. & Aid. 588; i Russ. 293; 2 Stark. 237; Bayley (6th Johns. Ch. 329 ; 8 Ohio bt. 265. n-4 tap. 97; 13 533. i-io Wend. 384. j-4 N. H. 385 ; 5 Johns. Binn. 321. fc-3 B. 322: 21 Wend. 157; see CONT )7; 13 Barb :>hns. 327 : 6 ....... 321. K-3 B. 322; si wend. 157; see CONTRACTS. 1-4 East. 190; i P. Wins. 181 ; 6 A. & E. 438 ; Id. 959 ; 33 Eng. C. L. R. 98, 254; 7 Cow. 307; 9 Mass. 522; 5 T. R. 118; 6 Seld. 241. m-2 HiU, 449. n-i Camp 10 ; 4 Greenl. 415 : 13 Peters, 56 ; i Johns. Cas. 55 ; 4 Mass. 370; 8 Id. 418; 5 Johns. 118. 0-20 Johns. 657; 15 Id. 231; 15 Id. 270; 5 Wend. 566; 6 Id. 615; <> Id. 172; Id. 170; 21 Id. 499; 24 Id. m; 2 Hill, y*- ; i Denio, 583. BILLS, BONDS, AND NOTES. and therefore the law, in order to facilitate the negotiation of commercial paper, allows the holder who has acquired it fairly, in the usual course of business, and parted with value for it, to hold it even as against the real owner.P If the holder has acquired the instrument without having parted with value for it, there is no good ground for excluding a defence in- terposed by the parties to the bill or note.i And hence the law does not protect the inno- cent holder of negotiable paper against an equitable defence, unless he has received it in the usual course of business for a valuable consideration ; it is not enough that it be a valid consideration, as between the parties to the transfer; it must also be valuable.' WANT OF CONSIDERATION. A valid and sufficient consideration is the very essence' of every contract not under seal ; and promissory notes and bills of exchange are no exception to the general rule. 8 Where a note is made for the accommodation of the payee, it is self- evident that no action can be sustained thereon in the name of the payee against the maker.' No more can the drawer of a bill maintain an action thereon against the drawee who has ac- cepted the same for his accommodation. 11 Be- tween the parties to the transaction the making of such a note or the accepting of such a bill is a mere loan of credit, designed to enable the borrower to raise money, either generally in the market or in a particular manner ; and, un- til the bill or note is negotiated, no obligation attaches to the instrument. A note made for the accommodation of the payee has no legal inception until it is transferred for value. T The maker of a note, w the drawer of a check, 1 an indorser/ and the acceptor of a bill, 1 for the accommodation of another party, without restriction in respect to the use which is to be rrade of the paper, authorizes the accommo- dated party to make any use of it of which the paper is capable ; to deliver it for future ad- vances,* as collateral to b or in payment of an antecedent debt, or he may get it discounted and appropriate the proceeds. But in order to recover on such paper, which has been mis- appropriated, the plaintiff must have received it in good faith. Evidence that he gave value for it is prima fade proof of good faith, and whatever shows him to have acquired the paper in bad faith, or with notice of facts im- peaching its validity, will defeat his right of recovery. 4 So, if a bill or note be lost or stolen, and afterward negotiated to one having p-3 Burr. 1516 ; i Burr R. 452. q-7 C. & P. 633. ir-See authorities reviewed in 6 Hill, 93. s-Chitty Con. 7, 28; 25 Eng. L. & Eq. 371. t-7 T. R. 121 : 5 Bing. 4)2 : 3 Burr, 1568 ; 23 Wend. 311. H-9 B. & B. 241 ; i Mees. & Wels. 212 ; q B. & C. 241. v-3 Sand. Ch. 77 ; ii Ohio. 62 ; 18 N. Y. 327. w-i Bosw. 335 : 5 Paige, 509 ; 2 Bosw. 248. X-6 Duer, 587. y-2 "Paige, 509 ; 5 Duer, 87; 20 Conn. 475. z-5 Sand. 7; 2 Id. 105. a-i8 N. Y. 502. b-i Bosw. 335 ; 2 Id. 248 : 2 Paige, 500 ; 34 ?enn. St. 138. c-6 Duer, 587; 5 Sand. 7; 29 Conn. 475 I-5 Wend. 600; n Johns. 128: 12 Id. 300; 15 Id. 70 ; a Id. 50 : 8 Wend. 478 ; i Denio, 583 ; 5 B. & Ad. 909 ; 10 A. & E. 784 ; s Duer. 462 ; i Id. 309. e-l Burr. 452, 2 Doug, 633; 3 Bwr, 15*6. f-io John*. 231; i$ no knowledge of these facts, for a valuable consideration, in the usnal course of business, his title is good, and he shall recover the amount. 8 Where a note or bill has been di- verted from its original destination, in violation of the agreement upon which it was made or indorsed, the holder cannot recover upon it against the accommodation maker or indorser, without showing that he received it in the ordinary course of trade, giving for it a valu- able consideration.' And, in general, where the holder takes a note or bill aftei it is due, he takes it subject to every defence existing against it in the hands of the person from whom he receives it, because he acquires it out of the ordinary course of business, and after it has been dishonored. 11 An exchange of notes for the same amount made by two firms of the same tenor is, in legal effect, a sale. 1 So, when a person gives his own note in exchange for another note, he is a purchaser for valueJ So, cross acceptances for mutual accommodation are, respectively, con- siderations for each other. k A fluctuating bal- ance may form a consideration for a bill. 1 The same general rules as apply to the nature of the consideration for other simple contracts, are also applicable to the various contracts on a bill or note. Consideration is, in general, either some detriment to the plaintiff, sustained for the sake or at the instance of the defendant, or some benefit to the defendant moving from the plaintiff. It is not necessary th3t the con- sideration should move to the defendant per- sonally ; if it moves to a third person by his desire or acquiescence, that is sufficient. There- fore, the debt of a third person is a good con- sideration to support a contract on a bill pay- able at a future day. Thus a note cannot be supported as a gift, for a gift is not consummate and perfect until the delivery of the thing promised, and until then the party may revoke his promise." From whatever cause arising, the want of consideration will defeat a recovery on a note, bill, or check, as between the original parties. Want of consideration destroys the validity of a note without any regard to the bona fides of the transaction. Fraud destroys the contract. But if the party defrauded would disaffirm the contract, he must do so at the earliest prac- ticable moment after the discovery of the cheat, and must return whatever he has received upon it. But if the thing received be entirely value- less, or a different thing from that contracted Id. 270; 5 Wend. 266; 6 Id. 615: 9 Id. 172: 37 Penn. St. 367 ; 5 Duer, 260 ; 27 Conn. 381 ; 18 Mees. & Welsby, 494; 13 Gray, 7. 3-3 Barb. Ch. 403; 5 Paige, Johns. Cas. s' : 8 Johns. 454 ; 24 Wend. 97. h-i Taunt. 224; Chitty Bilis, 217. 219: 7 Johns. 363; 36 Penn. St. 285 ; 38 Id. 307. i-3 Denio, 187, and cases there cited. J-4 Barb. 304; i Hill. 513; 4 Duer, 331. k-7 T. R. 565 ; 3 East. 72 : i B. & Ad. 521 ; 2 Denio, 621 ; 3 Hill, 504; i Cush. 168: 6 Ga. 472; 13 Ala. 346; i Doug. 188; 4 Hairing. 311. l-i B. & C. 122 : 5 M. & Ry 89, S. C.; i C. M. & R. 849 ; 5 Tyr. 255, S. C 111-2 C. & M. 368. 5 Tyr. 320,8. C.; 4 Johns. 296; 6 N. H. 386. n-7 Johns. 25 ; 5 B. & C. 501 ; 8 D. & R. 163 ; 23 Barb. 565. 0-17 Johns. 301 ; 8 Id. 139; o, Wend. 273 : 5 Enf. L. & Eq. 408. BILLS, BONDS, AND NOTES. 53 for, he may rescind without returning or offer- ing to return it.P CONSTRUCTIONS Contracts are to be construed so as to carry into effect the intention of the contracting parties.' Where the lan- guage is plain and unambiguous, there is no room and no occasion for interpretation. 1 On the other hand, where the words used admit of two interpretations, the rule is to adopt that which will give effect to the contract according to the understanding of the parties.* It is an established principle that the construction of personal contracts is to be regarded by, and their validity depends upon, the laws of the place where they were made, except when made with a view to performance in some other State or country, and then the law of such country is to prevail." The remedy on contracts is regu- lated according to the law of the place where a judicial enforcement is sought.' DRAWING AND MAKING. Bills of exchange and promissory notes are usually written on paper. They may be written on parchment, cloth, leather, or any other substi- tute for paper, capable of being transferred from hand to hand. They may be written in any language, and in any form of words ; and, like any other contract, may be written in pen- cil as well as in ink. w It is enough if the words employed import an absolute engagement to pay a certain sum of money. There are no precise words requisite to make a promissory note. x The signature or indorsement of nego- tiable paper may be by a mark.? A date in general is not essential to the validity of a bit or note ; and, if there be no date, it will be considered as dated at the time when it was made." The date expressed in the instrument is prima fade evidence of the time when the instrument was made.* And this rule applies to written instruments in general. b In general a bill or note may be post dated 6 or ante dated. The time of payment is regularly and usually stated at the beginning of the note or bill ; but if no time be expressed the instrument will be payable on demand." 1 The expression " after sight," on a bill of exchange, means after ac- ceptance, or protest for non-acceptance, and p-i Denio, 69; 2 Denio, 139; 2 Sand. 421. -i M. & G. 795: 10 B. & C. 729; 2 Scott (N. R.) 183, S. C. ; i C. & J. 231 ; i Tyr. 84, S. C. ; 2 M. & W. 414 ; 5 Dowl. 585 : 7 C. & P. 633 ; i Dans. & Lloyd, 159 ; i M. & M. 226. r-2 Kent's Comm. 553, 555. s-See title CONTRACTS. t~Id.2 Atk. 32 ; 3 Cowen,284. u-6 Paige Ch. 627 ; 2 Burr, 1077; 12 Pet. 410, 436; i How. 169, 182 ; 8 Paige, 261 ; 13 Mass. 23 ; 12 Barb. 631 ; 9 La. An. 185; 8 Johns. 189; 6 Pet. 172; 13^.65; 17 Johns. 511 : 7 De. G. M. & G. 78 ; 31 Eng. L. & Eo. 443 ; 4 N. J. 319 ; 23 Penn. St. 137 ; 6 McLean, 622 ; i Wins. 8. v-2 Mass. 84 ; 6 Id. 358 : 13 Id. 20 ; 16 Id. 157 ; i Pick. 506 ; i Johns. Cas. 139 ; i Johns. 235 ; 3 Id. 263 ; 4 Id. 285 ; 8 Id. 189; 2 Wash. 282; i Gallison,375 ; 3 Conn. 253; 2 Johns. Cas. 355 ; i H. & J. 453. w-s B.&C 1 234 ; Dow. & R. 653, S. C. ; i Stark, 267; i Phil. 122 ; Id. 53; 2 Id. 73. Stra. 629 ; 2 Ld. Raym. 1396 ; 8 Mod. 362. y-i M. 516. z-2 Show. 422 ; 3 B. & P. 173 ; 6 M. & S. 73 ; 2 Chitty, 300, S. C. ; 32 Maine, 524 ; 17 Ala. 45 : 2 Har. x-i &M. & Johns. 328 : 8 S. & R. 425 : 3 Vt. 82 ; 2 Johns. 300. a-6 Bing. 296 ; 8 Scott, 853, S. C. ; i Stark. 175 ; i M. &M.486; iM. &R.34U 4M. & P. 472, S. C. fo-4 M. Si W. sis ; 7 Scott (N. R.) 213 ; a Exch. 195 ; 17 L. not after a mere pnvate exhibition to the drawee ; for the sight must appear in a legal way.* A bill payable so many days after sight means legal sight, and the bill begins to run from the presentment and acceptance, and not from the time of mere presentment. r A bill or note must be certain as to the lime of payment.* So, also, the amount to be paid. h The order to pay need be in no particular form ; any expres- sion amounting to an order, 1 or direction, is sufficient.^ The payee should be described so that ht cannot be confounded with another person of the same name. k A promise to pay a given sum on demand, for value received, without saying to whom, is mere waste paper. The signature of a drawer or maker of a bill or note is usually subscribed in the right hand corner; but it is sufficient if written in any other part. m " I, J. S., promise to pay," has been held a sufficient signature of a promis- sory note. 1 A man who cannot write may sign a bill by his mark." If a bill be not made payable either to any payee in particular, or to the drawer's order, or to the bearer in general, it is mere waste paper. Unless a bill or note be payable to order, or to bearer, it is not negotiable, though still a valid security as between the original parties.' A bond, note, or bill of exchange, drawn pay- able to any person or persons alone, and not drawn payable to any order, bearer, or assigns, is not negotiable. 1 ! A bill or note may be pay- able to A. B., or order, or to A. B., or bearer, or to the drawer's own order. 1 " If made pay- able to order, it is assignable by indorsement ; if made payable to bearer, it is assignable by mere delivery.* It is not necessary to make notes and bills payable at any particular place, unless required by statute. It is very convenient to name the place of payment in the body of the instru- ment ; and when this is done it should be pre- sented at that place for payment.* The words " value received" are not neces- sary to a bill of exchange or other negotiable instrument, 1 for it is implied," and need not be alleged or proved/ J. 233. -13 East. 517: 8 Wend. 478. d-i D. & R. 356; 26. &C. 257: 2 C. & P. ii, S. C. : Bayley, $tk Ed. 109 ; i C. B. 401. e-Manus, 19 : 6 T. R. 212. f- i Mason, 176. g-Chitty Bills, 134 ; Ld. Raym. 1396; 8 Mod. 363 ; T Burr. 323 ; 4 Ves. 372 : 15 Muss. 387 ; 4 Mod. 242 : 7 Id. 417 ; Stra. 1151 ; 2 Bing. 185 ; 9 Yeager, 24 ; i Cow. 692 ; 6 Id. 51 ; 5 Pick. 401 ; Wi'les, 396. h-2 Stark. 375 ; 20 Pick. 132 ; 10 Serg. & R. 94. i-it L. J. 393, Exch.; 4 Exch. 200, S. C. j-Beawes. 3; Marius, n. k-4 T. R. 28 ; 2 Stark. 29 ; i Id. 106 ; i? Dyer, 5 ; 2 B. & Aid. 417 ; i Stra. 706 ; 4 B. & C. 235"; 6 D. & R. 306, S. C. ; Tyr. 96 ; 2 N. H. 446 ; 5 Blackf. 2 Bos. & . . , . . . . . . 593 : 8 Eng. 43 : 13 Ga. 55. l-i Stra. 399 : 2 Bos. & Pul. 238. in-i Moody & Malkin, 516. n-6 Wend. 637. O-i H. Bl. 608 ; Russ. C. C. 185 ; R. & R. C. C. 195 p-6 T. R. 123 ; i Esp. S. C. 231 ; 6 Taunt. 325 ; R. & R. 300; G. S. 1868, Ch. 14, g i. q-i Barring, 32; 3 Humph. 61 ; 21 Kelly, 236. r-Drawn payable to the drawer's order, it is payable to himself; 5 East. 476 ; 2 Smith, 443, S. C. 8-3 Johns. Cas. 17. t-2 McLean, 213 : 3 Met. 363 ; 3 Rich. 413 ; 2 E. D. Smith, 395 ; 31 Penn. St. 506. 11-2 McLean, 213 ; 3 Met. 363 ; if Maine, 131 ; i Denio, 116; 9 Wend. 373; 13 Id. 557, S4 BILLS, BONDS, AND NOTES. It is common to insert in bills of exchange words of advice, specifying to what account the amount directed to be paid is to be charged. The drawer sometimes gives the drawee a gen- eral direction in words like these, " and charge the same to my account," and sometimes makes it specific by directing the payee to " put it to the account of A. B.," or "to the B. road as- sessment," or to the cargo of a certain ship, etc. w But such words of advice are not essen- tial in bills of exchange.* A bill of exchange being an open letter of request for the payment of money, must be reg- ularly addressed to the person on whom it is drawn ; and this is usually done at the bottom on the left hand of the bill. For no one can be liable as acceptor but the person to whom the bill is addressed, unless he be an acceptor for honor.y AMBIGUOUS, CONDITIONAL, AND IRREGULAR INSTRUMENTS. A note cannot be made by a man to himself, without more. Neither can it be made to himself and another man. 1 But a note made payable to the maker's order be- comes, in legal effect, when indorsed in blank, a note made payable to bearer ; a and when spe- cially indorsed a note payable to the indorsee's order. b If an instrument be made in terms so ambig- uous that it is doubtful whether it be a bill of exchange or promissory note, the holder may treat it as either at his election. A man may draw a bill on himself. d Bills and notes must be for the payment of money only, and not for the payment of money and the performance of some other act. 8 There- fore a note to deliver up horses and a wharf and pay money at a particular day is no promis- sory note. r Nor must a bill or note be in the alternative.* And it must be for the payment of money in specie.** And for the payment of money. 1 The order or promise must be to pay absolutely, and at all events ;J the payment must not depend upon a contingency. 11 It is not material that the time when the event may happen is uncertain, provided it must happen at some time or other ; thus, a note payable on ^he death of A. B., or of the maker, is good. 1 The bill or note must not be made payable out W-Chitty Bills, 162 ; Story Bills, ? 65 ; 4 Hill, 262. TL-i Barn. & Cress. 392 ; i Wend. 522. y-$ Barn. & Adol. 114. z-2 B. & P. 14 n. ; Id. 120 ; 8 B. & C. 345. a-i7 L. J. 280, C. P. ; 6 C. B. 336. b-i? L. J. 287, C. P. ; 6 C. B. 336. C-i Bay. 66 ; i Wend. 5*2 ; Minor, TQ5: 1400110.362; 7 Watts & S. 264 ; 9 Watts, 353 ; 13 enn. St. 173^ l-Carthe, 508 ; i Shaw. 163; 2 Burr. ">. 643. f-2 Stra. 1271 ; B. N. P. 272 ; ; 4 Exch. 410, S. C. ; 9 Q. B. 312. g- R 1077. e-i6 Barb. 643. f-2 Stra. 1271 ; B. N. P. 272 ; 19 L. J. 6 Exch, ; 4 Exch. 410, S. C. ; 9 Q. B. 312. g- Gilb. Cas. L. E. 93 ; Ld. Raym. 1396. h-A note pay- able in current funds, or New York funds, is not negoti- able, 2 McLean, 10 ; 3 Humph. 171 ; n Vt. 268; 23 Wend. 71 : 6 Humph. 303 ; 3 McLean, 106 : 15 Ohio, 118 : 9 Sm. & Marsh. 457; '9 Mo. 697; 16 Ohio, 5; i Erg. 355; i Texas, 13; Id. 246; Id. 503. A bill pay- Able in "currency" is not a bill of exchange, 7 Miss. 595 ; so, a draft payable in "Arkansas money," 5 Pike, 481. I-Where the instrument contains a stipulation that the money or a portion of it shall be paid by a set off, it w no promissory note, 10 Ad. & Ellis, 92: 2 P. & D. 456, S. C. J-35 Me. 364. k-s T. R. 482 ; 4 Mod. 242 ; x Burr, 323.- a Camp. 205 ; 4 M . & W. 168 ; a Stra. 1151 ; of a particular fund," for the fund may prcrrr insufficient. If a bill be defective as a bill or note it may still be evidence of an agreement. Any material alteration made in a note after its execution or indorsement, such as inserting words of negotiability or altering the time 01 place of payment, discharges the previous par- ties to it. u But where a blank is left in it, there is an implied authority to the holder to fill up the instrument, and make it in fact what it was designed to be. If made payable tc blank, the person to whom it is negotiated may fill it up by inserting his own' name ;P if made payable to the person who shall thereafter in- dorse it, it is negotiable without any alteration, and may be transferred by indorsement.' Also, if a person sign his name upon a blank piece of paper, and deliver it to another to draw above his signature, he by that act authorizes it to be filled up for any amount.' AGREEMENTS INTENDED TO CONTROL THE OPERATION OF BILLS OR NOTES. Such agree- ments are either written or verbal. Such written agreement is either on the instrument itself or on a distinct paper ; and is either contemporaneous with the completion of the bill or note, or it is a subsequent agreement. A memorandum on a bill or note, made before it is complete, is some- times considered as a part of the instrument so as to control its operation, and sometimes not. If a memorandum make the payment contingent, it will be incorporated in the note." But, where it is merely directory, as if it points out the place of payment,* or be merely the expression of an intended courtesy," or import that a col- lateral security has been given, T or be intended to identify the instrument," it does not affect its operation. A written agreement, on a distinct paper, to renew, or in other respects, to qualify the lia- bility of the maker or acceptor, is good as between original parties. 1 But a written agree- ment, though contemporaneous, will not re- strain the operation of the bill or note, if it be collateral, that is, if other persons besides the parties to the bill or note be parties to it.? No verbal agreement can take effect, if con- Comb. 227, S. C. ; Bayley 16, 6 Ed. ; 2 B. & P. 413 ; * Camp. 417 ; 2 & Ad. 660 ; 5 Q. B. 599 ; i N. & W. 146 ; 2 Bing. 185; 9 Mo. 358; 2 Ld. Raym. 1563; n A. & E. 214. 1-2 Stra. 1217; 2 Per. & Dav. 365; 10 Ad. & El. 272 : ni-2 Ld. Raym. 1361 ; 8 Mod. 265 ; i Stra. 591, S. C. ; 2 Ld. Raym. 1563 ; 2 Bla. R. 782 ; 3 Wils. 207, S. C. ; i Ves. Jun. 280 ; 5 T. R. 482. // is eisen- tial to a bill or note that it be payable in money only and net out of a particular fund , i Cowen, 691 , 6 Id. 108; 4 Porter, 205; n Mass. 143; 3 Hals. 262; a Blackf 47' 6 J. J. Marsh, ITO ; i S. & Marsh, 393 ; 3 Pike i ; i Harr. 440; i Spears, 127: 8 B. Mon. 168; IJemo, 159; 8 tng. 12. 11-19 Johns. 391; 17 Wend. 238 ; 24 Id. 374 ; 3 Barb. 374 ; 35 Penn. St. 80 ; o Ohio St. 443; 85 Eng. C. L. 238. o-i7Wend. 238; 7 Cowen, 336; 10 Wend. 93; 21 New York, 531. p-3 Maule & S. 90; 31 Barb. 100. q-2 Hill, 59. r-i H. BI. 313; 21 111. 223. tt-i Camp. 205 ; 4 M. & Sel. 25 ; 4 Camp. 127. S.C. ; I4M.&W. 344. t-4M.&Sel. 505. 11-4 Camp. 217; i Stark. 53. v-4 Ad. &E.786; 6Nev. & M. 364, 8 Har. & W. 49, S. C. w-i M. & W. 232. x- 4 244 ; 9 B. & C. 758 ; 4 Man. & Ryl. 591, S. C. BILLS, BONDS, AND NOTES. 155 temporaneous with the making of the instru- ment; for that would be to allow verbal evidence to vary a written contract.' Evidence is admissible to deny the receipt of value, but not to vary the engagement.* GUARANTY. The engagement of a surety is accessory to the agreement of the principal, and it is a general rule of law that whatever discharged the contract of the prin- cipal discharges also that of the surety. It results from the definition of a surety's engage- ment, as being accessory to a principal obliga- tion, that the extinction of the principal obliga- tion necessarily extinguishes that of the surety, it being of the nature of an accessory obligation that cannot exist without its principal ; there- fore, whenever the principal is discharged, in whatever manner it may be, not only by actual payment or a compensation, but also by a re- lease, the surety is discharged likewise ; for the essence of the obligation being that the surety is only obliged on behalf of the principal debtor, he therefore is no longer obliged when there is no longer any principal debtor for whom he was obliged. In like manner the surety is dis- charged by the novation of the debt.* A per- son who guarantees a note is no party to the note. b His contract is special, and must be specially declared on. An absolute guaranty of payment made on a good consideration, in- dorsed on the back of a note, is an engagement that the maker shall pay it at maturity, and that if it is not so paid the guarantor will himself pay it. d A guaranty for collection is a very dif- ferent contract from a guaranty of payment ; the latter being a contract that the money shall i>e paid at maturity, while the former is in sub- stance a warranty that it is collectable. 6 A guaranty that a note is collectable is a condi- tional promise, binding upon the guarantor only in case of diligence. In order to perfect the obligation so as to render him liable thereon, the guarantee must use diligence in the en- deavor to collect the note, for this is a condition precedent/ The terms of the guaranty must be complied with before the guarantors can be rendered, liable on the contract. Notice of non-payment is not necessary in order to charge the guarantor, but it is advisable to give him notice, inasmuch as it frequently becomes im- portant to prove notice as a means of rebutting the presumption of laches in the party guaran- teed. 8 A general guaranty of the note, or a guaranty of its collection, implies a right on the guarantor's part, that the party guaranteed shall use diligence in collecting the debt of the principal debtor, and give to him (the guaran- tor) every opportunity to protect himself against y-The cases are too numerous to begin to cite, z-i M. & 0.795; 10 B. & C. 729; 2 Scott (N. R.) 183, S. C. ; iC. &J. 231; i Tyr. 84, S. C. ; 2 M. & W. 414; 5 Dowl. 585 ; 7 C. & P. 633 ; i Dans. & Lloyd, 159 ; i M. & M. 226. a-Post. NOVATION, Poth. ; Ob. p. 2 ch. 6, 3 i ; Chitty Con. 528; 3 J. J. Marsh. 527; 7 Monr. 398 ; 4 Id. 494 : 9 Wheat. 680 ; 8 Wend. 512. fo-6 Barb. S. C. 282 ; 5 Wend. 307 ; 2 Hill, 190. C-i Chitty PI. 339; it How. Pr. 218. d-2o Johns. 365. 6-19 Johns, fc) ; 20 Id. 365 ; 6 Cowen, 624 ; 4 Id. 173 ; i Wend. 457 : his principal. 11 The terms of the contract of guaranty are construed strictly.* . INDORSEMENT AND TRANSFER. To indorse is to write on the back. Bills of exchange and promissory notes are indorsed by a party's writing his name on the back. An indorser is the person who makes an in- dorsement. An indorsee is the person to whom the in- dorsement is made. The indorsement is that which is written on the back of an instrument in writing, and which has relation to it; writing any name on the back of a promissory note or other negotiable instrument^ A blank indorsement is one in which the name of the indorser only is written upon the instrument. Though generally made by writing the indorser's name on the back, k still a writing across the face may answer the same purpose. 1 A conditional indorsemtnl is one made sub- ject to some condition without the performance of which the instrument will not be or remain valid. m An indorsement in full is one in which men- tion is made of the name of the indorsee." A qualified indorsement is one which re- strains, or limits, or qualifies, or enlarges the liability of the indorser, in any manner differ- ent from what the law generally imports as his true liability, deducible from the nature of the instrument. The words generally used are " sans recours " (" without recourse ").P An indorsement is generally made primarily for the purpose of transferring the rights of the holder of the instrument to some other person. It has, however, various results, such as ren- dering the indorser liable in certain events; and hence an indorsement is sometimes made merely for the purpose of additional security. This is called accommodation indorsement when done without consideration other than an exchange of indorsements. A restrictive indorsement is one which re- strains the negotiability of the instrument to a particular person or for a particular person or purpose.^ THE EFFECT OF THE INDORSEMENT on a ne- gotiable promissory note or bill of exchange is to transfer the property in the note or bill to the person mentioned in the indorsement when it is made in full, or to any person to whose possession it may lawfully come thereafter even by mere delivery, when it is made in blank, so that the possessor may sue upon it in his own name, as well as if he had been named as the payee. r And any person who has possession of the instrument is presumed to be the legal 13 Id. 543; 14 Id. 231 ; 21 Id. 255 ; a Hill, 139; 5 Barb, 501; 6 Id. 547. f-2 Hill, 139; 13 Wend. 543; 24 Id. 231 ; '9 Johns. 69 ; 6 Barb. 547 ; u A. & E. 438; 3 B & P. 249. g-Story Bills, 305. h-i2 Peters, 497; 9 S. & R. 198; 12 Pick. 133, 416; 2 How. 457; 4 Humph. 303 ; 9 Ship. 164 ; 12 S. & M. 595. 1-14 Barb. 123. j- 20 Vt. 499. It-i3 S. & R. 315. l-i8 Pick. 63; 16 East. 12. 111-4' Taunt. 30. n-Chitty Bills, 170. o-ld. tSifc Ed.) 261. p-3 Mass. 225; 12 Id. 14. q-i Rob. xzt r-n Pet. 80; 2 Hill, 80. '56 BILLS, BONDS, AND NOTES. bona fide holder and owner for value, until the contrary is shown. When the indorsement is made before the note becomes due, the indorsee and all subsequent holders are entitled to re- cover the face of the note against the maker, without any right on his part to offset claims which he may have against the payee ; or, as it is frequently stated, the indorsee takes it free from all equities between the antecedent parties of which he had no notice.' Indorsers, also, unless the indorsement be qualified, become liable to pay the amount de- Mianded by the instrument by the failure of the principal (the maker of a note, or acceptor of a bill), upon due notification of such failure, to any subsequent indorsee who can legally claim to hold through the particular indorser.* Where a person, not the payee of a note on demand or on time, puts his name on the back at the time of its inception, he is liable as an original promissor or surety, but not as in- dorser. 11 Notes and bills payable to order, or to bearer, or containing any words to make them assign- able, may be transferred so as to give the in- dorsee a right of action against all antecedent parties ; and bills or notes containing no ex- press words to make them assignable, may, in general, be assigned so as to give the assignee a right of action upon them against the as- signor/ A bill or note, if payable to order, is not transferable except by indorsement ; if payable to bearer, it is transferable by mere delivery.* If a bill be made payable to A., or order, for the use of B., B. has but an equitable title, and the right of transfer is in A. alone. x No one but the payee or person legally interested in the instrument can convey the title by indorsement.- 7 Indorsements are of two kinds : an indorse- ment in blank, or, as it is sometimes termed, a blank indorsement, and an indorsement in full, or a special indorsement. No particular form of words is essential to any indorsement. The mark of a person who cannot write is a suffi- cient indorsement. 1 A blank indorsement is made by the mere signature of the indorser on the back of the bill ; its effect is to make the instrument thereafter payable to the bearer." An indorsement in full, besides the signature of the indorser, expresses in whose favor the indorsement is made. Thus, an indorsement in full by A. B. is in this form : " Pay C. D., or order; A. B.," the signature of the indorser 9-3 T. R. 80, 83 ; 7 Id. 423 ; 8 M. & W. 504 : 8 Conn. 505; 13 Mart. 150; 16 Pet. i. t-Story Bills, \ 224; Parsons Bills, u-8 Pick. 122; 4 Id. 311 ; 24 Id. 64; 9 Mass. 314 ; 36 Me. 147 ; 4 Pick. 385 ; 7 Mass. 233 ; 14 Id. 279; ii Id. 436; 5 Rich. 30$; 18 Mo. 17; Id. 140; 1 G. Greene, 331 ; 2 Duer. 33. v-Bayley Bills, 65 ; Byles Bills, 113. w-Ante. x-Carthe, 5; 2 Vent. 207; Skin. 264: 4 Esp. 187; 2 B. & C. 293. y-4 Esp. 187; 2 Barn. & Cress. 293; 15 N. Y. 575; 7 Gray, 217; i Hill, 287; 20 N. Y. 138; i Comst. 116; i H. Bla. 607; 4 T. R 28; 17 N. Y. 605; 6 Mass. 388. By the law merchant, bills and notes payable to order can be trans- ferred only by indorsement, 2 Bibb. 83: 2 Brock. 20; 7 Mass.; 6 Id. 386; 16 Id. 314. z-i M. & M. 516. a- Doug. 611,612. b-Com. Rep. 311 ; i Stra. 557: 2 Burr. 1216; i Bla. 295, & C.; 3 Bing. N. C. 829; 5 Scott. 3; being subscribed to the direction ; its effect is to make the instrument payable to C. D., or his order only, and accordingly, C. D. cannot transfer it otherwise than by indorsement. The omission of the words " or order " is not ma- terial in a special indorsement, for the indorsee takes it with all its incidents, and, among the rest, with its negotiable quality, if it were originally made payable to order. b The in dorsee may convert a blank indorsement into a special one in his own favor by superscribing the necessary words. The indorsee may also convert the blank indorsement into a special one in favor of a stranger, by superscribing above the indorsement the words " pay A. B., or order;" and if he transfer the bill in that way instead of indorsing, he is not liable as an indorser. d Where there are several blank in- dorsements, the holder may fill up the first one of them to himself, or may deduce his title through all of them. 6 The holder of a pro- missory note indorsed in blank may fill it up with any contract consistent with the character of an indorsement.' It is not essential to the validity of these written transfers that they be on the back ; they may be on the face of the bill.8 All payees of a bill or note must join in the indorsement. 11 There is no legal limit to the number of indorsements. A misspelling will not necessarily avoid an indorsement.* Neither indorsement nor acceptance* are com- plete before delivery of the bill.* LIABILITY OF AN INDORSER. Every indorser of a bill is in the nature of a new drawer, 1 and is liable to every succeeding holder in default of acceptance or payment by the drawee. But a man may indorse a bill without personal responsibility, by expressing on his indorse- ment that it is made with this qualification, that he shall not be liable on default of acceptance or payment by the drawee. An indorsement " without recourse," or at the indorsee's " own risk," will not expose the indorser to any lia- bility. 111 While these words, or any words which convey the same meaning, protect the indorser from any demand on him, they con- vey to the indorsee the paper itself, with all the negotiable qualities, in the same way as an in- dorsement with no words of restriction or ex- ception would do ; n but without these the in- dorser is liable for the whole amount. A party transferring a bill may also decline per- sonal responsibility, by converting an existing blank indorsement into a special one in favor 6 Dowl. 63; 6 C. B. 336. c-i2 Mod. 193; i Salk. 126. d-2 Camp. 442. e-8 Pick. 48: ii Id. 316; 12 Mass. 78. f-7 Cowen, 336 ; 2 Penn. St. 911 ; 6 Harr. & Johns. 282; ii Johns. 52; i Mo. 67 ; ii Mass. 436; 14 Pick. 385 ; 15 Mass 436 ; 4 Watts, 448 ; 2 South. 821 ; i Denio, 367; 2 Humph. 346; 4 Ired. 266. fg-i6 East. 6. ll-3 McLean, 94 ; 2 Doug. 653 ; 5 Monroe, 172. But see for a disregard of this rule in reference to a payee whose name was left in the note by mistake, 6 How. 190. i-2 C. & M. 589; i Tyr. 415, S. C. j-5 B. & Aid. 474: i D. & Ry. 38, S. C. lt-5 Price. 428 : 3 P. & D. 174 ; 12 Ad. & El. 455; i M. & W. 769; Bayley Bills (6 Ed.) 137. 1-2 C. M. & R. 441 : 5 Tyrw. 107, S. C.; * M. & W 317; 5 Dowl. 460; i M.& H. 44. S. C. m-3 Atass. 225; 12 Id. 14; 5 Met. 201; 33 Me. 424. u-8 Barr. 468; 5 Met. 201. 0-7 Taunt. 159. BILLS, BONDS, AND NOTES. of his transferree.P A bill may be indorsed con- ditionally, so as to impose on the drawee, who afterward accepts, a liability to pay the bill to the indorser or his transferrees in a particular event only. An indorsement admits the signa- ture and capacity of every prior party.i The striking out of an indorsement by mistake will not discharge the indorser. r Nor the strik- ing out by mistake of the acceptance.' But the striking it out by design will. In an action by the holder of a note against an indorser, the plaintiff cannot be permitted to strike out the name of any indorser prior to the defendant.* When a bill is returned to the first indorser after protest, he may strike out his indorsement, though it be in full, and maintain an action in his own name." A holder of a bill, with sev- eral indorsements in blank, may strike out all the indorsers' names after the first, and write over the first indorser's name an assignment to himself. T OF A PERSON TRANSFERRING BY DELIV- ERY. A transfer by mere delivery, without in- dorsement, of a bill of exchange or promissory note made or become payable to bearer, does not render the transferrer liable on the instrument to the transferree. It is a general rule that the Iransferrer is not even liable on the considera- tion, if the bill or note so transferred by deliv- zry, without indorsement, turn out to be of no value by reason of the failure of the other par- ties to it. For the sending to market a bill or note payable to bearer without indorsing it, is prima facie a sale of the bill; and there is no implied guaranty-of the solvency of the maker, or any other party. w Such seems to be the gen- eral rule governing the transfer by delivery, not only of ordinary bills of exchange and promis- sory' notes, but also of bank notes. Nor is there any hardship in such a rule, for the rem- edy against the transferrer may always be pre- served by indorsement or by special contract. The rule, however, is not without exceptions. If instead of cash the creditor consents to take notes, this is a favor to the debtor, and it will thence be inferred, in absence of evidence to the contrary, that the notes were not to be in payment, if they turn out to be of no value without the fault of the creditor. A bill of ex- change or promissory note, either of a debtor or any other person, is not payment of a precedent debt, unless it be so expressly agreed. x Giving a creditor a bank check is not payments But if the bill or note, made or become payable to bearer, be delivered without indorsement, not in payment of a pre-existing debt, but by way p-See ante, q-i Ld. Raym. 443 ; 12 Mod. 244; i Salk. 127; 2 Barnard, 82 ; 2 Camp. 182 ; Holt. N. P. R. 550; 3 B. & C. 280; 5 D. & R. 214, S. C. r- 3 B. & C. 428 ; 5 D. & R. 403, S. C. S-is East. 17 ; 2 B. & Ad. 757. t-8 Porter (Ala.) 360. 11-3 Wheat. 183; Paine, 156; i Sumn. 480. v-5 Munford, 388; Pet. C. C. 171 : 3 Marsh, 158. w-6 B. C. 373 ; i C. & M. 637. X-5 Johns. 68 ; 2 Watts, 121 ; 9 Id. 280 ; 9 Johns. 310 ; 2 Hali, 547; Coxe,8s; 9 Conn. 23; 6 Cranch. 253 ; 2 Bailey, 574 ; i Covren, 359 ; 2 Southard, 765 ; 2 A. K. Marsh, 277; 8 Conn. 472 ; i Doug. 507; 3 McL. 265; 7 Hill, 128; 2 Rich. 241 ; o Mo. 59 ; 5 Barb. S. C. 398. v-2 Pick. 204; 4 Johns. 296; 78. &R. 116; i Hall, 56; Id. 78 ; o Wend. 602. z-Per LORD KENYON, 3 T. R. of exchange for goods or other bills or notes, or for money transferred to the party delivering the bill, at the same time, such a transaction is a sale of the bill by the party transferring it, and a purchase of the instrument with all risks by the iransferree. It is extremely clear, that if the holder of a bill send it to market without indorsing his name upon it, neither morality nor the laws of the country will com- pel him to refund the money for which he sold it, if he did not know at the time that it was not a good bill.* A transferrer by delivery, though he does not in general warrant the sol- vency of the maker of a promissory note or bill of exchange, does warrant that the bill or note is not forged or fictitious. 11 A transferrer by de- livery cannot be liable in any case to a subse- quent transferree, either on the instrument or the consideration. 1 " But, in all cases, if notes or bills are transferred as valid, when the trans- ferrer knows they are good for nothing, the sup- pression of the truth is a fraud, and he is liable. If A. could show fraud or knowledge of the maker's insolvency in the payer, then it would be wholly immaterial whether the notes were taken at the time of the sale or afterward." The doctrine of implied warranty in sales ap- plies to the sale of a note, so that one who sells an indorsed note gives an implied warranty that the indorsement is genuine. 4 RIGHTS OF THE INDORSEE. A transfer by indorsement vests in the indorsee a right of action against all the parties whose names arc on the bill, in case of default of acceptance or payment ; and against an innocent indorsee for value, no prior party can set up the defence of fraud, duress, or absence of consideration. 8 If a bill be reindorsed to a previous indorser, he has, in general, no remedy against the interme- diate parties, for they would have their remedy over against him, and the result of the actions would be to place the parties in precisely the same situation as before any action at all.' But where the holder has previously indorsed, and the subsequent intermediate indorser has no right of action or remedy on that previous in- dorsement against the holder, there are cases in which the holder may sue the intermediate in- dorser.s It is competent for an indorser of a note, on again coming into possession of the note, to maintain an action thereon, without producing extrinsic proof of ownership. 11 If any person who indorses a bill of exchange to another, whether for value or for the purpose of collection, comes into the possession thereof again, he is regarded, unless the contrary ap- 759, and see 5 Bing. 485 ; 3 M. & P. 130 S. C. ; 3 Ves. 368 ; i Esp. 447 ; I L. R. 442 ; 12 Mod. 241 ; Com. 57 ; 15 East. 7 ; 10 Ves. 204 ; 5 Taunt. 488 ; i Marsh, 157, S. C.: 7TR. 64: 6 B. & C. 373; i C. & M. 637. a-5 Taunt. 489; i Marsh. 157,6. C. ; i Marsh. 155; 5 Taunt. 495; Ry. & M. 49: 6 Mass. 321 ; Id. 182; t Johns. 445 ; Story Notes, p. 123. b-2 Sch. & L. 112. C-6 B. & C. 373: 9 D. & R. 391, S. C. ; 3 T. R. 759. l-2 Bailey, 385; n G:i 142. e-Ante, Consideration. f-4 T. R. 470; 2 B. & C 483 : 3 D. & R. 650. 5-15 L. J. 108 Exch. ; 15 M. & W. 208, S. C. ; 16 M. & W. 834; 18 L. J. ; 65 C. P. ; 19 L. J. ; Q. B. 400. And to reply . Story note to the facts is no departure, Id. tory notes, 9 Porter, 366; 7 Cranch. 159; 3 Wheat. 172. 476. h- 15* BILLS, BONDS/AND NuTES. pear in evidence, as the bona fidt holder and proprietor of such bill, and is entitled to re- cover, notwithstanding there may be on it one or more indorsements in full subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsers, whose names he may strike from the bill or not, as he may think proper."' Where a bill or note is merely indorsed to another and deposited with him as a trustee, he can only use it in conformity with the stipu- lations on which he became the depositary of it. The trust may be indorsed on the bill it- self by a restrictive indorsement, or a restrictive uirection appended to the payee's name, so that into whose hands soever the bill may travel, it will carry a trust on the face of it.J The following have been held restrictive di- rections or indorsements : " The within must be credited to A. B." k " Pay to A. B., or order, for my use." " Pay to A. B. for my account." " Pay to A. B. only." The omission of the words " or order" in a special indorsement will not restrain the nego- tiability of a bill. 1 OF TRANSFEREES BY DELIVERY. The indorsee of a bill payable to order and not made payable to bearer by a blank indorse- ment, has no right to the bill, either so as to retain it against the real owner, or to sue any party upon it unless the indorser had a right to indorse. Whereas, if a check, bill, or note be made, or have become, payable to bearer, the title of the holder, both as against the former holder, on the one hand, and the maker, acceptor, or indorser, on the other, is not affected by any infirmity in the title of the transferrer, provided the holder took it bona fide. A note payable to A., or bearer, may be negotiated by delivery only, even if it be in- dorsed by A. n If a man takes honestly an instrument made or become payable to bearer, he has a good title to it, with whatever degree of negligence he may have acted, unless his gross negligence induced a finding of fraud. Gross negligence may be evidence of bad faith, but it is not the same thing. TRANSFER UNDER PECULIAR CIRCUMSTANCES. An indorsement may be made either before or after acceptance. If any bond, note, or bill of exchange is indorsed or delivered after the day on which it is made payable, and the indorsee may institute an action thereon, against the maker, drawer, or obligor; the de- fendant will be allowed to set up the same defence that he might have done had the same action been instituted in the name and for the i-Id. Per. LIVINGSTON, J. See 13 Conn. 412. J-i Atk. 247; 2 Burr. 1227; i Bl. R. 295, S. C. ; Doug. 615; Carthew, 5 ; 2 Vent. 307, S. C.; 7 Taunt. 100 ; i Moore, 543, S. C.; 8 Taunt. 100; 8 B. & C. 622; 5 Bing. 515; 3 Y. & J. 220, S. C.; i Raym. 160 ; 15 Wend. 362. k- Doug. 615 ; 2 Burr. 1227 ; Carth. 5 ; 2 Vent. 307, S. C.; 7 Taunt. 100; i Moore. 543, S. C. 1-Com. Rep. 411 ; i Stra. 557 ; 2 Burr. 1216 ; i Bl. R. 295, S. C. Wl-4 T. R. 28. n-s Pick. 526. 0-4 Ad. & El. 870; 6 N. & M. 372, S. C.; 10 Ad. & El. 874; 2 P. D. 579, S. C.; $ B. & Ad. 1098 ; 3 N. & M. 188 ; 5 B. & Ad. 909 ; 3 N. & M. 57, S. C.; i C. M. & R. 855; 5 Tyr. 255, S. C.; use of the person to whom the bond, note, or bill was originally made payable. After a bill or note is due, it comes disgraced to the indorsee, and it is his duty to make in- quiries concerning it. If he takes it, though he give a full consideration for it, he takes it on the credit of an indorser, and subject to all the equities with which it may be incumbered.' An indorsee of an overdue bill or note is liable to such equities only as attach on the bill or note itself, and not to claims arising out of col-' lateral matters.*! The same rule applies to* checks transferred a long time after they are issued, for a check is payable immediately, and the holder keeps it at his peril, and a person taking it after it is due takes it also at his peril. r A promissory negotiable note, payable on de- mand, unless transferred within a reasonable time, will be considered overdue and dishon- ored. 8 The law, in the absence of any evi- dence on the subject, presumes a transfer to have been made before the bill was due.* In the absence of all proof as to the time when a note was indorsed, the court will presume that it was indorsed while current." If any such bond, note, or bill of exchange is indorsed on or before the day on which the same is made payable, and the indorsee institutes an action thereon, the defendant may give in evidence on the trial any money actually paid on such bond, note, or bill of exchange, before the same was indorsed or assigned to the plaintiff, on proving that the plaintiff had notice of the said payment before such indorsement was made and accepted. After the death of the holder, his personal representatives should transfer. PARTIES. AGENTS. Whatever a man may do by him- self except by virtue of a delegated authority he may do by his agent." Disqualifications for contracting on one's own account are not disqualifications for contracting as an agent for another; for an agent is a mere instrument. Therefore, infants, and other persons laboring under disabilities, may be agents." No particular form of appointment is neces- sary to enable an agent to draw, accept, or in- dorse bills, so as to charge his principal. He may be specially appointed for this purpose, or may derive his power from some general or implied authority. The authority of an agent to transfer a note by indorsement may be cre- ated verbally, whether the principal be an individual or a corporation, and such authority may be inferred from facts and circumstances 4Ad.&E.2i. o-Id. p-i Camp. 19; sT. R. 80; 7ld. 420; i Taunt. 224; i Stark. N. P. 483; Bayl. (6 Ed.) 161; Chitty (9 Ed.) 218 ; Rose. 386 ; 10 B. & C. 558. q-i B. & C. 558; 5 M. & R. 296, S. C.; i C. M. & R. 565 : 8 Dowl. 252; i Gale, 98,8. C.; 4 Dowl. 76; n L. J. Exch. 168; 9 M. & W. 506, S. C.; 2 Barr. 103; 15 Mo 399. r-4 B. & C. 330 ; 6 D. & R. 445 ; 2 C. & P. ii . 9 B. & C. 388; 4 M. & R. 411; see ante, CHECK; 4 Whart. 252. s-2 Mich. 401. t-7 C. & P. 408; 4 Ad. & El. 838; 6 N. & M. 294; 2 .Harr. & W. 4 6, S. C.; 12 M. & W. 165. n-i? Vt. 299; 8 N. H. 334 ; 14 111. 51 ; 25 Vt. 553 ; 19 Barb. S. C. 147. V-9 Co. 75. W-Co. Litt. 52, a ; 14 Ala. 469. BILLS, BONDS, AND NOTES. 159 Connected with the transaction/ When a per- son has authority, as agent, to draw, accept, or indorse a bill for another, he should do it in such a manner as to show that it is the act of his principal : as by signing it " A. B., by C. D.," his agent. w Preceding his own name with words that express the fact that he signs for an- other. 1 Subsequent recognition of an agent's acts is equivalent to previous authority ; pro- vided the agent, when he acted, assumed to act as agentJ An authority is often implied from circumstances; as, if an agent has formerly been in the habit of drawing, accepting, or in- dorsing for his principal, and his principal has recognized his acts. 1 CORPORATIONS carrying on business under no restraining act may make promissory notes and draw bills of exchange where these are the usual and proper means to accomplish the purposes of their organization ; and such notes and bills are presumed legal and valid* where they are not prohibited by law, and are received in good faith. But are invalid where given in violation of law, or for purposes wholly foreign to those for which the corporation was created.' DRUNKENNESS when total, producing a com- plete, though temporary, suspension of reason, is of itself a defence to an action on a bill or note. b The person intoxicated has no agreeing mind. c EXECUTORS. The executor of a deceased party to a bill or note has, in general, the same rights and liabilities as his testator.* 1 There- fore, if a bill be indorsed to a man who is dead, by a person ignorant of his death, that will be an indorsement to the personal representative of the deceased. 6 On the death of the holder of a bill or note his executors or administrators may indorse ; f and an indorsement by the exec- utors or administrators is, for all purposes, as effectual as an indorsement of the deceased.* Presentment, 11 notice of dishonor, and payment, should be made by and to the executor, or ad- ministrator, in the same manner as by, or to, the deceased. 1 INFANTS can make a binding contract for necessaries only. And an infant can never bind himself even for necessaries when he has a parent or guardian who supplies his wants.J What are considered necessaries' 1 depends upon the rank and circumstances of the infant in the particular case. All his other contracts are V-3i Me. 225. -vr-2 Stra. 55 ; 4 R. I. 30. x-Chitty Bills, 33. y-Viners Abr. Ratih. 5 B. & C. 909 ; Eng. C. L. R. vol. ii ; 8 D. & R. 64^; 10 B. & C. 288 ; Eng. C. L. R. vol. 21 ; 6 Man. & G. 236 ; Eng. C. L. R. vol. 46. Z-3 Esp. 60 ; 13 M. & W. 598 ; Lloyd & Welley's Mer. Cas. 178. a-s Blackf. 250 ; 7 Ohio, 31 ; i B. Mon. 14; 15 Johns. 44; 9 Paige, 470; 2 Hill, 265; 9 Ohio, 291; 10 Gill & Johns. 299 ; 3 Wend. 94; iqN.Y. 37; 18 Id. 240. b-3 Camp. 33, 454 ; 13 M. & W. 623. At least by a person who had notice. 2 Exch. 287 ; 4 Exch. 17, S. C. C-I3 M. & W. 623; 3 Camp. 33; Starkie, 126; 10 Ind. 109 ; 5 Cal. 412; 8 Ohio. 214; 2 Vt. 297 ; 6 Watts, 139 ; 3 Cowen, 445 ; 2 Paige Ch. 30 ; 22 Wend. 526. d-2 P. Wms. 196; i C. B. 402. e-5 B. & Aid. 204; Eng. C. L. R. vol. 7. f- 3 Wils. i ; 2 Stra. 1260, S. C. g-2 Jac. & Walker, 243 ; 13 S. & Marsh, 373 ; ii Vt. 604 ; 5 Gilman, 474; i Smith (Ind.) 170; 7 S. & Marsh, 49?; 6 J. J. Marsh, 446. h-Malloy, 2, 10. 11 considered voidable and void. A distinction usually of importance : 1st, because a void- able contract may be afterward affirmed, but a contract absolutely void is incapable of confirma- tion ; and, 2d, because a void contract may be treated by all parties as a nullity ; but contracts voidable can only be avoided by the contract- ing party himself. An infant's contract on a bill or note is voidable only, and his liability may be established by ratification after full age. 1 The confirmation or ratification must be dis- tinct, and with a knowledge that he is not lia- ( ble on the contract. A mere acknowledgment of a debt, or a payment of a part of it, will not support an action on such a contract." 1 When an infant indorses negotiable notes or bills, he does not pass any interest in them as against himself; his act is voidable, but neither the ac- ceptor nor subsequent indorsers can allege his infancy to evade their liability ; n nor can the drawer of a bill set up the infancy of a payee and indorser as a defence to an action thereon against himself. An infant may sue on a bill,? but he sues by his guardian or next friend,i and payment should accordingly be made to him. Parties contracting with an infant assume all the inconveniences incident to the protection which the law allows him. MARRIED WOMEN are in general restricted by statute, and bargain, sell, and convey their real and personal property, and enter into con- tracts with reference to the same, subject to such restrictions. r NON COMPOTES MENTIS. It is a general rule of universal law that the contracts of a lunatic, an idiot, or other persons non compos mentis from age or personal infirmity, are ut- terly void." Sanity is to be presumed, and the burden of proof is on the party denying it. But after a general derangement has been shown, the burden is upon the other party to show the sanity at the time of doing the par- ticular act.* PARTNERS. The law presumes that each partner in trade is intrusted by his co-partners with a general authority in all partnership af- fairs. Each partner, therefore, by making drawing, indorsing, or accepting negotiable in- struments, 11 in the name of the firm, and in the course of the partnership transactions, binds the firm, whether he signs the name of the firm, or signs by procuration, or accepts, in his own i-i2 Ala. 193. k-T3 M. & Wels. 252. J-4 Watts, 80; 16 Mass. 28 ; 2 Paige, 419 ; 10 Mo. 451. l-i Exch. 122; 1 Met. 559 ; 17 Wend. 419:3 1!. Mon. 72 ; 3 Wend. 479; 4 Chand. 39 ; 2 N. H. 51 ; 8 Ala. 725 ; 2 Bailey, 114 ; 3 N. H. 314 ; 10 Id. 194 ; i Denio, 108 ; 7 Ired. 258 ; x Pick. 202; 2 Hill, 120; i B. Mon. 289. m-3 Barr, 428 ; 3 Rich. 164; 9 Mass. 62 ; lold. 137; 14^.457; I Pick. 221 ; 4 Id. 448 ; 12 Conn. 550 ; ii S. & R. 305 ; 10 N. H. 194-220; 9 Id. 436; 2 Hill, 120; 2 Hawks, 535 ; 19 Wend. 301 ; 16 Ala. 186. 11-4 Esp. 187; 38 Me. 450. 0-4 Taunt. 458 ; Chitty Bills, 20, 200 ; 15^355.272. p- 2 Maule & S. 205 ; 4 East. 210; 6 Taunt. 118; 5 B. & C. 501 ; 8 D. & C. 163, S. C. q-Myer's Code, % 53- 57 and notes. r-See MARRIED WOMEN, PERSONAL RELATIONS. s-Inst. Lib. 3, tit. 20, j. 8 ; Dig. Lib. 50, tit. i, 5, 40, 124. t-s Johns. 144 ; 8 Humph. 145. 11-7 T. R. 207; i Salk. 126; i Ld. Raym. 175, S. C. ; a Vern. 277; 2 Esp. 731 ; 7 East. 210; 3 Smith, 99,8. C. ; 13 East. 175. i6o BILLS, BONDS. AND NOTES. name, a bill drawn on the firm. T Partners are bound by a note given by one party in the partnership name, although in violation of pri- vate instructions from one partner to another.* A partner has no right to bind his co-partner by a note, except in a partnership transaction.* It is binding, nevertheless, in the hands of a bona fide holder, without notice.* But an action cannot be maintained against the firm where a partner has signed his name only to the instrument, though the proceeds were in reality applied to partnership purposes, 1 unless the name of the signing partner were also the name of the firm.* But a partner cannot bind his co-partner by a joint and several note." The firm is not liable where the partner varies the style of the firm, unless there be some evidences of assent by the firm to the variance, or unless the name used though inaccurately yet sub- stantially describe the firm. Even if a partner exceed his authority, and pledge the partnership credit on a negotiable security for his own pri- vate advantage, his co-partners are liable. But if a party taking a bill or note of the firm knew, at the time, that it was given without the con- sent of the other partners, he cannot charge them. d And the taking of a joint security for a separate debt raises a presumption that the creditor knew it was given without the concur- rence of the other partners. 8 If there existed fraud and collusion between the partner and his creditor, the bill is void in the hands of the fraudulent holder, not only against the partner- ship but against other parties to the bill.' But securities which may be unavailing against the firm when in the hands of the party privy to the transaction, will, nevertheless, bind them when in the hands of an innocent indorsee for value.* A dormant partner, whose name does not appear, is bound by bills drawn, accepted, or indorsed by his co-partners in the name of the firing Though a man really have no interest in a firm, yet if he suffer himself to be held out to the world as a member of it, he thereby author- izes those to whom he has been held out to treat him as a contracting party. 1 To make a man V-i Camp. 384; i6M.&W.879. W-i A. K. Marsh, 181 ; 7 Mo. i; 14 Ohio, 592. x-i A. K. Marsh, 257. y-i Bailey, 146; 2 Penn. 160: i Chip. 438; 5 Pick. 412 ; 3 15 Wend. 364 ; 10 Id. 461 ; 9 Vt. 252 ; 4 S. & R. 307 _; 3 N. H. 386 ; 2 Dev. & Bat. 535 ; i Stewart, 526; 5 Watts, 454 ; 4 Johns. 251 ; 5 Cowen, 688 ; 3 Wend. H'5 : 10 Id. 461 ; 3 Rich. 307; 22 Penn. St. 21. z-2 Camp. 308 ; i Rose 61 ; 15 East. 7. a-8 B. & C. 427 ; Eng. C. L. R. vol. 15; 2 Man. & Ry. 459; S. C. i Buck. loo ; 7 East. 210; 3 Smith, 192, S. C. fo-4 Bine. 8; Eng. C. L. R. vol. 13; 12 Moore, 125; 2 C. & P. 401, S. C. C-i B. & C. 146 ; Eng. C. L. R. vol. 8 ; 2 D. St R. 281 ; ii Ad. & E. 339; Eng. C. L. R. vol. 39 ; 3 ler. & D. 187, S. C. d'-i Stark, 202; 2 Esp. 524; Peake, 61 ; 7 M. & W. 264 ; 9 B. & C. 532 ; 12 East. 317 ; 7 M. & G. 637. e-8 Ves. 540 : 2 Esp. 731 ; 2 Stark. 347; 2 Gill & Johns. 118. -13 East. 175. g-n Johns. 514: 5 Blackf. 210; 7 Ala. 19; 12 B. Mon. n ; 6 Hill, 115: 2 Ala. 502; 3 Hill, 279: 2 Watts & Serg. 152; 4 How. 404; ii N. H. 505; 14 Wend. 133; n Barb. S. C 312; 16 Penn. St. 399; n Wend. 75; 6 Blackf. 387; 6 Hill, 114; 3 Ired. L. 238; 2 Rich. 587; i Penn. S. 417; 5 Conn. 574; 7 Wend. 158; a Cush. 309 ; 7 S. & Marsh. 192; 13 Id. 112; 31 Me. 454; 17 Ala. 145; 4 liable as a nominal partner he must have been held out as such to the plaintiff. i After a dissolution, the ex-partners have no longer power to bind each other by bills 01 notes to persons aware of the dissolution. 11 But notwithstanding a valid dissolution of an osten- sible partnership by an agreement between the partners, still the authority of ex-partners to bind each other by bills, notes, or other con- tracts, within the scope of the former partner- ship, continues till the dissolution be duly notified. 1 When dissolution is by death, notice is not necessary to protect the estate of the deceased. PRESENTMENT AND PAYMENT. ACCEPTANCE. Acceptance is an engagement by the drawee to pay the bill when due n in money. Having funds in his hands belonging to the drawer, it is his duty, according to mer- cantile usage, to honor the bill by accepting it." If he has been supplied with funds expressly to meet the bill, or have money on deposit under such circumstances as to imply a contract on his part to accept the draft, he owes it as a duty to the drawer, to accept the bill ; just as a bank or banker is bound to honor and pay checks drawn by customers on a cash account. P Without ac- ceptance a banker is liable to his customers, if, having sufficient funds, he neglects to pay his checks. A bill can only be accepted by the drawee,*! except for honor. r If the drawee be incompetent to contract, as, for example, by reason of infancy, etc., 8 the bill may be treated as dishonored. Acceptance by one partner binds the co-partner. 1 But a bill drawn on several persons not in partnership should be accepted by all, and, if not, may be treated as dishonored." Acceptance will, however, be binding on such as do make it. T There cannot be two or more separate acceptors of the same bill not jointly responsible. There is no cus- tom or usage of merchants, according to which, if a bill be drawn upon one man, it may be accepted by another. A bill must be accepted by the drawee, and failing him by some one for the honor of the drawer. There cannot be a series of acceptors." Acceptance after the time of payment is binding. 1 H\K, 259; 2 Ala. 502; 15 Wend. 364; S. C. 18 Wend. 4MA; 2 Wend. 251, S. C.; 22 Wend. 324; 14 Me. 271; 16 Id. 416; 2 Carter (Ind.) 488; 23 Wend. 311. li-io B. & C. 288 ; 2 B. & Ad. 53 ; 7 East. 210 ; 3 Smith, 199, S. C I-io B. & C. 20. J-io B. & C. 141; Eng. C. L. R. vol. 21 ; i M. & R. 126, S. C. k-4 B. & Ad. 172 ; i Nev. & M. 104, S. C.: 2 Johns. 300; 8 Md. 399: 6 Ihd. 304 ; 4 Ohio St. 2 ; 33 N. H. 351. 1-33 Me. 366 : 6 Barb. S. C. 244; 16 B. Mon. 355; 6 Johns. 144; 8 Ind. 215; 33 Barb. 458. m-3 Mer. 619. n-4 East. 72. The drawee is therefore no party to the instrument until he accepts the bill, Chitty Bills, 281. O-But he is not legally bound to do so, any more than a debtor is bound to give his creditor a promissory note for the amount due, Story Bills, $> 113, 117, 238. p-i Barn. & Adol. 415 : 20 Eng. C. L. 412. <|-Unless he has recognired the acceptance as his, 5 C. B. 583. r-B. & Ad. 114; i L. J.: 92 K. B.; 13 L. J.; Q. B. 305; 18 L. J. 274. - Chitty (9 Ed.) 283. t-5 Hill, 232; 2 Id. 635; Bailey Bills, Ch. 6, JJ i ; Byles Bills, 144 : 5 Day, 511. n-Mar. 16; Holt, s>97' Manus, 64. v-B. N. P. 270; Bailey, 58 : C. P. M. T. 1850. w-2 Camp. 447. x-2 Green, 339; i Ld. Raym.364: Id. 574 ; ' Salk. 29, S. C.; 5 Tyr- 172 ; i C. M. & R. 565 ;" i Gale, 98, S. C. BILLS, BONDS, AND NOTES. 161 The following rules are, in general, observed in regard to the acceptance of bills of exchange : No person should be charged as an acceptor of a bill of exchange, unless his acceptance is in writing, signed by himself or his lawful agent. If such acceptance be written on paper other than the bill, it should not bind the acceptor, except in favor of a person to whom such ac- ceptance shall have been shown, and who, in faith thereof, shall have received the bill for a valuable consideration. An unconditional promise in writing to ac- cept a bill before a bill is drawn, is deemed an actual acceptance in favor of every person to whom such written promise shall have been shown, and who, upon the faith thereof, shall have received the bill fora valuable considera- tion. A letter written within a reasonable time before or after the date of a bill, intelligibly describing it, and promising to accept it, is, if shown to one who takes it on the credit of the letter, a mutual acceptance binding on the promisor.7 Every holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill, and a refusal to comply with such request should be deemed a refusal to accept, and that the bill may be protested for non-acceptance. The preceding rules should not be construed to impair the right of any person to whom a promise to accept a bill may have bee made, and who, on the faith of such promise, shall have drawn or negotiated the bill, to recover damages of the party making such promise, on his refusal to accept such bill. The design of these rules is to discourage the taking of such acceptances and engage- ments to accept ; for where anything less than a written acceptance on the bill is taken, the instrument is left incumbered with conditions and qualifications greatly impairing its character as a negotiable instrument. The acceptance must be in writing, and must be signed by the acceptor or his agent. 1 The usual and regular mode of making an acceptance on the bill is writing the word "accepted" and subscribing the drawee's name. According to the law merchant, any words written by the drawee on a bill, not putting a direct negative upon its re- quest, as "accepted," "presented," "seen," the day of the month, or a direction to a third person to pay it, is prima facie a complete ac- ceptance.* The acceptance under the statute must be signed, but the signature of the drawee written across the face of the bill is a sufficient writing and signing. b If any person upon whom a bill of ex- change is drawn, and to whom the same is y-2 Gallison, 233 : S. C. 2 Wheaton, 66; 15 Johns. 613 : i Pet. 265 ; 2 Id. 181 ; 3 Mass, i ; 9 Id. 55 ; i Hall's L. J. 486; 2 Wend. 545; 5 Id. 414: 4 Peters, in ; 5 Hill, 433 ; 2 Green, 339 ; 2 Story, 213 ; 2 McLean, 462 : 8 Porter, 263 ; 3 Ala. 581. z-s Hill, 413 ; S. C. 7 Hill, 577. n-Bayley Bills, Ch. 6, i ; Story Bills, 243 ; lAtk. 611; B. N. P. 270; iM.&R.ioo; Anon. Comb. 401; jo Johns. 207; 15 Id. 6. b-2 Hill, 582. c-Per Ld. Ellenborough, 3 Stark. 289. d-i3 Fairfield, 466. delivered for acceptance, destroys such bill, or fails or refuses, within twenty-four hours after such delivery, or within such period as the holder may allow, to return the bill ac- cepted or non-accepted to the holder, is deemed to have accepted the same. The person on whom a bill of exchange is drawn, when it is presented to him for acceptance, ought to de- termine whether he will accept it or not ; and if he determine not to accept it, he is bound to return it, for the party is entitled to the imme- diate use of the thing, and if the drawee deprive him of the use of the instrument by destroying it, he is liable as if he had written his name upon it. A bill drawn upon one by himself is con- sidered as an accepted bill ; d so, if it is not ad- dressed to any one, 6 and so of a corporation/ The holder is entitled to require from the drawer an absolute engagement to pay in money according to the tenor and effect of the bill, unincumbered with any condition or quali- fications. A general acceptance, without ar.y express words to restrain it, will be such an ab- solute acceptance.* An acceptance varying from the tenor of the bill, either in the time, the sum, the mode, or place of payment, is conditional. 11 In respect to the sum, acceptance for a part of the amount required to be paid, is good according to the custom of merchants and binds the acceptor. 1 So, an acceptance to pay at a different time or place, or in a different manner than that specified in the bill, binds the acceptor according to the terms of his en- gagement.J The conditional acceptance be- comes absolute as soon as its condition is per- formed. k If the drawee offer a qualified acceptance, the holder may either refuse or accept the offer. If he mean to refuse it, he may note the bill, and should give notice to the antecedent parties. If he intend to acquiesce to it, he must give notice of the nature of the acceptance to the previous parties, and obtain their consent. Qualified acceptances are of two kinds : conditional and partial, or varying from the tenor of the bill. Whether an acceptance be conditional or not is a question of law.* A verbal condition is inadmissible in evidence to qualify the absolute written engagement, even between the original parties. 1 A partial or varying acceptance varies from the tenor of the bill, as where it engages to pay part of the sum, or to pay at a different time from that at which the bill is made payable by the drawer." The liability of the acceptor, though irre- vocable when complete, does not attach by merely writing his name, but on the subsequent delivery of the bill, or upon showing to some e-Edw. Bills, 416. f-i Dougl. (Mich.) 193; see 13 Barb. 636. In legal effect, such a bill is a promissory note, i M. & Ry. 120; 15 Barb. 274. g-i T. R. 182. h-Bayley Bills, Ch. 6, and information of the protest sent with the notice. r A protest is, in form, a solemn declaration, written by the notary under a fair copy of the bill, stating that payment or acceptance has been demanded and refused, the reason, if any, assigned, and that the bill is, therefore, protested. Ordinarily the bill is presented for accept- ance in the first instance by the holder, or his agent; and, if refused, is then taken to a no- tary, who is to present it again to the drawee for acceptance ; and if he then refuse, the offi- cer thereupon makes a minute upon the bill, consisting of his initials, the month, the day and year, and the reason, if any be assigned, for non-acceptance, together with his charge. The making of this minute is usually called noting the bill, and is only a preliminary step a memorandum for the use of the notary when he comes afterward to draw up the protest ; it is unknown to the law, and is, in itself, of no legal effect.* If there be no notary in or near the place where the bill is dishonored, it may be protested by any substantial person of the place, in presence of two or more witnesses." A notarial certificate of protest in a foreign country or State proves itself, and is sufficient evidence of the dishonor of a foreign bill. v The custom of merchants requires that there should be a protest in case of the non-accept- ance of a foreign bill of exchange; and the proper officer to make this protest is a notary public.* Drawn up in the usual form, the cer- tificate of the notary should be authenticated by his seal of office : so executed, it is received in all courts, without any auxiliary support, as evidence of the protest in a foreign State. 1 PROTEST FORMS. Protest General Form. United States of America, State of , County, ss. (Here copy the bill or note and indorsement.) Be it known : That on the day of the date hereof, at the re- quest of , the holder of the original , of which a true copy is above written, I, the under- signed, notary public for the , by lawful au- thority duly commissioned and sworn, residing in the , during business hours, for such purposes, .did, ttx.. (stating the facts concerning presentment, etc.) Whereupon, I, the said notary, at the request aforesaid, have protested, and do hereby sol- emnly protest, against all persons and every party concerned therein, whether as maker, drawer, drawee, or acceptor, payer, indorser, guarantee, surety, or otherwise howsoever, p-i Ld. Raym. 743; Edw. Bills, Parsons Bills, q- * Bay. 376; 6 Wheat. 572; i Rep. Const, c. 100; i Monr. 91 ; a N. H. 558 ; 7 Leigh- i?3- r-z T. R. 713 ; 5 Id. 239; Ld. Raym. 993. s-The reason assigned for refusal should be inserted, when one is given, t-4 T. R. 170; 2 Id. 713; 7 East. 350. 11-5 Duer, 462; Bayley (Jills, 7,? 2; Chitty Bills, 333; Story Bills, 276 ; Byles against whom it is proper to protest, for all ex- change, re-exchange, costs, damages and interest accrued, suffered, or to accrue or be suffered for want of thereof. Of which demand and re- fusal I duly notified . (State name of party notified, post-offict addressed. and time notice sent. ) Done and protested at aforesaid, the day of . N . P. , Notary Public. [Seal.] Protest General Form. \_Copy of bill (or note) and indorsements, etc.} United States of America (Slate, commonwealth, 01 territory, etc.) county, ss. On the day of , A. D. , at the reques of A. B. , the holder of the original bill of exchange (or promissory note), of which the above is a true copy, 1, N. P., a notary public in and for said county of , presented the same to D. E. , tho drawer \or maker), therein named (or, if payable at a particular place, say at , in said State, com- monwealth, or territory), and demanded acceptance (or payment) thereof, which was refused. 1 Where- upon I, the said notary, at the request aforesaid, did protest, and by these presents do solemnly and publicly protest, as well against the drawer (or maker) (and indorsers) of the said bill (or note) as against all others whom it does or may concern, for exchange, re-exchange, and all costs, dam- ages, and interest already accrued, and to be here- after incurred for want of acceptance (or payment) of the same: And on the same day I served due notice of the protest aforesaid upon the following named per- sons by depositing such notice in the post-office at , in said (State, commonwealth, or territory), in a sealed envelope, with the postage prepaid, addressed to said persons, as follows: A notice for , directed to . A notice for , directed to . [Seal.] In testimony whereof I have hereunto set my hand and affixed my notarial seal, the day and year aforesaid. Protest fees, dollars. N. P., Notary Public. In common practice the notary not only pro- tests the note or bill for non-acceptance or non- payment, but also sends or serves upon the drawer and indorsers due notice thereof.' To Protest Notice General Form. Place , Date Sir : The bill of exchange (or promissory note) dated , drawn (or made) by D. M.,on (or in favor of) D. E., for dollars, payable (in- dorsed by S. S. and R. R.), has this day by me been duly protested for non-acceptance (or non-pay- ment.) N. P., Notary Public. ; ^Holders. Protest Notice General Form. To -. Place , Date . A bill of exchange (or promissory note), drawn (or made) by , in favor of , for dollars, dated the day of , indorsed by , was delivered to me for protest by , the holder, be- ing this day due, its acceptance (or payment) was demanded and refused. You will be held for its payment. N. P., Notary Public [Seal.] Notice of the dishonor of a bill need not state that the holder looks to the party notified for the payment.* Nor need it state who the holder is. a Notice that a bill has been pro- tested for non-payment is sufficient notice for a demand and refusal.* Where there is no dis- pute as to the facts, the sufficiency of the notice Bills, 200. v-8 Wheat. 333 ; 2 Peters, 179 ; Id. 668 ; Harr. & Johns. 399 ; 4 Id. 54 ; 5 Duer, 462. w-3 Wend. '73: 3 Johns. 311. x-2 Hill, 227, and authorities cited. y-2o Wend. 81 ; 8 Wheat. 326. 1-3 Conn. 517 ; i Litt 194 ; 2 Hawks, 560 ; s Shep. 360. a-a6 Maine, 45. b- 2 Doug. 425 ; 10 N. H. 526; 9 Mete. 174 ; i Doug. 296; 3 Md. 251 ; 4. Id. 290 ; Id. 409. BILLS, BONDS, AND NOTES. I6S is a question of law for the court.* Any form of notice to an indorser is sufficient to fix his liability, if the instrument in question was in- tended to be described in such notice, and the party was not misled or deceived thereby as to the instrument intended. 1 It is not necessary that a copy of the protest should accompany the notice of the dishonor of a foreign bill," but information of the protest should be sent. b When a bill or note is delivered to a bank for collection, there is an implied contract on the part of the bank to give notice in the manner required by the usage and custom of the busi- ness. 8 The agent to whom the bill is indorsed for collection is the holder for the purpose of giving and receiving notice, and it is perfectly immaterial through how many hands the notice may have to pass, so it be transmitted with reasonable diligence by each of the successive parties.* 1 Notice of non-acceptance by a mere stranger is insufficient. W'-ere a bill is drawn by one of several partnerr on the firm, in rela- tion to partnership business, 8 or where the drawers and acceptors are the same persons, no notice of protest need be given. For in each of these cases the party to be charged has notice of the dishonor of the bill so drawn in the very act of dishonoring it. f After a bill of exchange has been dishonored for non-accept- ance, it is not necessary to present the same for payment, s PRESENTMENT FOR PAYMENT. Although a presentment for payment is not necessary for the purpose of perfecting or com- pleting the liability of the acceptor of a bill or the maker of a note, it is a condition precedent to the liability of the drawer and indorser. As against the maker of a promissory note, or the acceptor of a bill of exchange, it is not neces- sary for the holder to aver or prove a demand of payment ; a suit is a sufficient demand, as in other cases of a precedent debt or duty. h The drawee by accepting the bill, becomes the principal debtor, and thenceforth stands in the same relation to the holder as does the maker of a note. 1 The holder is required to perform two distinct acts in order to charge these parties, or, in other words, to convert the conditional contract made by them into an absolute under- taking. Hence, a waiver of non-payment by the indorser does not, according to the law merchant, dispense with the demand itself.J But a waiver of protest, where the term is evi- dently used in its popular acceptation, is a waiver of both demand and notice. k In actions y-ai Wend. 10; 23 Id. 620; 25 Id. 277; 3 Hill, S. C. 77; 6 How. (Miss.) 473 : 4 Dev. 277; i Speers, 244; 5 Barb. S. C. 490. z-14 Penn. St. 483; 14 Conn. 362; i Branch. 301 ; 10 Shepl. 392 ; i Comst. 413 ; 17 Howard, 606 ; 18 Id. 187. a-4 A. & E. 870 ; 6 N. & M. 372, S. C. b-2 T. R. 713 ; s Id. 230 ; 2 Ld. Raym. 993 ; 2 Esp. 511 ; 3 Camp. 334 ; i M. & S. 288, S. C.; B. N. P. 271. e-2 Johns. 372; S. C. 3 Cowen, 662. d-2 Hill, 451 ; 20 Eng. L. & Eq. 220; 15 M. & W. 231. e-2o Johns. 176; i Camp. 82; 3 Gray, 334. f-i Denio, 409; 6 Sdd. 51 : 2 Conn. 654. {f-2 Hill, 227; 16 East. 105; 8 N. H. 66. ll-4 Johns. 183: 17 Id. 248 ; 8 Cowen, 171; 3 Wend. 13: 7 Barb. 652; n Wheat. 171; 13 East. 459. i-4 Johns. 183 ; 17 Id. 248. 1-6 Mass. 52* i) Wend. 629. It- 1 Comst. 186. 1-z Burr. 669. upon bills of exchange by an indorsee against an indorser, the plaintiff must prove a demand of, or due diligence to get the money from the drawee (or acceptor) ; and in actions upon promissory notes, by an indorsee against an in- dorser, the plaintiff must prove a demand of, or due diligence to get the money from the maker of the note. 1 The same rule applies with equal force to foreign as well as inland bills, m and includes within itself an exception in favor of those cases in which the holder is unable to make a demand with the exercise of due diligence." The drawer of a bill is on!/ responsible after a default on the part of the acceptor. When the maker has absconded ? when the maker is a seaman on a voyage, hav- ing no domicile in the State ;i when he has no known place of residence or place of business at which the note can be presented for pay- ment ; r and when he makes the note here and remains from the State, and takes up a perma- nent residence elsewhere, before it becomes payable, the holder is not bound to follow and search him out, for the purpose of making the usual demand of payment. 8 Neither the bank- ruptcy, insolvency, nor death of the acceptor of a bill, or of the maker of a promissory note, is of itself sufficient to dispense with the ne- cessity of a regular demand of payment.* But the insolvency of the maker or acceptor is often an important circumstance, with other evidence, tending to show a waiver of demand and notice; 11 just as the absence or death of the maker or acceptor may be shown by way of dispensing with the necessity of a formal or personal demand. T Presentment for payment is not necessary in order to charge a man who guarantees the payment of a bill or note. w Where the house of the maker or acceptor is closed, it is the duty of the holder to make diligent inquiry for him. W 7 ant of demand is excused when the drawee cannot be found. x The holder should inquire for the acceptor in the neighborhood in order to excuse present- ments If the drawee be dead, presentment must be made to his personal representatives ; and if he have none, then at his house. 1 The death of a maker of a note and the insolvency of his estate, do not dispense with the necessity of demand and notice in order to charge an in- dorser." If the holder die, presentment should be made by his personal representatives. In- evitable accident, superior force, or a contagious disease that prevails so as to interrupt all busi- m-i Strange, n-2 Burr. 669. 0-2 Johns. Cas. 75. pj 1 Ld. Raym. 443, 742 ; 4 Mass. 53 : i Watts. & S. 126; 2 Sneed, 425, 555. q-4 Leigh. 114. 1-7 N. H. 290 ; 3 Greenl. 82 ; 4 Mass. 53 ; 4 S. & R. 480. s-q Wheat. 588 ; 14 Johns. 114; 4 M'Cord, 503 ; 2 Watts &. S. 401 ; 6 Met. 200; 3 Ohio, 307: 14 Martin, 511 ; 16 Maine, 41 ; 3 Denio, 151. i-3 M'Cord, 394; i S. & R. 334; 16 Id. 157; 2 Marsh. 255; i M'Cord, 339; 3^.195; i Nott & M'Cord, 438; 23 Maine, 280; 13 N. H. 415; 26 Me. 271 ; 5 N. H. 378 ; 3 Bibb, 102 ; 6 B. & C. 373; u East. 114 ; 2 H. Bl. 609 ; 3 C. & P. 244. n-io Wend. 504; 5 N. H. 378 ; i Johns. Cas. 99. v-i M'Cord, 339. W-s M. & G. 559 ; 13 M. & W. 453; i Kas. 488. x-a Caines, 121 ; 3 M'Cord, 394 ; i Gray, 175. y-7 How. (Miss.) 294. -Chitty, 357. a-i Bailey, 482 ; 16 S. ft R. 159. 166 BILLS, BONDS, AND NOTES. ness, will excuse a delay to present for payment so long as the preventing cause continues. 11 MODE OF. The demand may be made upon the maker or acceptor personally, but must be made at a reasonable time and place. A demand in the street is not sufficient, unless the party on whom it is made declines wholly to pay, or offers something which is not a pay- ment, and does not object to the place on the ground that he is not there ready to pay. The presumption always is, that the maker or accep- tor is prepared to pay at his residence or place of business." 1 And if the notary meets him in ilhe street and presents the bill for payment, and he offers to pay at his place of business, or at his residence, the notary is bound to give him an opportunity to do so. 8 So, where the drawees of a bill of exchange absent themselves from their place of business and make no pro- vision for its payment, a presentment there to a clerk or book-keeper is a sufficient presentment to charge the drawer and indorsers. f The bill or note should be actually presented for pay- ment. It should be produced ,s for the acceptor has a right to see the bill before he determines whether he will pay it or not, and if he pays it he has a right to have it delivered to him as a voucher in his settlement with the drawer. 11 And for the same reason the maker of a pro- missory note is entitled to have it surrendered on payment. A demand made by a person who has not ihe bill or note in his possession is insufficient. 1 So, a request by letter through the post-office.J A notary or agent for collec- tion cannot safely surrender the note or draft on receiving a check for the amount ; and if he does so, should ascertain promptly whether the check will be honored, so that in case it is not he may, nevertheless, protest the note or draft for non-payment, and give regular notice of its dishonor to the parties to be charged thereon. Receiving a check on a bank in payment of a draft or note would not extinguish the latter in the absence of any intention to give the maker or acceptor a further credit, k but the surrender of the note or bill would embarrass the holder in his attempt to recover the instrument, 1 and a delay to protest the same for non-payment on the day it became payable would discharge the drawer and indorsers. m TIME OF. For the purpose of charging the drawer and indorser, bills and notes should be presented and payment thereof demanded on the very day they become payable, and that is rendered necessary by the tenns of the in- strument as modified by the law or custom of merchants. The time can neither be hastened nor delayed a single day. To determine with accuracy the time when a bill or note becomes payable, it is necessary to ascertain the legal principles upon which time is computed. On b-i Johns. Cas. i ; Story Bills, % 308, 309 ; z Wend. 488; 22 Conn. 213; i R. 1.401. C-n Penn. St. 456. d- 18 Ala. (N. S.) 42. e-n Penn. St. 456 : 9 Wheat. 598 ; 2 Martin N 8.511; 4 Id. 186; iS. (3.367. i Pick. 413. f- 18 Ala. (N. S.)42 ; 12 Ind. 223. g -4 Miss. 52. 11-7 Barb. 143. i-4 Howard ,262. J-3 Whart. 116 ; 9 Wheat. 598. k-4 Johns. 296 .- 5 Id. 68 ; 5 Wend. 490 ; 5 Seld. 463 ; 34 checks, notes, and drafts payable on ordinarily no question can arise ; they arc pay- able on demand, strictly according to the term; of the instrument.? But when a bank check is post dated on a Sunday, or a note or other con- tract not entitled to days of grace falls due on Sunday, that day is excluded from the calcula- tion and considered as stricken from the cal- endar ;- and the party bound must make his payment or perform his engagement on the Saturday preceding. The period of a year is a determinate space of time, consisting of three hundred and sixty-five days ; the added day of bissextile or leap year and the day immediately preceding being counted together as one day. The word " month " means a calendar month, unless otherwise expressed. r In computing the time when bills and notes payable a certain number of days, months, or years after date, become due, the rule is to exclude the day of the date from the calculation, and include the day of payment, assuming that no days of grace are allowed ; and if entitled to days of grace, these are to be added in each case to the time the note was to run.* So, when a bill is drawn payable ten days after sight, the day on which it is accepted is excluded from the computation, and, adding the usual days of grace, payment thereof may be demanded on the thirteenth day after the acceptance." Where a note is payable a certain number of days from the day of the date, the day of the date is to be excluded from the computation. And when a bill is drawn payable so many months after date or sight, the computation is made by the calendar, and, without counting the days of grace, the bill will become due on the date of the month corresponding with the day of the date or ac- ceptance ; that is, if the bill be dated or accepted on the tenth of the month, it will mature or become due on the tenth. Thus, if dated or accepted on the loth of February, payable two months thereafter, it will become due on the loth of April, or on the I3th, adding days of grace. T But when a bill is drawn payable one month after date, the computation is not carried into the third month. Thus, a bill dated on the 3oth or 3ist of January, pay- able one month after date, expires on the last day of February, whether it has twenty-eight or twenty-nine days in it. So, if dated on the agth, 3Oth, or 3151 day of August, and payable six months after date, it will fall due on the last of February, and including the days of grace, on the 3d of March.* The computation of bills or notes drawn payable one or more months from date, is made according to the Gregorian calendar, that is to say, from the day of the month it bears date to the corre- sponding day of the month of its maturity, Barb. 323 ; i Kern. 203. 1-2 Hill, 482 ; 7 Barb. 143. 111-3 Seld. 459; 8 Barb. 496; nN.Y. 203. 0-7 Gill and Johns. 78 : 6 Met 13. p-35 Wend. 673 : 9 B & C. 409 : 20 Wend. 205; 2 Conn. 69: 10 Ohio, 426; i Met. 47 ; i G. Greene, 552. Q-2 Conn. 69 ; 20 Wend: 205. r-Id. s-Ld. Raym. 280; 6 T. R. 212 : Chitty Bills, 370. t-2 Vt 129. u-8 Mass. 153. v-i7 Mass. 94; a Vt. 129. w-> Rob. (La.) 129. BILLS, BONDS, AND NOTES. 167 without any attention to long or short months. For instance, a note drawn on the 28th, agth, 3Oth, or 3 1st of January, and due a month from date, will be due on the 28th of February, if the year be not bissextile, because the month of February has no other corresponding day. Those drawn on the 28th or 2gth of February, and due one month from date, will be due on the 28th or 2Qth of March, because the corre- sponding days are found in the month of March. A bill drawn on the 3ist of March, and due *>ie month from date, will be due on the 3Oth 6f April ; and, on the other hand, one drawn on the 3Oth of April will be payable on the 3l rule. 1 Parties to a note or bill may, if : iey choose, draw the instrument without grace; and if the intention appear on the face of the bill not to allow any days of grace, it will be- come due and payable like any other contract. But a note payable on a particular day, with- out defalcation, is entitled to the usual days of grace } and when days of grace are allowed, the indorser has a right to insist upon them to the same extent as the maker. k As the drawer of a bill, for many purposes, stands in the atti- tude of a first indorser, he also has a right to claim the usual days of grace. In order to charge him, the presentment for payment must be made on the third clay of grace. 1 WHOM BY. Bills and notes should be presented for payment by the holder, or by his authorized agent, and a person to whom a note or bill is indorsed for collection is to be re- garded as a holder for the purpose of making a demand and giving notice. But an authority to demand payment need not be in writing, 1 " and need not be given in express terms. 1 " If the notary or agent have the paper in his pos- session, ready to be delivered up, his right to demand and receive payment will be implied." A mere stranger cannot charge the parties by giving them notice of dishonor, but a party in possession of the paper, though it comes into his hands by accident, as by death of an agent, may and ought to present it for payment, and give the usual notice of refusal.? And when a negotiable note or bill comes into the hands of any person under a blank indorsement, prima facie he is the holder and entitled to demand and recover the amount due thereon.i So when the instrument is drawn payable to bearer." Where the holder dies before the note or bill becomes due, it should be presented for pay- ment by his legal representatives." WHERE AND TO WHOM. The demand of payment is not a mere form ; it is an act necessary to be performed by the holder in order to charge the drawer and indorsers; and accordingly, in an action against either of these parties the plaintiff must allege a presentment to the maker or acceptor for payment.* But it is not necessary for him to prove, in support of the averment, that the paper was presented tc the maker or acceptor personally." Present- ment to his bookkeeper, while he is absent, v. sufficient/ It is sufficient if shown to have been presented at his house or place of busi- ness." A note drawn or bill accepted without specifying the place of payment should be pre- La. 435. k-i6Me.4i. I-i Blackf. 81. m-i8 Johns. 220 ; i Pick. 401. m-Id. ; 17 Mass. 95; 7 Id. 486 ; 9 Id. 423. n -2 Harrison, 487 : 9 Mass. 423 ; 7^.486; 17 Id. 95 ; i Pick. 401 ; 18 Johns. 220. 0-9 Barn. & Cress.; 3 Wend. 179. p-Chitty Bills, 365. q-7 Cowen, 174. r-i4 Pick. 172. s-Byles Bills, 159. t-3 Leigh. 197; 7 Wend. 460; 2 Show. 180; 7 East. 231. n-5 Esj). 265 V-ia Ind. 223. w-3 Denio, 145 ; 8 Hijl, 635; a San**' 166; 15 N. Y. 575, 1 68 BILLS, BONDS, AND NOTES. sented fof payment to the maker or acceptor at his residence or place of business. 1 If made payable at a place named, it is essential to show, in an action against a drawer or indorser, a presentment at the place appointed.' A note made payable at a particular bank (or a par- ticular place) 1 is sufficiently demanded if left there for collection on the day it becomes due.* The instrument being made payable at a speci- fied place, it is immaterial where the maker or acceptor resides ; and it is sufficient if the pre- sentment be made at the place so named or otherwise agreed upon between the parties. b But if a note or bill is drawn payable at a bank, and be not left or presented there for payment at its maturity, the drawer and indorser are prima facie discharged. The note or bill being in the bank ready to be surrendered upon payment dispenses with the necessity of making a formal demand." 1 If a note be made or a bill be accepted by several persons who are not partners, a demand of payment must be made on each, as in other cases, personally or at his dwelling-house or place of business. 8 If one of them dies before the day of payment ar- rives, the demand must be made upon his legal representatives.' But where a firm accepts a bill, and one of the partners dies before it be- comes due, the presentment for payment should be made to the survivor, on whom, in the first instance, the liability of the firm devolves.* NON-PAYMENT. The contract of the drawer of a bill of exchange and indorser, whether of a negotiable note, bill, or check, is conditional ; and one of the conditions upon which it de- pends is due notice of non-acceptance or non- payment^ If the holder fail to give the notice of dishonor required by law, the general rule is that the drawer and indorsers are discharged from their respective liabilities. 1 If the bill be presented in the first place by the holder, and payment refused, it should thereupon be placed in the hands of a notary ,J whose duty it is to present it again to the drawee and demand payment ; and in case he again refuses to pay, the notary makes a minute of the refusal, of the reason assigned therefor, and of the time, add- ing his initials. From this minute he afterward draws up the protest, which is a formal decla- ration of presentment and refusal to pay, in the usual form, stating the facts according to his minute. k A protest on a foreign bill is a part of die custom, and is said to be incident to the constitution of the bill. 1 It should be made by X-i6 La. 461; 14 Johns. 114; i Comst. 321. y-s Denio, 329 ; 19 Johns. 391 ; 18 Id. 315 ; 3 Id. 207 ; 8 Bing. 214; i M . & 0.1017; 5 Id. 340; 4 Id. 7; i Moore & Scott, 387. Z-I3 Mass. 558. a-7 Wend. 160 ; 17 Johns. 148; 15 Me. 67: i Stark. 475. b-io N. H. 526; 14 La. 373 ; 16 Me. 41 ; n Wheat. 171 ; 2 Peters, 543 ; 5 How. 69 ; 12 Mass. 172. C-i8 Pick. 63. d-sDenio, 85 ; 2 Peters, 543 ; 6 Mass. 524 ; 3 Greenl. 147; 9 Porter, 186. e-8 Met. 504. f-s Hill, 234; i Conn 367. gr-2 Hill, 635. li-i Comst. 413, and cases cited, i-2 T. R. 713; 5 Id. 239; 3 Wend. 486; 17 Id. 94: 4 Hill, 263. .|- A no- tary public is an officer known to the law of nations, and recognized by the law merchant, and whose certificate, under seal of office, is evidence of protest in a foreign State without any auxiliary support, and is so received in H courts, according to the usage and custom of mer- a notary public, or, if there be no such notary in or near the place where the bill is payable, by any inhabitant in the presence of two witnesses." Bills of exchange drawn in one country on an- other, or in one State on another, are foreign bills. n The States of the Union are not foreign to each other in the same sense as are separate and independent nations, but they are so far foreign to each other that the convenience of trade and commerce requires drafts drawn in one State on another to be considered as for- eign bills. So far as the relations of business are concerned, no distinction can be reason- ably made between bills drawn in England on France, or in France on Spain, and bills drawn in Ohio on New York, or in Iowa on Louisiana. The demand of payment from the maker or drawee on the last day of grace, and notice of non-payment thereof to the drawer or indorser, within a reasonable time thereafter, is due dili- gence concerning the same, unless the indorse- ment shall express other conditions. And such demand of payment and protest must be made by the notary in person ; he cannot delegata his official authority. P The protest should be made as of the day on which the bill or note becomes payable that is, on the third or last day of grace ; though it need not be drawn up and completed in form until afterward.* It should bear the date or show that the protest was made on that day. r With exceptions here- inafter mentioned, notice must be given of the non-payment of every foreign and inland bill, promissory note, and check, in order to charge the drawer and indorsers under the law mer- chant. No precise formula of words is neces- sary to be used in giving the notice ; it is suffi- cient if the language used is such as in express terms, or by necessary implication, conveys no- tice to the drawer or indorsers of the identity of the note or bill, and that its payment, upon due presentment, has been neglected or refused by the maker or acceptor.' And it is immate- rial whether the notice be verbal or in writing.' An immaterial variance between the description contained in the notice and the bill or note re- ferred to will not vitiate it. To render the variance fatal it must be such that, under the circumstances of the case, the notice conveys no sufficient knowledge to the indorsers of the identity of the particular note or bill which has been dishonored." Notice of the dishonor chants. 15 Wend. 527 : 7 Porter (Ala.) 529; i Brev. 428; 2 Bay (S. C.) 376; i Monr. 91. Il-Chitty Bills, 457. A protest is, in form, a solemn declaration, written by the notary under a fair copy of the bill, stating that payment or acceptance has been demanded and refused,; the reason, if any, assigned, and that the bill is therefore protested, Byles Bills, 202. 1-2 Ld. Raym. 993 : Chitty Bills, 455. m-i Monr. 91 ; 3 Wend. 173. n-6 B. Mon. 60; 4 Id. 600; 3 Hill, 53; 4Ga. 101 O-i Doug. (Mich.) 455; 7 Humph. (Tenn.) 548. p-s Duer, 462 ; Chitty Bills, 458 : 3 Hill, 55. 59. q-3 Wend. 456; 2 Litt. 388, 207: 4 J. J. Marsh, 332 ; 2 Hill, 635. r^T.R.iyo. S-i Comst. 413; 4 B. & C. 339; 2 Johns. Cas. 337; q Wend. 279; 9 Peters, 33: n Wheat. 431 : 23\vena 620; 14 Conn. 363; 10 Shep. 392. t-4 Wend. 566; 8 Mo. 336 ; 8 C. & P. 356. n-i Comst. 417 ; 5 Scld. 389; 3 Bosw. 456. BILLS, BONDS, AND NOTES. 169 of a bill or note by non-payment " implies that the holder means to insist on the liability of the person notified, and does not intend to give credit to the acceptor or maker, and is universally understood to be equivalent to a demand of payment." If this is not the lan- guaga of the transaction, why is the notice given ? T The notice advertises to the indorser that the holder looks to him for payment." He can understand the notice in no other way, for it necessarily implies that the party giving it intends to insist upon his right of recourse. 15 The notice need not state who is owner of the note or bill, or at whose request it is given/ nor the day when the note was protested for non-payment, or the place where it was payable. For a protest is a declaration in writing, made by a public officer, under his oath of office, that the bill or note to which it relates was, on the day it became due, duly presented for payment, and that payment was refused; and a notice of such a protest is not merely a notice that this declaration was made, but that the facts so de- clared had really occurred. 1 The important thing is for him to know in due time that the paper has been dishonored, that he may take prompt measures for his own security.' It is not necessary that a copy of the protest should accompany notice of the dishonor of a foreign bill. b It is sufficient to inform the drawer or indorser that the bill has been protested for non-payment. But the protest must be produced on the trial, d for that is the indispensable evidence that the bill has been dishonored. A notarial protest is evidence of a demand and refusal to pay a bond, promissory note, or bill of exchange, at the time and in the manner stated in such protest, until the contrary is shown. When the residence of the parties is known to the notary, it is his duty to give or send the notices to such parties as are intended to be made liable. When the residence of such par- ties is in the same city or town in which the protest is made, and the residence of such party is known to the notary, there should be a no- tice in person delivered by the notary, or left at the dwelling or business house of the party sought to be charged on the day of the dis- honor of the paper, or before the expiration of the business hours of the succeeding clay. Where the residence of the parties sought to be made liable is unknown to the notary, it is his duty to forward the notices to the holder of the paper by the first mail after the protest, or on the day succeeding it. e Where the party entitled to notice resides in one place, transacts business in another, and V-3 Conn. 516. w-2 Q. B. 419, S. C. ; u L. I. (X. S.)Q. B. 224; 18 L. J. (N. S.) 125. x-2 Hill, 593: 2 Peters, 543; n M. & W. 372; 17 Me. 360. y- 26 Me. 45 ; i Pick. 401. The notice does not usually state the name of the holder, 5 Sand. 330 ; 18 Barb. 188. B-S Sand. 330, S. C. ; 5 Seld. 279 : 18 Barb. 188, S. C. : 2 Kern. 552. a-23Me. 392; isM.&W. 231. b-4 A. & E 870; 6 N. & M. 372. c-Id. 15 : Wend. 527; 10 Mass, i ; 4 Mason, 336 ; i Doig. (Mich.) 455 ; a Id. 425. receives letters in each, and notice is to be given by mail from a third place, it may be directed either to his place of residence or business/ But the holder is bound to adopt that mode of service which is the most certain to bring the notice home to the indorser.* Where the residence of the drawer or indorser is known, and the notice may be transmitted by mail, the service is completed by inclosing the notice in a letter or envelope and depositing the same in the post-office, properly addressed and prepaid. 11 Where the law permits service by mail, the indorser takes the risk of miscar- riage and of all accidents which may prevent the clue transmission and delivery of the notice. 1 If there be no mail, and no direct and regular communication, the notice should be sent by the safest and most expeditious conveyance.* In any case, the holder is at liberty to send the notice by a private conveyance if he chooses to do so. k Where the service of notice is made by mail, the holder must take care that the let- ter is accurately directed ; if a delay occurs through his neglect in this particular, it will discharge the party entitled to notice. If the drawer or indorser designate the place where the notice is to be sent, by writing it under his name, the notice should be sent to the place specified. 1 When the holder does not know and cannot, on diligent inquiry, ascertain the drawer or indorser's residence or place of business, reasonable and due diligence is tan- tamount to actual notice. 1 * If a notary inquire of persons who, from their connection with the transaction, are likely to know the residence of the indorser, and are not interested to mis- lead the notary, and he acts on the information thus obtained, it is due diligence on his part. The loss of a bill is no excuse for the absence of protest. NOTICE OF SERVICE, BY WHOM. No- tice from a mere stranger is not sufficient to charge the drawer or indorser.P The notice required by law is something more than a mere knowledge of dishonor, communicated to the drawer or indorser; it is an act to be performed by the holder or his agent, or by some person who is a party to the bill or note, or who would on the same being returned to him, and after paying it, be entitled to call for payment or re- imbursement.i It is sufficient when it comes from the holder, to charge all the parties. Be- cause he has a right to look to them all for payment, provided he gives to the drawer and indorsers reasonable notice of his intention to do so. And a notice from the holder to all the parties inures to the benefit of each party who stands behind him on the paper ; thus, if the d-io Mass, i: 15 Wend. 527. e-g Bush. 380. f-4 Wend. 328 ; 3 Seld. 481. ^-3 Kernan, 549. h-i Peters, 578; 3 Kernan, 555; 3 Esp. 54; 2 H. Bl. 509; 6 East- 8,9; 2 Smith, 105. i-io Peters, 572, and cases cited ; 5 Johns. 375; i Pick. 401; 8 W. & S. 14. j-6 East. 3, 10 ; Story Bills, $ 286, 287. k-Holt N. P. C. 476 ; 23 Me 287. l-io Peters, 580 ; i Sand. 93 : 25 Harb. 138. 111-10 Peters, 572. n-2 Sand. 178; per OAKBV, C. J. O-Poth, 145. p-3 1 Wend. 173; 12 Pick. 406; i T. R 167. q-Bayley Bills, 7, j 2 ; i Sand. 416 ; 15 Md. 150. BILLS, BONDS, AND NOTES. holder gives due notice to the first and second indorser of a promissory note, the second is entitled to recover thereon against the first in- dorser on showing that such notice of dishonor was duly given.* 1 If the holder gives notice to his immediate indorser, and he to his indorser, and the notice is in this manner carried back to the drawer of a bill, the holder is entitled to bring an action thereon against either of the parties that have been duly notified. 8 A party to whom a note or bill is indorsed for collection may give the notice with the same effect as if the indorsement had been made for value. 1 Even where the paper is not in form indorsed to the bank." Possession of a bill or note by a notary is evidence of a right to protest it; and when a notice signed by a notary public is duly given h is presumed to be done by the authority of the holder. T An indorser who has been discharged by the laches of the holder or subsequent par- ties cannot afterward take up the note or bill and give notice so as to charge prior parties, because all of them are discharged by the same want of diligence. w A notice given by a party in possession of the bill, as banker, attorney, or agent, is sufficient, though given in his own name.* Where the holder is not satisfied with the responsibility of his immediate indorser, his only safe course is to give notice to all the parties.? NOTICE OF SERVICE, UPON WHOM. Generally. It is necessary to give notice of non-payment to the drawer and indorsers of notes and bills in order to charge them. A person who indorses an absolute guaranty on the back of a negotiable promissory note is not entitled to notice of dishonor," and one who transfers a bill without indorsement is not, by the law merchant, entitled to notice ; as where a draft is delivered by a debtor to his creditor on account of the indebtedness.* When a note is made payable to the order of two or more persons who are not partners, and in- dorsed by them, the notice of dishonor must be given to each ; and if one of them die before the note falls due, the holder must be careful to charge the estate of the deceased indorser, or else he will not be entitled to recover thereon against the other. b In case of a partnership, notice to one is notice to all. If the indorser be dead at the maturity of the note, and there be executors or administrators at that time known to the holder, notice must be given to them. If he does not know that the deceased has left a will, or whether any administrators have yet been appointed or not, it is sufficient to address the notice to the executor or admin- istrator of the deceased, or to the indorser. d r-i8 Johns. 327. n-2 Camp. 373 ; 2 Taunt. 244. t-i Hill, 263; 2 Id. 451. u-2i N. Y. 485. v-i? Maine (5 Shep.)36o; 18 Johns. 230. w-4 Barn. & Aid. 451. X- 3 A. & E. 93 ; 3 M. & W. 109 ; 6 Shepley, 292. y- Bayley Bills, 7, ji 2. z-ig Wend. 202 ; 17 Id. 214, and cases cited. For a guaranty is an unconditional under- taking that the note or bill shall be paid, 2ojohns. 365 ; 5 Wend. 307 ; 2 Comst. 225. The guarantor stands in the light of a surety, and may be discharged by the negligence of the holder, 12 Peters, 497. a-i Wend. 219 ; 2 B. &C. 445. l>-5 Hill, 232 ; i Conn. 367. Notice to one of several joint drawers who are not partners is not notice to the Notice addressed to the legal representative of the deceased indorser to the place of his last residence, is good; 6 the holder not knowing the name of the representative/ Where a note or bill is indorsed by a firm, and one of the members dies before it falls due, it is sufficient to give notice of dishonor to the surviving part- ner. For the survivor represents the firm, and is legally answerable as such for its debts.* Though a partnership has been dissolved by mutual consent, notice to one of the members, given before the fact of dissolution has been made public, is notice to all. h For the part- nership still subsists for the purpose of winding up the business and closing the concern, and each may be understood to act as the agent of the rest until notice of dissolution has been made public. As a general rule, failure to give the drawer or indorser due notice of non-payment discharges him. The presumption of law is that he is injured by the want of notice. 1 That the drawer is deprived 6f the opportunity which he ought to have had to withdraw immediately his effects from the hands of the drawee,J and that the indorser is prevented from taking prompt measures to obtain and enforce payment of the note or bill. k And this presumption is so strong and uniform as to exclude proof that the drawer has not been injured, in all cases except those in which the evidence is offered to bring the case within one of the recognized exceptions to the general rule. 1 Exceptions. An agreement made by the drawer or indorser, before dishonor, waiving notice of non-payment, or waiving the protest of a bill or note, will render him liable thereon just the same as if due notice had been given. And any conduct on the part of the drawer or indorser calculated to or actually inducing the holder to omit serving him with notice will have the same effect." Any words by an in- dorser, waiving demand and notice before dis- honor, will render a formal demand and notice unnecessary. A stipulation by the indorser of a note to waive notice of dishonor dispenses with the necessity of giving him notice, but does not dispense with the demand itself; the two acts are perfectly distinct, and each is a condition precedent to the holder's right of re- covery. 1 " But where the indorser of a note re- quests the holders not to protest it, and waiving the necessity of protest thereof, this is a waiver of both demand and notice ; for the term pro- test, when used among men of business, in- cludes all those acts which are by law necessary to charge an indorser.i A waiver of demand 232 ; i Johns. Cas. 405 ; 2 Id. 374 ; i Wend. 148. ll-6 Lewis, 684 ; 6 Cowen, 441 ; Byles Bills, 37, 39 : 19 Ala. (N. 80717. i-Chitty Bills, 435; 2 B. & P. 280. j-i? Wend. 94. U-2 Johns. Ch. 418. 1-3 Esp. 158 ; 17 Wend. 94. ni-i Comst. 186; 20 How. 496. 11-4 Camp. 285 ; i Johns. Cas. 99 ; 8 Eng. (13 Ark'.) 401 ; 13 Wend. 504; 13 Barb. 16^. 0-32 Barb. 282; 17 Wend. 489; ao I"- 557- p-ii Wend. 629; 6 Mass. 524. <|3 Penio, i$ ; Comst. 86 ; 6 Wheat. 579. BILLS, BONDS, AND NOTES. 171 or notice made by a drawer or indorser is not a new contract it is only a waiver of one of the conditions precedent to his liability, and does not, therefore, require any consideration to support it. r A verbal or written communica- tion to the holder, dispensing with the necessity of demand and notice, will be sufficient." Where the indorser writes a waiver of demand and notice over his signature on the note, his contract becomes absolute ; he is bound to pay the note as unconditionally as if he had signed it as maker.' It puts him in the same situ- ation as if the demand had been made and notice of dishonor given in due time." A waiver of notice, made before dishonor, cannot l>e proved under an allegation of due notice ; the complaint must state facts constituting the cause of action on which the plaintiff seeks to recover. T If the indorser has taken full and ample se- curity against the liability incurred by him, he is not entitled to notice, because he cannot be prejudiced by want of notice ; w partial or doubtful security falls short of this, and leaves the reason of the rule for requiring notice in full force. 1 When a bill is accepted for the accommoda- tion of the drawer, notice is unnecessary; for it is obvious that the drawer cannot be injured by the want of notice of non-payment, or that he can suffer any legal damage in consequence of not receiving notice.^ So, when a note is made for the accommodation of an indorser who is ultimately holden to pay it ; for it is clear that he can lose nothing from the failure to receive the usual notice of dishonor. 1 But an accommodation drawer or indorser is entitled to strict notice.* As to all the other parties to the instrument, his rights and duties are the same as in the case of business paper. b A drawer is not entitled to notice where he has no funds or effects in the hands of the drawee," but to this exception there are impor- tant modifications. If the drawer has made or is making consignments to the drawee, and draws before the consignment comes to hand ; d or if the goods are in transitu, but the bill of lading is omitted to be sent to the consignee, or the goods are lost ; e or, if the drawer has any funds or property in the hands of the drawee, or there is a fluctuating balance be- tween them in the course of their transactions ; f or if there is a running account between the drawer and drawee, and the latter has been in the habit of accepting the bills of the drawer without regard to the state of their accounts ;8 or, if the drawer has a reasonable expectation that the bill will be paid, he is entitled to notice of dishonor. 11 If the drawer of a bill has no funds or assets in the hands of the drawees, or expectation of funds, or any ar- rangement or agreement with them to accept the bill, he cannot ordinarily suffer any injury for the want of notice, and he is not entitled to it. 1 The indorser's right to notice is not at all affected by the drawer's want of funds or effects in the hands of the drawee ;J unless the act of drawing be fraudulent and the indorser implicated in the fraud. k Ignorance of a party's residence will excuse delay in giving him notice, when the time is consumed in the use of diligence to acquire the necessary information. It would be very hard, when the holder of a bill does not know where the indorser is to be found, if he lost his remedy by not communicating immediate notice of dishonor of the bill. The holder must not allow himself to remain in a state of passive and contented ignorance ; but if he uses reason- able diligence to discover the residence of the indorser, notice given as soon as this is discov- ered is due notice of the dishonor of the bill, within the usage and custom of merchants ; l for exercise of reasonable and due diligence is equivalent to actual notice. The holder or indorser who acts upon credible information information on which he has a right to rely, in giving notice of dishonor, retains his right of recourse notwithstanding he may have been misled in regard to the residence of the party to be charged. Delay in giving notice may also be excused, because the day on which the holder should have given notice is a public festival, on which he is strictly forbidden by his religion to attend to any secular affairs." " The law merchant respects the religion of different people. For this reason we are not obliged to give notice of the dishonor of a bill on our Sunday," or a Jew on a day during which his religion does not permit him to attend to any sort of business. 8 Generally, the indorser of a note not negoti- able is not entitled to the usual privilege of an indorser of negotiable paper; he stands as principal and not as surety to his indorser, and has no right to insist upon a previous demand of the maker and notice of non-payment.P Where the drawer or indorser has been dis- charged by the laches of the holder, and that fact appears, there must be, in order to render him liable, clear proof that the promise was made with a full knowledge of all the facts C-i6 East. 43 ; 3 Camp. 217. f-ij East. 216, 221 ; 7 Id. 350. {-12 East. 175. h-4 M. & S. 226; 2 Camp. 503; 7 Bing. 217. i-u Humph. (Tenn.) 74; 28 Barb. 390, 392; Story Bills, \ 311. J-Peake, 202; 4 Cranch. 153. ls-4 Rand. 553. 1-Per L'd. ELLENBOROUGH, 2 Camp. 463 ; S. C. 12 East. 433 ; i B. & C. 245 : 29 Eng. L. & Eq. 604. m-3 M. & W. 166; 4 Wheat. 438; 12 East. 433; 2 Hill, 578; 3 Id. 520. Ante service of notict. 2 Sand. 178 : Id. 171, and cases cited : 3 Comst. 272 ; 4 How. 345. n-2 Camp. 602 ; Chitty Bills, 454. o-Story Bills, g 340. p-8 Wend. 403 ; Bing. N. C. 249; 2 Scott, 423; i Hodges, 324, S. C.; n Ohio, 102; 3 Clark* (Iowa) 366. BILLS, BONDS, AND NOTES. and circumstances.' A promise to pay under a misapprehension of fact is no waiver of the consequence of laches ; r nor is a promise made in ignorance of a material fact a waiver; as where the drawer or indorser promises to pay without knowledge that no notice has been sent.* If it be shown that the holder has been guilty of laches, it must also appear that the promise was made with a full knowledge of them, or it will not bind the party making it.* But if no laches are shown, a promise to pay is presumptive evidence of due notice. NOTICE OF SERVICE WHEN. Notice of dishonor cannot be given until after a demand and refusal of payment. 7 A premature notice is a nullity. It is not necessary that the party giving the notice should have, at the time, per- sonal knowledge of the dishonor. 1 * A notice given on the day the bill or note becomes due is not too soon, for, though payment may still be made within the day, non-payment on pre- sentment is a dishonor. 1 And when the third day of grace falls upon Sunday, fourth of July, twenty-fifth of December, first of January, or any day appointed by the President of the United States or the governor of this State for a public fast or thanksgiving, the presentment for payment and notice of non-payment may be made on the next preceding business day, which is in either case the last day of grace.? Where the parties reside in the same place, notice to the drawer or indorser on the day of the dishonor and after it, or in the course of the next succeeding day, is reasonable, and is in time ; r but the notice is not in time unless it be given so as to reach the party residing in the same place on the day succeeding the dishonor. If sent by post, it must be deposited in time to be delivered on that day. If by private hand, it must be served before the expiration of the day succeeding the dishonor. 1 * It is not at all material in what manner the service is made if the notice actually reaches the party in due time. That is, on the right day and within the customary hours of business, having respect to the usages of the place. d Where the parties do not reside in the same place the notice of dishonor must be put into the post-office early enough to go by the mail of the day succeeding the last day of grace, 6 unless the mail of that day is closed at an un- q-4 Humph. (Tenn.) 336. r-i T. R. 712 ; 5 Burr, 2672. 8-8 Johns. 384. t-5 Johns. 248 ; 12 Wheat. 183 ; 20 How. 495; 23 Wend. 379; 36 N. H. 540; 9 31.236; 33 Penn. St. 134; 20 111. 557; n Ohio St.; 10 Cush. 159. n-7 East. 231; 14 Mo. 59. v-2 Caines, 343; 38 Penn. St. 135. w-4 Ellis & Blackburn. 615. x-3 Camp. 193; 2 Kernan, 551 ; 5 Sand. 330; i Johns. Cas. 328; 6 Wheat. 104; 9 Barr, 178. y-i Ld. Raym. 743; Edw. Bills, Parsons Bills, z-23 Pick. 305; 2 Camp. 208; 9 East. 347; 2 B. & A. 500. a-3 C. & P. 250; i Md. 285; o East. 347; i T. R. 167; n Johns. 187. b- Holt. C. N. P. 676; 2 Taunt. 224 ; S. C. 2 Camp. 373 ; 3 Wend. 276. C-i Peters, 578; 7 Blackf. 447; 7 Ham- mond, 506 ; 8 Watts & Serg. 14. l-g Wheat. 987 ; 2 Burr, 660; 2 Hill, 635; i Md. 59; 18 Ala. 256. e-2 Wheat. 373 ; 9 Peters, 33 ; 2 Hill, 451 : 5 Cowen, 303. f-i Ohio State, 206; i Peters, 605. 618 ; 3 Pick. 180, 183; 8 Id. 51 ; 9 N. H.sso; 7 Gill. & Johns. 79 ; 18 Me. 292 ; 5 Cowen, 303 ; 3 Wend. 276 ; 4 Leigh. 37 ; 2 Marshall, 610; 5 Littell, 24; 3 Conn. 489; 7 Watts & reasonably early hour, or before early and con- venient business hours. f If there be two mails leaving on the same day, the first closing before the common hours of business, it is sufficient to transmit the notice by the second.* Indeed, the holder is not bound to send off the notice by a mail that closes before the usual hours of business begin, even if there be no second mail leaving on that day. h The holder is not bound, in any case, to send off the notice on the day of the dishonor; 1 nor is either of the indorsers bound to transmit the notice to his indorser on the day he receives it. Each party has a day for giving notice.J The result of the authorities then is, that the holder of a bill or note is bound to despatch the notice of dishonor by mail on the day after default is made in payment of it, unless the mail closes at an unreasonably early hour; that an indorser is bound to use the same diligence in sending it forward on the day after he receives it; and that neither of them is obliged by law to send it forward on the very day the bill is dishonored or the notice received. When no mail leaves on the day after notice is re- ceived, or the paper is dishonored, it is suffi- cient to put the letter in the post-office in time to go by the next mail. k For the purpose of giving notice, a bank or banker, with whom a bill is deposited for collection, is to be consid- ered as a distinct holder, and has a day to give notice to his customer ; while the customer has another day in which to give notice to the an- tecedent parties. 1 The rule is the same, though the paper be transmitted through several banks, indorsed from one to the other for collection. The holder should give notice of dishonor to all the parties to whom he intends to look for payment, 11 but it is enough for him to send or give due notice to his indorsers for the purpose of charging the party indorsing the bill over t him ; and it is the business of each indorser to take care that the party responsible to him is duly notified.? The over diligence of one will not supply the want of diligence in another.' Rea- sonable diligence in giving notice (when there is no dispute about the facts) is a question of law. r PAYMENT. APPLICATION OF. The debtor has the first right to direct the application of any payment he may make.' But to make such application Serg. 264 ; i La. 222 ; 2 Rob. 243 ; i Ala. 752 ; 18 Conn. 363 : 4 Bing. 715 ; i Bos. & P. 750 ,-5 M. & Sel. 68 ; i S. & Marsh, 261, 664; 18 Conn. 373 ; 24 Me. 458. |r-i Hill, 263. 11-24 Me. 458; i S. & Marsh. 644. 1-9 Peters, 33 ; i Hill, 263 ; Conn. 484 ; 7 Gill & Johns. 79 ; 17 Mass. 449; 9 N. H. 559; 2 Marshall, 610. J-a Maule, 68. k-i Moody & Malkin, 61 ; 24 Maine, 458. 1-5 Maule & Selw. 68; 2 Taunt. 388 ; 15 East. 290 ; i Hill, 263 ; 21 N. Y. 485, 487. 01-5 Cowen, 303 ; 2 Hill, 451 ; 3 B. & P. 590 ; 5 Mass. 167. n-3 C. & P. 250; o Peters, 33. 0-2 Wheat. 377. j>-3 Johns. Cas. 89 ; 18 Johns. 230; 2 Hill, 457. q-8 Foster, 302 ; 4 B. & Aid. 451 ; 4 Leigh. 37, 50; 5 Humph. 469; 8 Porter, 258 ; 20 Eng. L. & Eq. 220 ; 15 M. & W. 231 ; 29 Eng. L. & Eq. 504. r-2i Wend. 64.5; ii Johns. 187 ; 6 Ohio, 66 ; i Peters, 378; 2 Marsh. 616; 78. &R-323; 17 Mass. 453. 8-7 Wheat. 13: 20 Pick. 441 ; 5 Watts, 544; 2 Bailey, 617; 4 Gill & Johns. 361 ; 8 Watts & Serg. 320; 5 Iredell, 551 ; 7 Blackf. 236; i Kelly, 241 ; i Branch, 409 ; Davies, 146 ; 6 Com. 432. The rule that the debtor may apply payment as he pleases, applies only to voluntary pay- ments, 10 Pick. 129. BILLS, BONDS, AND NOTES. 173 he must give directions before or at the time of payment. 1 " If no appropriation be made by him, it then devolves upon the creditor to make it." Yet the creditor must make such an application as the debtor could not reasonably or justly object to, and such as would be most for his interest at the time.P If there are two demands and the debtor pays a sum exactly equal to one of them, it will be considered as having been paid in discharge of that.' If one be due while the other is not, the payment applies to the former. 1 The law will make the application first to the interest and then to the principal." To the debt which is prior in date.* To the debt that is less secured." If applica- tion be directed by neither, then the law will make the application according to equity. T A debtor or creditor cannot appropriate a payment in such a manner as to affect the relative lia- bilities or rights of sureties without their con- sent. 1 ' MADE How. Payment of negotiable notes and bills must always be made in money.* If drawn payable in anything else they are not negotiable, and are not governed by the rules applicable to negotiable paper. For in- stance, a note made by a fanner, payable in farm produce, without specifying any time or place of payment, is payable on demand made at the farm of the debtor; and in an action against the maker, it is necessary to show a re- fusal to pay on such demand.? The same principle applies to where a merchant gives his note payable in goods, or a mechanic gives his due bill payable in work ; the goods must be demanded of the merchant at his store, and the work must be required of the mechanic at his shop." There is no absolute safety short of a payment of money. If the holder takes pay- ment in bank bills, it may turn out that the bank has failed; and if he takes a check it may be dishonored. The custom of merchants requires that the holder of a bill shall present the instrument, at its maturity, to the acceptor, demand payment, and upon receipt of the money deliver up the bill." If he departs from this custom, and especially if he takes a draft on a banker, or any other security, whereby the time of payment is extended, though only till the next morning, the drawer and in- dorsers will be discharged. But, if the time of payment is not extended, and the holder re- tains possession of the bill, so that he is ready to surrender it on payment to the drawer or in- m-i Overton, 488 ; 4 Iredell Eq. 42. n-2 Harr. & Gill. 159; 4 Cranch. 316; i Mo. 315; 5 Day, 166 ; i Pick. 332 ; 10 Id. 129; i Scam. 196; 6 Watts & Serg. 9 ; 20 Pick. 339 ; 23 Id. 473 ; 7 How. 681 ; 5 Denio, 470; 14 N. H. 352. o-iq Vt. 26; i Sanf. S. C. 416; 128. & Marsh. 631; 21 Vt. 456; I 4 N.H. 431 ; p-2 N. H. 193 ; 2 Harr. 387 ; 3 Comst. 494. a-2 Met. 238 ; 2 Eng. C. L. R. 267. fo-3 Johns. 434 ; 8 Id. 436 ; 14 Id. 87. c-Bayley Bill*. Ch. 8, g i ; 13 Johns. 322. d-4 Miller (La.) 530. person." With this exception to the general rule, there is no reason why an officious pay- ment and satisfaction of a bill or note should not be held to cancel the security. 4 WHO TO. Payment should be made to the holder and real proprietor of the bill, or to some person authorized by him to receive the same ; e it should be made to the party having the title and possession of the instrument.' If drawn payable to bearer, or indorsed in blank so that the title passes by mere delivery, pos- session alone is presumptive evidence of title and sufficient authority to demand and re- ceive payment.* The maker or acceptor will be protected in paying a note or bill to the party presenting it under such circumstances as would give a right of action thereon to a purchaser in good faith for value. h And he is bound to pay a bona fide holder who has parted with value for the same before it became due, notwith- standing it may have been previously lost or stolen. 1 But having notice that the bill or note has been lost by the real proprietor or stolen from him, he should not pay the same to the finder, or other person, until the latter estab- lishes a clear title or gives an adequate indem- nity against the claim of any other person.^ With notice of the loss, the maker or acceptor pays at his peril ; for if it turns out that the party in possession was not the real owner of the bill nor entitled to recover thereon as a bona _fide holder, he will be obliged to pay it over again to the real proprietor.* In deter- mining the question of title, where a note or bill is presented for payment, the maker or ac? ceptor must ascertain whether the indorsements are properly made, so as to vest the title in the person demanding payment. 1 The maker must at all events see that he pays to the order of the payee, for if his indorsement is a forgery, or spurious, it is a payment by mistake." 1 If the indorsements on the note or bill be in blank, it is sufficient to make certain that the payee's in- dorsement is genuine ; but if the successive in- dorsements be special, the holder cannot derive title to the paper through a forged indorsement. Thus, where the payee of a note drawn payable to him, or order, indorses it specially payable to A. or order, and he again indorses it specially payable to B. or order, the title to the note is in B., and no other person has the right to de- mand payment of it except as his agent." Pos, session of a note transferable by delivery only, or indorsed in blank, is prima facie proof of title. The case is different where the payee indorses it in blank : here, though there are sub- sequent special indorsements on the note, the f-i Hill, 287; i Kern. 404; 205; 20 Id. 138 : 13 Ind. 516. e-n East. 40; Dougl. 623. iDuer,434; 17 N. Y. 205; 20 Id. 138 : 13 Ind. 516. g- 18 Johns. 230. h-2 Johns. 50 ; i Denio, 583 ;_ 5 Wend. 600 : 8 Id. 478. 1-n Johns. 128 ; i Hall, 562 ; 2 Pick. 545 ; 4 Watts & Serg. 545 ; Burr, 452, 1516. J-I3 East. 135 ; Rose, 99: gB.&C. 208. U-4 Taunt. 799 ; aC.ftP.B6i; 4M. &W. 16. l-i Hill, 287. m-iKernan,402; 12 N. Y. 205; 20 Id. 138. 11-15 Johns. 247 ; Story Notes, 383.- 2 Camp. N. P. 214, .; 6 Esp. 57; Chitty Bills, 231, 268 ; 3 Cowen, 303 : 8 Conn. 431 ; 3 Wend. 344. O-^ Mass. 451 ; n Id. 288 ; 16 Pick. 135; 6 Blackf; 485 ; if Johns. 104 ; 18 Eng. L. & Eq. 514. BILLS, BONDS, AND NOTES. 175 holder is at liberty to deduce his title through the first indorser ;P and hence the maker is pro- tected in paying the note to the party in posses- sion, just the same as if it had been originally made payable to bearer. If the first indorse- ment be special and the second in blank, the subsequent holder takes title through both of these indorsements,' and the maker should see that both of them are genuine when he pays the note. Where the person receiving payment on a foiged bill has no recourse to any other party thereon, or has the same right of action, not- withstanding the want of notice, the question of laches does not arise. Thus, where the drawee accepts and pays a bill payable to the order of a fictitious person, or to the order of a real person who never had any interest in the bill, and whose name has been forged upon it by the drawer, the bill being negotiated in that condition, and none of the parties but the drawer having any knowledge of the forgery, the drawee or acceptor cannot recover back the money. The title to the bill passes in the same manner as if it had been drawn payable to a fictitious person, or to bearer ; and inasmuch as the ac- ceptor has no recourse to the prior parties, he has no right to recover back the money so paid.' Where a bank pays a forged check, or a check that has upon it the genuine signature of its customer, but has been fraudulently altered to a larger sum, it cannot debit the drawer with the sum so paid without authority.* But if a bill or check be drawn in so careless and im- proper a manner as thereby to enable a third person to practise a fraud, the customer and not the bank must bear the loss.' A draft that has not been accepted and a bank check should not be paid after notice from the drawer counter- manding the authority, nor after the death of the drawer, which is a revocation of the authority. 11 The person transferring a negotiable note or draft, whether by indorsement or delivery, im- pliedly guarantees the title to it, unless the transfer be made under such circumstances as to show clearly that the purchaser took it at his own risk. T And hence the person who obtains money or goods on the instrument, or has it discounted, is bound to refund what he has re- ceived, in case it proves to be a forgery. w But if the transfer is made without indorsement, the person transferring it is liable only to his immediate assignee he is not a party to and is not liable on the bill.* A party paying money under a mistake of law cannot recover it back ; but if he pay money under a mistake of the real facts (and has not omitted to avail himself of the means of knowl- edge in his power), he may recover back such money J p-i Denio, 608 ; 4 Johns. 27. q-i Sand. 190 ; 6 Esp. 57.* r-i Comst. 113 ; Chitty Bills, 431 ; i6N. Y. 336; 90 Eng. C. L. 519. s-s Barn. & C. 750 ; 2 Camp. 485 ; i Kernan, 404. t-4 Bing. 228 : 6 C. & P. 18. u-Chitty Bills, 429, 430 ; 2 Ves. Jun. 118; 24 Wend. 240. v-5 Taunt. 488 ; 5 Id. 495 ; 6 Mass. 321 ; 7 Yerg. 310 ; 2 Johns. 455 ; 5 Conn. 71; 7T. R.66; 26. & P. 518. w-iC. & P. 197; 15 Johns. 240. x-Ld. Raym. 928: 15 East. 7. y-6 B. & C. 671; 16 N. Y. 336; 34 Barb. 323; 3 Moore, 635; 12 RECEIPTS. Where a part payment is made on a negotiable note or bill, the party paying should have a receipt indorsed upon the instrument; otherwise, he may be compelled to pay it over again to a bona fide holder." But the maker of a note or due bill not negotiable, may safely pay money on it to the payee, where he has no notice or reason to suppose that it has been assigned." When paid in full it should be surrendered or cancelled, so that the maker may not afterward be compelled to prove that it has been satisfied. 6 The acceptor of a bill on being called on for payment is entitled to have the bill surrendered to him as a voucher, and the maker of a negotiable note stands in the same relation ; neither of them can be com- pelled to pay, unless the holder produces and offers to deliver up the instrument, or tenders sufficient indemnity, where it has been lost. And the indorser paying a note has the right to demand that it be surrendered to him. d A receipt not specifying by whom the payment was made, indorsed on the back of a bill, is presumptive evidence that the bill was paid by the acceptor. 8 But the signature of the person signing the receipt must be proved, and it must appear to be that of a person entitled to receive payment.' A receipt indorsed on a note may be contradicted or explained like any other re- ceipt for money paid.* The maker or acceptor of notes and drafts not negotiable, cannot refuse to pay on the ground that they are not pro- duced and ready to be surrendered. 11 The assignee of such paper takes it subject to what- ever defence the maker or acceptor may have to it, as against the payee. 1 Where the creditor accepts the note of a third person as payment, it is a good accord and satisfaction.^ RELEASE OF PRINCIPAL DEBTOR. The drawer of a bill, and each of the successive indorsers, whether of a note or bill, being charged with notice of non-payment upon a due demand made, is bound to pay the amount and take up the paper. He cannot, like a surety, require of the holder active diligence to collect the money of the party primarily liable to pay; nor does he generally enter into the contract without a full and valuable con- sideration. k By entering into a contract with the maker of a note, or acceptor of a bill, ex- tending the time of payment, the holder tacitly engages to give the same credit to all the parties who may be entitled to a remedy over against the maker or acceptor. 1 To give his contract legitimate effect is to arrest the remedies of all the parties on the bill or note, and thus convert the contract of each into a different under- taking. So when the holder enters into an East. 434. z-i Esp. 463; 2 Hill, 140; 20 N. Y. 1^8. a-9 Johns. 64; 12 Id. 343. b-io Wend. 85; 16 Id. 659. C-7 Barn. & Cress 90. d-8 Barb. 408. e-Peake's Cas. 25. f-2 Camp. 439 ; Peake, 179; i Esp. 473; 3 Id. 196; 4 Taunt. 293 ; 7 La. 82 : 4 M. & G. 804. g-3 B. & A. 313. h-io Adol. & Ellis, 616 ; 4 Bing. 273 ; 10 Johns. 104 : 3 Wend. 344 ; 12 Id. 173. 1-is Miss. 204. j-i Sand. 9 : see ACCORD ANr SATISFACTION ; CON- TRACTS. It -7 Wend. 610; 8 Id. 194; 16 Johns. 152. 1-Story Notes, 414 ; Chitty Bills, 408, 410. 176 BILLS, BONDS, AND NOTES. agreement with the maker or acceptor, founded on a good consideration, giving him time for payment, the contract operates as a release of the drawer and indorsers. m But a contract not based upon a valid consideration, does not have the effect of a release; for delay under such a contract is, in the eye of the law, merely gratuitous." A contract made with the drawer of a bill, or with the prior indorser of a note or bill, will discharge all subsequent indor- iers, but will not operate as a release of the maker or acceptor.? As between the first and sub- sequent indorsers, the former is regarded in the light of principal ; he stands behind them upon the paper, and is bound to take it up in case of the default of the maker. The contracts of the sev- eral indorsers are like so many links in a chain, and if the holder consent to dissolve the first, the chain is no longer capable of binding either of the parties. i So long as the holder makes no valid and binding agreement for delay, he is at liberty to use every endeavor to secure the payment of the bill or note ; he may receive part payment ; r he may take new securities ;" he may negotiate for delay;* he may receive and transmit propositions to the indorsers for an extended credit;" and he may voluntarily forbear to bring an action against any or all of the parties, so long as he can without com- ing into contact with the bar raised by the statute of limitations. An agreement made by the holder with the principal debtor, extending the time of payment, or even releasing him from his liability, will not discharge the drawer or indorser if he assents to the arrangement. 7 So, if the holder give time to the maker or acceptor, and the drawer or indorser afterward promises to pay, with knowledge of the fact, he is precluded from taking advantage of the indulgence so granted.* A release of a debt or liability given on a good consideration ex- tinguishes the indebtedness ; x but a release without consideration, and not under seal, is void.y A new consideration gives effect to a release not under seal. 1 Where one of the makers of a promissory note adds to his signa- ture the word "surety," the holder is bound to treat him as such, and cannot vary the terms of the contract by extending the time of pay- ment, or otherwise, so as to increase the risk of the surety without discharging him. An extension of credit to the debtor for one day discharges the surety as effectually as if made for one year.' Taking security from or giving time to one of several joint makers of a note, or acceptors of a bill, does not discharge the others. b Several sureties who successively sign a note at the request of the principal, without communication with each other, are bound, on the failure of the principal, to contribute equally ni-7 Wend. 290 ; i7ld. 501; 8 East. 576 ; 48(02.717. n-4 Bing. 717 ; 12 Wheat. 554 ; i B. & P. 652 ; 10 Johns. 180. 0-21 Wend. 108. p-7 Paige, Ch. 9. q-3 Esp. 46 : 2 B. & P. 61. r-8 East. 576 ; i Johns. Gas. 131 ; 3 M'Cord, 13; 16 Johns. 41. s-i Barn. & Cress. 14. t-2 Car. & P. 468. n-i6 East. 105. v-i7 Johns. 170; 10 Pick. 528; Id. 533; 16 Ind. 91. w-ii East. 38. x-4 B. & C. 506, 515, . y-i Cowen, 122 ; 710.224; 17 Johns. to the payment of the note. The word suret) added to the signature of a maker is evidence that he did not give the note for value received by him. d Where a bill of exchange is accepted for the accommodation of the drawer, the holder does not discharge him by giving the acceptor further time for payment ; for here the drawer is ultimately liable to pay the amount secured by the bill, and does not stand in the light of a surety." Nor will an agreement with the drawer, giving him time for payment, discharge the acceptor for his accommodation/ So, in respect to a promissoiy note, if made for the accommodation of the payee, delay granted to him will not discharge the maker.s PRACTICE. DAMAGES is the rate or per cent, paid to the holder of a bill of exchange which has been dishonored. It is the subject of distinct statute regulation in nearly every State of the Union. See GENERAL STATUTES. EVIDENCE. Generally, the pleadings show what the plaintiff must prove to maintain his action, and what the defendant must prove to establish his defence. When a single fact is put in issue, such as the making of the note, or the acceptance of the bill in suit, one party holds the affirmative and the other the negative; and the entire evidence is directed to the proof or disproof of that fact. In all actions, allega- tions of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appoint- ment or authority may be taken as true, unless the denial of the same be verified by the affi- davit of the party, his agent or attorney. 11 In an action by the payee against the maker of a negotiable note or the acceptor of a bill of exchange, it is generally enough to produce the instrument, prove the signature of the de- fendant and the amount due thereon. If the action be against several acceptors of a bill or makers of a note, the handwriting of each must be proved, unless the defendants are sued as partners, in which case it must be shown that the defendants were partners, and that the note or acceptance was made or given in the name of the firm by one of the firm. 1 If the action be against the makers of a joint and several promissory note, it is incumbent upon the plaintiff to prove that it was made by the parties described in the complaint. A note beginning " I promise to pay," and signed by two persons, is a joint and several note.J The acceptance being made after sight of a bill, admits the drawer's signature. 11 The acceptance admits also the ability of the drawer, and that the draft was properly drawn ; so that, though drawn by an agent, it is not necessary, in an action against the acceptor, to show the agent's 175. z-i4 Wend. 116. R-3 Denio, 512. fo-2 B. &*Ald. 210: 6 Price, in. c-2 Seld. 33. l-i Denio, 116; 10 Barb. 512; 2 Comst. 406; 13 Wend. 400. e-3 Camp 281 ; 22 111. 330. f-3 Camp. 362. g-3 Barn. & Ad. 41. h-See titles ACTIONS, PLEADING. 1-7 Wend. 172. J-i Camp. 403; S. C. 10 East. 264; Peake R. 130; Holt, N. P. C. 474. k.-3 Comst. 230, and cases cited; i Strange, 648. BILLS, BONDS, ANt> NOtES. 177 authority;* and the production of the bill by the payee is sufficient proof of his title to it. x In an action by an indorsee against the acceptor, the plaintiff must prove his acceptance and the payee's indorsement ;' and if the indorsement be special, it must appear to have been made to the plaintiff, or he must show a subsequent indorsement to himself. Bills and notes made payable to bearer circulate and are considered as money ; and, as the title passes by delivery, possession is evidence of the holder's property in them.' And there is no legal difference be- tween a bill or note payable to bearer and one payable to a particular person or bearer; in either case the holder is prima facie the law- ful bearer, to whom the same is payable.' The same presumption is raised in favor of the holder of a note or bill drawn payable to order after the same has been indorsed in blank. b On a note for value received, made payable to one or other of two persons, action should be brought in the name of both, and recovery may be had on proof of the execution of the note. c In an action against an indorser of a bill or note, the plaintiff need not prove the signature of the maker, drawer, or prior indorsers ; nor can the defendant impeach the genuineness of the bill or note, for his indorsement admits the ability and signature of every antecedent party. 3 There is a warranty implied in the transfer of every negotiable instrument that it is not forged. 8 In an action by an indorsee against his imme- diate indorser, the latter is estopped from deny- ing the drawing and indorsement of the bill to himself.' The plaintiff need not prove, in an action upon negotiable paper, that the same was made, accepted, or indorsed for an adequate consideration ; the presumption being that the contract of the several parties to the instrument was entered into for value received, and that the holder acquired it in the usual course of business for value. But this presumption may be overcome. For instance, if it be shown that the bill or note in suit has been lost, or has been stolen from the owner, the plaintiff must show himself to be a bona fide holder for value. This he may do by showing that he took the paper fairly, in the usual course of business, and gave a valuable consideration for it.* So, if it be shown that the bill or note was obtained by fraud, duress, without consid- eration, on an illegal consideration, or for a par- ticular purpose and dishonestly used for another. 11 As to what defence is allowed if the instru- ment is negotiated when overdue, see ante, INDORSEMENT. And payment before due may be given in evidence against indorsee. In actions against the drawer of bills and checks, and against the indorser of negotiable paper, the plaintiff must prove as well as allege that the paper was duly presented for acceptance W-i Camp. N. P. C. 82. x-i Denio, 367; 18 Johns. 230; i Sand. 37. V 2 Hill, 287 ; 3 Comst. 230. Z-4A. & E. 870; 5 Pick. 526. a-i7 Wend. 214; 28 Barb. 44. b-Bay!ey Bills, 5, i. c-i B. & A. 417 ; 4 Wend. 575. il-Bayley Bills, n. e-is Johns. 240; 2 Camp. 182; i Salk. 127; i Ld. Raym. 443. f-88 Eng. C. L. 266; 15 N. Y. 575. g-i Burr. 452 ; 3 Id. 1226 ; Dough. 633. or for payment and dishonored, and that due notice thereof was given to the defendant. When an action against the drawer or indorser is brought upon a bill that has been accepted, payable at a particular bank or place, the plaintiff must prove a presentment for payment at the place designated in the acceptance, 1 and within the usual hours of business.J Where a bill is drawn payable a certain number of days after sight, or after demand, the plaintiff must prove a presentment to the drawee for accept- ance as a means of fixing the time of payment ; k but this is not necessary where a bill is drawn payable so many days or months after date. In an action against a drawer or indorser of a foreign bill, the plaintiff must prove, beside the presentment and notice of dishonor, a pro- test for non-acceptance or non-payment. 1 The protest, when made by a notary in a foreign State, and attested under the seal of his office proves itself, and is evidence of presentmei r. and refusal." 1 It is well settled that bills (if exchange drawn in one State of the Union and payable in another are foreign bills, within the meaning of the rule which makes the notarial protest prima facie evidence of the present- ment and dishonor of such bills. n LIMITATION. See General Statutes. PLEADING." Forms of pleading are much changed. The parties are required to plead respecting the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence in the manner prescribed by the law ; and the rules by which the sufficiency of the pleadings is to be determined are those established by the law. The action must be brought in the name of the lawful holder and owner of the paper, and the complaint must contain a statement of all the facts necessary to be proved on the trial, in order to entitle the plaintiff to recover thereon against the defend- ant.? An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly author- ized by statute, may bring an action without join- ing with him the person for whose benefit the action is prosecuted ; but generally every action must be prosecuted in the name of the real party in interest. The phrase, " a trustee of an express trust," includes a person with whom or in whose name a contract is made for the benefit of another. Mercantile agents and fac- tors, who, according to the usage and custom of merchants, do business in their own names for other parties, are trustees in fact, and are entitled to sue on contracts made by them with third persons. Hence a factor taking a note pay- able to himself on the sale of his principal'sgoods is prima facie entitled to recover thereon.' The complaint must show the title of the h-i Camp. N. P. C. 100 ; 2 Id. 574; 5 Bing. 460 ; 4 Taunt 114 : 13 M. & W. 73. 1-8 Biig, 214; 17 Johns. 248; 2 Sand. 166. j-2 Sand. 166; 17 Johns. 248. te- Green!. Ev. ? .76. 1-Chitty Bills, 655; Greenl. Ev. J 183. Ml-20 Wend. 81 ; S C. 22 Wend. 264. 11-2 Peters, 586. o-For forms, see title PLEADING. p-Gould's PL Ch. 4 J 7-9. q-2 Sand. 706; Edw. Bailm 282. t;8 BILLS, BONDS, AND NOTES. plaintiff. If the action be brought in the name of an indorsee against the makers of a promis- sory note, the complaint must show by some suitable averment that the note has been in- dorsed or transferred to the plaintiff, so that he is the holder and owner of the note.P In an action, counter-claim, or set-off, founded upon an account, promissory note, bill of exchange, or other instrument, for the unconditional pay- ment of money only, it is, in general, sufficient for the party to gire a copy of the account or in- strument, with all credits, and the indorsements thereon, and to state that there is due to him, on such account or instrument, from the adverse party, a specified sum, which he claims with interest. When others than the makers of a promissory note, or the acceptors of a bill of exchange are parties in the action, it is necessary to state, also, the kind of liability of the several parties, and the facts as they may be, which fix their liability. In an action brought by the payee against the maker, it is sufficient to allege the making of the note, give a copy of it, and claim the amount due thereon from the defendant to the plaintiff.' So in an action by the payee against the acceptor of a bill of ex- change, it is sufficient for the plaintiff to give a copy of the bill and of the acceptance in the complaint, and allege that the plaintiff, who is the payee of the bill, is the holder and owner of it ; that no part of it has been paid, but that the whole amount of it is justly due to the plaintiff from the defendant. 1 " As against the maker it is sufficient to allege that the payee, to whose order the note was made payable, trans- ferred it by an indorsement in blank, and that it was afterward transferred to the plaintiff, who is the owner and holder of the note.* As against a remote indorser, it is enough to allege the making of the note or bill in a negotiable form ; that it was regularly indorsed to the defendant ; that he transferred it by an indorsement in blank, and that it was subsequently transferred to the plaintiff; and it is not incumbent upon the plaintiff to prove on the trial, either the handwriting of the drawer, or any of the in- dorsements antecedent to that of the defendant, for each indorsement admits the genuineness of the paper and all prior indorsements.* When a note is made payable to the order of a par- ticular person, and he transfers the same for value, without indorsement, the purchaser or assignee may recover on it, under the present practice, in his own name, and is not compelled to allege or prove a transfer by indorsement. Substantially the same rules of pleading apply in an action against the acceptor of a bill, as p-i Duer, 601. q-io How. Pr. 274. r-2 Duer, 629. The complaint must show that the bill has become due, and should claim interest from a day specified, besides Costs. H-5 Sand. 52. It being averred that the note or bill payable to order was indorsed by the payee in blank, it is sufficient in an action by the indorsee to aver further and generally that it was afterward transferred to the plaintiff. 12 How. Pr. 460; 16 Id. 143. The plaintiff need not aver a transfer to himself by indorsement, n Barb. 020; 12 How. Pr. 166; 22 Id 150. t-2 Camp. 182; iSalk. 127; i Ld. Raym. 443; 15 N. Y. 575 ; 88 Eng. C. L. 366. u-n Barb. 620: 29 Miss. (8 Jones) in action against the maker of a promissory note ; for each of them is the party primarily liable on the instrument, which is in both cases an instrument for the payment of money only. T There need be no difference between a com- plaint in favor of the payee of a note or bill, and a complaint in favor of the indorsee, ex- cept that in the latter case there should be an allegation showing a transfer or indorsement of the paper to the plaintiff. On a note pay- able to a particular person or bearer, it is suffi- cient for the plaintiff" to allege the making and delivery of the note to the payee, and that the plaintiff is now the lawful holder and owner of the note, stating as usual the amount due upon it. w When an indorsee brings an action against the maker or acceptor of a nole or bill payable to a particular person or order, it is obvious that the complaint should show that the payee indorsed the paper and that it was transferred to the plaintiff. 1 Against an in- dorser, it is necessary to allege the making of the note or bill, describing it according to its legal effect, or giving a copy thereof; that the defendant indorsed the same to the plaintiff, or to a prior party through whom he derives title ; that the same was duly presented to the maker or acceptor for payment when the same became due, and was dishonored ; and that the defend- ant was duly notified of the dishonor. Demand and notice being conditions precedent, may be alleged in the manner specified by the code : where the code prevails, otherwise by the common law.* The plaintiff must plead spe- cially the facts dispensing with the demand and notice. 1 In all actions upon negotiable paper the answer must traverse some matter of fact, such as the drawing, or making, or indorsing,* or accepting or presenting, or notice of dishonor ; and new matters of confession and avoidance must.be pleaded specially. 1 * In all actions, allegations of the execution of written instruments and indorsements thereon will be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent or attorney. Bill for Foreclosure. See PRACTICE. Bill of Gross Adventure. Sue MARITIME LAW. Bill of Health. See MERCANTILE LAW. Bill of Information. See PRACTICE. Bill of Interpleader. See PRACTICE. Bill of Lading. See BAILMENTS; MERCANTILE LAW. Bill for New Trial. .See PRACTICE. Bill Obligatory. See BOND. Bill of Pains and Penalties. See CRIMINAL LAW. Bill of Parcels. See BAILMENTS: COMMON CARRIERS. 202. T-IO How. Pr. 274; 2 Duer, 629 ; 2 Bibb. Pr. 402. W-i7 Barb. 530; 3 Kernan, 542. x-The indorsement here is essential to convey the instrument as negotiable paper, y-5 How. Pr. 107. On an " instrument for the payment of money only," it is enough to give a copy of it, and slate the amount due to the plaintiff thereon : but an action against an indorser is founded on the in- strument and certain extrinsic (acts which are necessary to be averred and proved, 8 How. Pr. 61 ; 6 Id. 420; 5 Id. 107. z-3 Cow. 252 ; 7 Port. 175 ; 5 Pick. 436; 5 M & W. 418 ; 4 Sand. 665 ; Byles Bills, 337. a-3 Bos. 10? 5 Abb. 455: 6 Id. 304; 3 Bos. 162. b-Byles Bills, 339. BONDS OR OBLIGATIONS. 179 Bill Of Particulars. See PRACTICE. Bill Payable. See BOOK-KEEPING; MERCAN- TILE LAW. Bill of Peace. See PRACTICE. Bill Penal. See CONTRACTS. Bill of Perpetuate Testimony. See PRAC- TICE. Bill Qtiia Timet. See PRACTICE. Bill Receivable. See BOOK-KEEPING; MER- CANTILE LAW. Bill of Review. See PRACTICE. Bill of Revivor, etc. See PRACTICE. Bill of Sale. See CONTRACTS. Bill of Sigilt. See MERCANTILE LAW. Bill Siuu'l*-. See CONTRACTS. Bill Supplemental. See PRACTICE. Bill to Take Testimony. See PRACTICE. Binding 1 Out. See APPRENTICESHIP. Binding Over. See CRIMINAL LAW; PRACTICE. Bi partite. See CONTRACTS. Birth. See CHILDREN; MEDICAL LAW. Bissextile. See DAY; TIME. Blackmail. See CRIMINAL LAW. Blank. See CONTRACTS : EVIDENCE. Blank Indorsement. See BILLS OF EX- CHANGE AND PROMISSORY NOTES. Blasphemy. See CRIMINAL LAW. Blind. See AFFIDAVITS; CONTRACTS- WILLS; WRITINGS. Blockade. See INTERNATIONAL LAW. Blood. See PERSONAL RELATIONS ; RELATION- SHIP. Boarder. See BAILMENTS; CONTRACTS; INN- KEEPER. Board of Supervisors. See OFFICE AND OF- FICERS. Boat. See MARITIME LAW; SALE. Body Corporate. See CORPORATIONS. Bona fides. See CONTRACTS. Bondage. See APPRENTICESHIP; PERSONAL RE- LATIONS. BONDS. See ASSIGNMENT; BONDS, NOTES, AND BILLS ; CONTRACTS ; and CONVEYANCES, ante ; and title SURETYSHIP, post. A BOND is an obligation in writing, and un- der seal.* It may be single a simple obliga- tion as where the obligor binds or obliges himself, his heirs, executors, and administra- tors, to pay a certain sum of money to another on a day named. It may be, and usually is, conditional, as, that if the obligor does some particular act, the obligation shall be void, or else remain in full force and effect. A bond absolute for the payment of money differs from a promissory note only in having a seal. b A COUNTER BOND is a bond to indemnify. A FORTHCOMING, REDELIVERY OR REPLEVIN BOND is a bond given for the security of the sheriff, constable, or other officer, conditioned to produce the property attached or levied on when required. 4 JOINT BONDS are the bonds of two or more obligors. Actions to enforce them must be joint against them all. JOINT AND SEVERAL BONDS are the bonds of two or more obligors, who bind themselves lointly and severally to the obligees. The a-2 .j & R. 502; ii Ala. 19; i Harper, 434; i l-lackf. 241 ; 6 Vt. 40; i Baldwin C. C. 129. b-2 S. & R. 115; see Read PI. 236. c-2 Leon. 90. d-2 Wash. 189; ii Gratt. 522; Litt. Sel. Cas. 12; 5 J. J. Marsh, 318; 6 Dana, 112; i Blackf. 359; 6 Id. 72; 10 Ohio St. 488. e-7Cow.224. f-i2 Johns. 350; 2 Johns. Cas. 240; s E. D. Smith, 350 ; i Hempst. C. C. 271. {f-2 Dutch, i : 3 Id. 276; 2 Paine C. C. 545. h-s S. & R. 375 : 7 W. & S. 335 ; 3 Hill N. Y. 95 ; 3 Wend. 208 ; 10 Ohio, 433; 10 N. H. 64 : i Me. 132; 7 Pick. 157; 6 Blackf. 113. 1-13 Mo. an ; see jo Penn. St. 350. j-io obligees can sue all the obligors in such a bond jointly, or any one of them separately, for the whole amount, but cannot bring a joint action against a part that is, treat it as joint witk some and several as to others. Upon payment of the whole by one of such obligors, a right to contribution arises in his favor against the other obligors. CONDITION. The condition is a vital part of a conditional bond, and generally limits and determines the amount to be paid in case of a breach, 6 but interest and costs may be added; A condition annexed to a bond is termed a defeasance. A condition defeating a convey- ance of land in a certain event is called a mortgage. Conditions annexed to realty are to be distinguished from limitations. A stranger may take advantage of a limitation, but only the grantor or obligor, or his heirs, can take advantage of a condition.* Conditions must be made at the same time as the original contract, conveyance, or obliga- tion, but may be by a separate instrument, which is then considered as constituting one transaction with the original. 11 Unlawful conditions are void. Conditions in restraint of marriage generally are held void.' Otherwise of conditions restraining from mar- riage to a particular person, or restraining a widow from a second marriage^ A condition in general restraint of alienation is void, k but a condition restraining alienation for a limited time may be good. 1 ASSIGNMENT. The rule that a condition can- not be assigned, and that no one but the heiii can take advantage of a. breach, does not uni- formly obtain in modern times, and in many of the States the common law rule is broken in upon. CONSTRUCTION. Conditions which go to defeat an estate or destroy an act are strictly construed ; while those which go to vest an es- tate or enforce an act are liberally construed." The condition of an obligation is said to be in the language of the obligee, and for that reason is to be construed liberally in favor of the obligor. But whenever an obligation is im- posed by a condition, the construction is to be favorable to the obligee. P FORM. Any words suitable to indicate the intention of the parties may be used in the creation of a condition, as " On condition," " Provided always," " Provided nevertheless," " For that," etc. The words of condition need be in no par- ticular place in the instrument. i EFFECT. The effect of conditions may be Eng. L. & Eq. 139 ; 2 Sim. Ch. (N. S.) 255 ; 6 Watts, 213; 10 Id. 348. k-i Denio, 449; 14 Miss. 730; 24 Id. 203; 6 East. 173; see 21 Pick. 42. I-Co. Litt. 223 ; 2 S. & R. 573 ; i Watts, 389 ; 10 Id. 325. m-13 S. & R. 172; 16 Penn. St. 150; 5 Pick. 528; 10 Id. 306; see a Canes, 345; 20 Barb. 455; 4 Haring. Del. 140; 19 N. Y. loo. Il-Crabbe Real Prop. 2130; 17 N. Y. 34; 4 Gray 140; 35 N. H. 445; 18 111. 431; 15 How. 323. o- Co. Litt. 42, a., 183 a.; 2 Parsons Contr. 22; Shepp Touchst. 375, 376; Dyer, 14 b., 17 a. ; i Johns. ^67. u- i Sumn. C. C. 440. q-i T. R. 645 ; 6 Id. 66$. i So BONDS OR OBLIGATIONS. to suspend the obligation ; as, if I bind myself to convey an estate to you on condition that you first pay m one thousand dollars ; in this case no obligation exists until the condition is performed ; or, 2, to rescind the obligation : as, if you agree to buy my house on condition that it is standing unimpaired on the tenth of May ; or, I convey to you my farm on condition that the conveyance shall be void if I pay you one thousand dollars ; in such cases the obligation is rescinded by the nonperformance of the con- dition ; or, 3, it may modify the previous obli- gation : as, if I bind myself to convey my farm to you on the payment of five thousand dollars if you pny in bank stock, or six thou- sand if you pay in money; or in case of gift or bequest may qualify the gift or bequest as to amount or persons. The effect of a condition precedent is, when performed, to vest an estate, give rise to an obligation, or enlarge an estate already vested. 1 Unless a condition precedent be performed no estate will vest ; and this even where the per- formance is prevented by act of God, or of the law.' Not so if prevented by the party im- posing it.' If a condition subsequent was void at its creation or becomes impossible, unlawful, or in any way void, the estate or obligation re- mains intact and absolute.' In case of a condition broken, if the grantor is in possession the estate revests at once." But if the grantor is out of possession he must enter, T and is then invested of his previous es- tate. 1 " PERFORMANCE should be complete and ef- fectual. 1 An inconsiderable casual failure to perform is not non-performance.' Any one who has an interest in the estate may perform the condition; but a stranger gets no benefit from performing it. 1 Conditions precedent, if annexed to land, are to be strictly performed, even when affecting marriage.* Conditions precedent can generally be exactly performed ; equity will not generally interfere to avoid the consequence of non-performance. 11 But in cases of conditions subsequent, equity will in- terfere where there was even a partial perform- ance, or where there is only a delay in per- formance. This is the ground of equitable jurisdiction over mortgages. Non-performance of a condition which was possible at the time of its making, but which ^has since become impossible, is excused if the 'impossibility is caused by act of God, d or by act of law, if it was lawful at its creation ; e or by act of the party, as, when the one imposing the obligation accepts another thing in satis- |-i2 Barb. 440. r-Co. Litt. 42; a Bl. Comm. 157; 4 Kent Comm. 125 ; 4 Jones, 249. 8-13 B. Mon. 163 ; 2 Vt. 460. t-2 Bl. Comm. 157; 15 Ga. 103. U-5 Mass. 321 ; * S. & R. 375; 22 Me. 39. But see a N. H. 120. v-8 Blackf. 138; 12 Ired. 194; 18 Conn. 53$; 8 N. H. 477; 34 Me. 322 ; 8 F.xch. 67. w-Co. Litt. Butler's note, 94. X-i Roile Abr. 425. y-6 Dana, 44 ; 17 N. Y. 34. -io S. & R. 186. a-i Mod. 300; i Atk. Ch. 361. b 3 Ves. Ch. 89 ; i Atk. Ch. 361 ; 3 Id. 330 ; West, 350 ; 2 Brown Ch. 431. C-Crabbe R. Prop. \ 2160; 4 Ind. 628; 26 faction, or renders the performance impossible by his own default/ If performance on one part becomes impossible by act of God, the whole will in general be excused.* Where conditions are liberally construed a strict performance is required ; where condi- tions are strictly construed a reasonably exact performance is sufficient. If the place of performance be agreed upon, neither party alone can change it, but either may with the consent of the other. 11 Generally, where no time of performance is limited he who has the benefit of the contract ' may perform the condition when he pleases, at any time during his life, 1 and need not do it when requested.J But if a prompt performance be necessary to carry out the will of a testator, the beneficiary cannot have a lifetime in which to perform the condition. k In this case no previous demand is necessary. 1 But even then a reasonable time is allowed. 111 DATE AND DELIVERY. The date is not considered of the substance of a deed ; and therefore a bond which either has no date, or an impossible date, is still good, provided the real day of its being dated or given, that is, delivered, can be proved. It must be deliv- ered by the party whose bond it is to the other. But the delivery and acceptance may be by altering.? FORFEITURE. Upon the forfeiture of a bond courts will not permit a man to take more than his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed, damages sustained upon the non-performance of covenants, and the like. In case of a bond conditioned for the pay- ment of money, the payment or tender of the principal sum due with interest and costs, even though the bond were forfeited and suit com- menced thereon, is a satisfaction and discharge.' If a bond lie dormant for twenty years it cannot afterwards be recovered, for the law raises a presumption of its having been paid, and the defendant may plead sotvit ad diem (he paid at the day) to an action upon it. r In some cases, under particular circumstances, even a less time may found a presumption.' The statute as to the presumption of payment after twenty years is in the nature of a statute of limitations. It is available as a bar to an action to recover on the instrument, but not where the party asks affirmative relief based upon the fact of payment.' OBLIGATION OF. See CONTRACTS, ante. FORMAL REQUISITES. The instru- Me. 525. d-io Pick. 507. e-4 Monr. 158; i Penn. St. 495. f-2i Pick. 389 ; i Paine. C. C. 652 ; 6 Pet. 745 ; i Cow. 339. g-i 'Bos. & P. 242; Cro. Eliz. 280; 5 Co. 21 ; i Ld. Raym. 279. h-i Rolle, 444; n Vt. 612; 3 Leon. 260. i-Plowd. 16; Co. Litt. 208*. J-Co. Litt. 209 a. fe-sS. & R. 384. 1-s S. & R. 385. m-i Rolle Abr. 449. 11-2 Bl. Comm. 304; Com. L)ig. F*it B. 3; 3 Call. 309. 0-13 Md. i ; 5 Gray, 440; n Ga. 286. See 37 N. H. 306; Bac. Abr. Obligations C. p-io Ind. i. -2 Bl. Comm. 340. r-i Burr. 434 ; 4 Id. 1963. s-j T. q-2 BL R. 271 ; Cowp. 109. t-i2 N. Y. 409; 14 Id. 477. BONDS OR OBLIGATIONS. ment must be in writing and sealed," except in States where private seals are abolished by statute or otherwise ; where, however, seals are required, a sealing, sufficient where the bond is made, is held sufficient though it might be an insufficient sealing if it had been made where it is sued on. T The signature (and seal) may be in any part of the instrument." Where a bond is required by statute, every material requirement must be observed. If it contains anything illegal, it is so far void. If it contains anything superfluous, it is so far treated as mere surplusage. If any material thing is omitted, the statute is not complied with." See CONDITION, above. PARTIES. There must be proper parties; a man cannot be bound to himself, even in connection with others.' No person can take the benefit of a bond except the parties named therein. 1 Except, perhaps, in some cases of bonds given for the performance of their duties by certain classes of public officers.* If the bond run to several persons jointly, all must join in suit for a breach, though it be conditioned for the performance of different things for the benefit of each. b PENALTY. The principal sum in a bond is usually one-half of the penal sum specified in the condition. The recovery against a surety in a bond for the payment of money is not limited to the penalty, but may exceed it so far as necessary to include interest from the time of the breach. So far as interest is payable by the terms of the contract, and until default made it is limited by the penalty; but after breach it is recoverable, not on the ground of contract but as damages, which the law gives for its violation.* BOND OR OBLIGATION FORMS. Bond or Obligation Short Form. For Payment of Money. With or Without Penalty. Know aU men by these presents: That I, A. B., of - , in the county of - , and State of - , am bound unto C. D.,of - , for the payment of - dollars, on the - day of - , with interest at - per cent, per annum ; for which I bind myself, my heirs, executors, and administrators, to the said C. D., his executors, administrators, and assigns (in the penal sum of - dollars). Witness my hand and seal, this - day of - . A. B. [&,/.] Bond or Obligation Short Form. Witliout Condition. Know all men by these presents: That I, A. B., am held and firmly bound unto C. D. in the sum of - dollars lawful money of the United States of America, to be paid to the said C. D., or his certain attorney, A. A., or as- signs; to which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the - day of - . In testimony whereof, I have set my hand and seal to this instrument, on the - day of - . A. B. [Seat.] Executed and delivered in ered in) ., N. S. } presence of W. T ll-i Baldw. C. C. 129 ; 6 Vt. 40. v-2 Caines, 362. w-7 Wend. 345. x-See o Pick. 395. y-s Cow. 688. See 3 Jones Eq. 311. x-Hob. 9; 14 Barb, sy, n-4 Bond or Obligation Goiternl Form. Know all men by these presents: That I, A. B., of the town of , in the county of , and State of , am held and firmly bound unto C. D., of , in the sum of one thou- sand dollars, to be paid to the said C. D., his executors, administrators or assigns; for which payment, well and truly to be made, I bind my- self, my heirs, executors and administrators, firmly by these presents. Sealed with my seal. Dated the day of The condition of the above obligation is such : That if the abpve-bounden A. B., his heirs, ex- ecutors, or administrators, shall well and truly pay, or cause to be paid, unto the above-named C. D., his executors, administrators or assigns, the just and full sum of five hundred dollars, in five equal annual payments, from the date here- of, with annual interest, then the above obliga- tion to be void ; otherwise to remain in full force and virtue. A. B. [Sea/.] Sealed and delivered in > presence of W.T..N.S./ Bond or Obligation General Form. For Payment of Money. Know all men by these presents : That I, A. B., of the town of , in the county of , and State of , merchant, am held and firmly bound unto C. D., of the said town, farmer, in the sum of dollars (here insert the penal sum, which is commonly double the amount of the principal sum intended to l/e secured, in order to cover interest, costs, expenses, and other contingencies), good and lawful money of the United States, to be paid the said C. D., his executors, administrators, or assigns, for which payment, well and truly to be made, I do bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, and dated the day of . The condition of this obligation is such . That if the above-bounden A. B., his heirs, ex- ecutors, and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the above-named C. D. , his executors, administrators or assigns, the just and full sum of dollars (here insert the principal sum to be secured}, with in- terest at the rate of per cent, per annum (or with legal interest) for the same, on the day of , which will be in the year , without fraud or other delay, then this obligation is to be void, otherwise to remain in full force. Executed in presence ) A. B. (Seal.\ ofW. T..N. S. / Condition Interest Periodical. With interest thereon from the date hereof (or from the day of , A D. ), at the rate of per cent, per annum (or with legal interest there- on), payable semi-annually (or quarterly), on the day of and (designating the months in- tended), in each year, until the whole of said principal sum be paid, without fraud or other delay. Condition Payment in Instalments, Equal Annual, With Interest, etc. In annual payments, from the date hereof (or commencing on the day of ), with inter- est thereon, at the rate of per cent, per an- num ; (Or, with legal interest thereon), payable annually, with such instalments ; ( Or, semi-annually, or quarterly on the days of {naming the months for payment of interest}, in each year). Condition Payment in Instalments, Unequal, With Interest, etc. In manner following: that is to say, the sum of dollars, on the day of , next ; the sum of dollars, on the day of ; and the remaining sum of dollars, in one year from the said last-mentioned date, together with the interest, at the rate of per cent, per Wend. 414; 8 Md. 287; 4 Ohio St. 418: 7 Cal. 551; i Grant Cas. 359 . 3 Ind. 431. b-a N. Y. 388. c-8 N. Y. 35- 182 BONDS OR OBLIGATIONS. annum (or with legal interest), on the whole sum remaining unpaid, at the time of each payment. Condition Payment in Instalments, IVith Interest. With interest, at the rate of per cent, per annum. ( Or with legal interest.) Said principal to be paid in equal annual instalments, with the interest on such instalment, on the day of , in each year. Condition Payment After Death of Third Person. With interest at the rate of percent, per annum. (Of with legal interest .) Within the space of months next after the decease of M. T., X , merchant. Ho ml or Obligation General Form. Interest Clause. Know all men by these presents : That I, A. B., of the city of , in the State of , am held and firmly bound unto C. D., of , in the sum of dollars (inserting the pen- alty), to be paid to the said C. D., his executors, administrators, or assigns, for which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, dated the day of . The condition of the above obligation is such, that if the above-bounden A. B., his heirs, exec- utors, and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the above-named C. D., his executors, administra- tors, or assigns, the just and full sum of dol- lars, on the day of , with interest, at per cent, per annum, payable half-yearly from the date hereof, without fraud or other delay, then the above obligation to be void ; otherwise, to re- main in full force. And it is hereby encpressly agreed, that, should any default be made in the payment of the said in- terest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear for the space of days, then and from thence- forth that is to say, after the lapse of the said days the aforesaid principal sum of dol- lars, with all arrearages of interest thereon, shall at the option of the said C. D. , or his executors, ad- ministrators, or assigns, become and be due and payable immediately thereafter, although the period first above limited for the payment there- of may not then have expired, anything herein- before contained to the contrary thereof in any- wise notwithstanding. A. B. {Seal.} Executed in presence of) W. T., N. S. j Condition Insurance. The condition of this obligation is such, that if the above-bounden A. B., his heirs, executors, and administrators, or any of them, shall and do well and truly pay, or cause to be paid unto the above-mentioned C. D., his executors, adminis- trators, or assigns, the just and full sum of dollars, on the day of , which will be in the year , with interest thereon at per cent, per annum (or with legal interest); and shall keep the buildings erected, or to be erected, on the premises described in a certain mortgage, ex- ecuted by the said A. B. (nnd W. B., his wife), and bearing even date herewith, and being collateral hereto, insured in some solvent incorporated in- surance company of the State of , against loss or damage by fire, to an amount not less than dollars; and shall assign the policy to be taken for such insurance to the obligee herein, of 'his executors, administrators, or assigns, as col- lateral security hereto. And it is hereby expressly agreed, that in case the insurance above mentioned shall not be ef- fected or continued in the manner above pro- vided, that then the said obligee, his executors, administrators, or assigns, may effect or continue such insurance in the name of the said obligor, or otherwise, and the premiums paid therefore shall be chargeable as part of the principal sum hereby secured to be paid. And it is hereby further expressly agreed, that, in case any instalment of principal, or any part thereof, or any interest moneys, or any part thereof, hereby secured to be paid, shall remain due and unpaid for the space of days after the same shall, by the terms hereof, become due and payable (or any insurance premiums paid by the obligee or his representatives, as aforesaid, shall not be repaid within days after notice thereof to the said A. B., his executors, administrators, or assigns), that then and from thenceforth that is to say, after the lapse of said days the whole principal sum hereby secured to be paid, together with all arrearages of interest thereon, shall, at the option of the said C. D.,his executors, administrators, or assigns, become due and payable forthwith, although the period first above limited for the payment thereof may not then have expired, any- thing herein contained to the contrary notwith- standing. Bond or Obligation General Form. Condition for the Payment of Money, viith Poiuer of Attorney to Confess "Judgment, Annexed. Know all men by these presents: That A. B. is held and firmly bound unto C. D. in the sum of dollars, lawful money of the United States of America, to be paid to the said C. D., or his certain attorney, executors, adminis- trators, or assigns: to which payment well and truly to be made, heirs, executors, and ad- ministrators, firmly by these presents. Sealed with his seal, dated the day of . The condition of this obligation is: That if the above-bounden A. B.,his heirs, exec- utors, administrators, or any of them, shall and do well and truly pay, or cause to be paid, unto the above-named C. D.,or his attorney, executors, ad- ministrators, or assigns, the just sum of dol- lars, without any fraud or further delay, then the above obligation to be void, or else to be and re- main in full force and effect. A. B. \JSenl.\ Sealed and delivered in the pres-) enceof W. T..N. S. j" To A. A., Esq., attorney of the court, at , in the county of , in the State of , or to any other attorney of the said court, or of any other court, there or elsewhere. Whereas, A. B., in and by a certain obligation bearing even date herewith, does stand bound unto C. D., in the sum of dollars, lawful money of the United States of America, condi- tioned for the payment of (state what, as a certain promissory note, etc. ; or a certain debt contracted for, etc.) These are to desire and authorize you, or any of you, to appear for said A. B. , his heirs, execu- tors, or administrators, in the said court or else- where, in an action of debt, there or elsewhere brought, or to be brought, against me, or my heirs, executors, or administrators, at the suit of the said C. D., his executors, administrators, or assigns, on the said obligation, as of any term or time past, present, or any other subsequent term or time there or elsewhere to be held, and confess judgment thereupon against me, or my heirs, executors, or administrators, for the sum of dollars, debt, besides costs of suit, in such man- ner as to you shall seem meet : and for ycur, or any of your so doing, this shall be your sufficient warrant. And I do hereby for myself, and for my heirs, executors, and administrators, remise, release, and forever quit-claim unto the said C. D., or his attorney, executors, administrators, and assigns, all and all mannerof error and errors, misprisions, misentries, defects and imperfections whatever, in the entering of the said judgment, or any pro- cess or proceedings thereon or thereto, or anywise touching or concerning the same. In witness whereof, I have hereunto set my hand and seal, the day of . A. B. [Seat.] Sealed and delivered in the pres-) enceofW. T.,N. S. j Bond or Obligation General Form. Another With Warrant of Attorney, to Confess yitdgment. Know all men by these presents : That I, A, B., of , in the county of, and BONDS OR OBLIGATIONS. '83 State of , am held and firmly bound unto C. D M of the city of , and State of , in the sum of dollars (imertin!; thr penal sum ), good and lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns; for which payment, well and surely to be made, I do bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal ; dated this day of The condition of the above obligation is such : That if the above-bounden A. B., his heirs, ex- ecutors, and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the above-named C. D., his executors, administra- tors, and assigns, the just and full sum of dollars, with legal interest for the same, on or be- fore the day of , then this obligation to be void ; otherwise, to remain in full force. A. B. [Sea!.] Executed in presence of 1 W. T., N. S. j To any attorney of the court of the State of , or of any other court, there or elsewhere : Whereas, I, A. B., of , by a certain obliga- tion, bearing even date herewith, do stand bound unto C. D., of , in the sum of dollars (peaal sum), , conditioned for the payment of dollars (principal sum), and interest, these pres- ents are to desire and authorize you, or any of you, on the request of said C. D., to appear for me, my executors, or administrators, in the said court, or elsewhere, in a proper action there or elsewhere brought, or to be brought against me, my executors, or administrators, at the suit of the said C. D.,his executors, administrators, or assigns, on the safd obligation, as of the present, or any antecedent, or subsequent term, or in va- cation of the said court, or any other court, there or elsewhere to be held, and confess judgment thereupon against me, my xecutors,or adminis- trators, for the said sum of dollars (penaliy\, debt, besides costs of suit, by nan sum informatus, nihil dicit, or otherwise, as to you shall seem meet ; and for your, or any of your so doing, this shall be your sufficient warrant. And I do hereby, for myself, my executors and administrators, remise, release, and forever quit- claim unto the said C. D., his executors, adminis- trators, and assigns, all and all manner of error and errors, defects, and imperfections whatever, in the entering of the said judgment, or any pro- cess or proceedings thereon, or thereto, or in any- wise touching or concerning the same. In witness whereof, I have hereunto set my hand and seal, the day of . A. B. [Seal.] Sealed and delivered in the pres- ) ence of W. T., N. S. / Bond or Obligation Annuity. Payment of an, for a Term of Years. Know all men by these presents : That I, A. B., of , county of , and State of , am (or we, A. B. , of , and C. D. , of , are) held and firmly bound unto W. D., widow of D. D., deceased, of the town of , in the county of , and State of (or unto D. D., of , and W. D., of, etc.), in the sum of dollars, good and lawful money of the United States, to be paid to the said W. D., her executors, admin- istrators, or assigns (or to the said D. D. and W. D., their executors, administrators, or assigns), for which payment, well and truly to be made, I do bind myself, my heirs, executors, and administrators (or we do bind ourselves, our heirs, executors, and ad- ministrators, joimly and severally), firmly by these presents. Sealed with my seal (or our seals); dated this day of . The condition of the above obligation is such, That if the above-bounden A. B., his (or A. B. and C. D., their) heirs, executors, or administra- tors, or any of them, shall yearly and every year, during the term of years, to be computed from (the day of last past before) the day of the date of the above-written obligation, well and truly pay, or cause to be paid, unto the above- named W. D., her executors, administrators, or assigns, the annuity or clear yearly sum of dollars, by even and quarterly (or half-yearly) por- tions, paid at or upon the days of the months of in each year, the first payment thereof to begin and be made on the day of next ensuing the day of the date of this obligation. and also pay a proportionable part of the said annuity, or clear yearly payment of , for, or in respect of so many days as shall have elapsed from the last half (or quarter) yearly day of pay- ment next preceding the decease of the said W. D. up to the day of her death, then this obliga- tion is to be void ; but if default shall be made in payment of the said annuity, or any part there- of, at any of the times aforesaid, then the said obligation is to remain in full force. A. B. \SealS Executed in presence ) (Or, A. B. [Seai\ ofW. T.,N. S. | B. A. [Seal.\) Bond or Obligation Apprentice. By a Father for Service of. Know all men by these presents : That I, A. B., of , in county, and State of , am held and firmly bound unto C. D., of , in county, and State of , in the sum of dollars (inserting penal sum}, good and law- ful money of the United States, to be paid to the said C. D., his executors, administrators or as- signs ; for which payment, well and truly to be made, I do bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal ; dated this day of , A. D. . 'Whereas S. B., son of the above-bounden A. B. , by indenture of apprenticeship, bearing even date -with the above-written obligation, has been apprenticed to the above-named C. D., with him to dwell and abide, from the day of the date thereof unto the full end and term of years thence next ensuing, as by the said indenture more fully appears : Now the condition of this obligation is such : That if the said S. B. shall well and truly serve and dwell with the said C. D. after the manner of an apprentice, during all the said term of years, according to the true intent and meaning of the said indenture ; and if the said S. B. shal/ not, during said time, detain, convert, waste, embezzle, make away or lend, without his mas- ter's order or privity, any goods and chattels of the said C. D., his executors or administrators, but shall behave himself honestly and obediently towards the said C. D., his executors and ad- ministrators, as a good and dutiful apprentice ought to do, during the said term (or may provide for the obligor reimbursing, as in the following form, last clause), then this obligation is to be void ; otherwise, to remain in full force. Executed in presence I A. B. [Seal.] ofW. T..N. S. / Bond or Obligation Bail Bond. Know all men by these presents : That we, A. B., C. D., and E. F., of , are held and firmly bound unto S. F., sheriff of the county of , in the sum of one thousand dol- lars, to be paid unto the said S. F., his executors, administrators, or assigns ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors, and adminis- trators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of The condition of this obligation is such : That if the above-bounden A. B., defendant, shall appear in a certain action of trespass, com- menced against the said A. B., by P. F. , plaintiff, in the supreme court of judicature of the people of the State of , by putting in special bail within days after the day of next (return day of writ), and by perfecting such bail if required, according to the rules and practice of the said court, then the above obligation to b void, otherwise to remain in full force and vir- tue. Seal, tc. BONDS OR OBLIGATIONS. Bond or Obligation Bill of Credit. This present wilting witnesseth: That I, A. B., of , merchant, do undertake with C. D., of , merchant, his executors and administrators, that if he deliver unto E. P., of , trader, or any of his assigns, to his use, any sum or sums of money, amounting to the sum of or under, and shall take in my name a bill under the hand and seal of the said E. F., con- taining and showing the certainty thereof; that then I, my executors or administrators, having the same bill delivered to me or them, shall im- mediately, upon the receipt of the same, pay or cause to be paid unto the said C. D., his execu- tors, administrators, or assigns, all such sums of noney as shall be contained in the said bill ; for which payment, in manner and form aforesaid, well and truly to be made, I bind myself, my executors and administrators, by these presents. Sealed with my seal, etc. Bond or Obligation Bill Penal. Or Without Penalty , for the Payment of Money. Know all men by these presents: That I, A. B.,of , do owe unto C. D.,of , the sum of , to be paid unto the said C. D., his executors, administrators, or assigns, on the next ensuing the date hereof; for which pay- ment, well and truly to be made, I bind myself, my heirs, executors, and administrators (in the sum of ), firmly by these presents. In witness whereof, I have hereunto set my hand and seal this day of , A. D. . Bond or Obligation Bill .Single. For an Unlimited Sum Know all men by these presents: That I, A. B. (the obligor) am held and firmly bound to C. D. (the obligee) in all and every such sums and sum of money, as already have been, or hereafter shall or may be paid or advanced ; and all and every such sums and sum of money, to pay which a liability or engagement has been, or shall or may be entered into, cr incurred by him, the said C. D., by reason or means of ac- cepting or paying the drafts, bills or promissory notes of the said A. B., or by discounting for him other bills of exchange, or promissory notes, or by affording to him other pecuniary assist- ance ; together with lawful interest for the same, from the time or respective times of advancing the same; and also commission and other charges according to custom, to be paid to the said C. D., or his certain attorney, executors, ad- ministrators, or assigns; For which payment well and truly to be made I bind myself, my heirs, executors, and administrators, and every of them, firmly by these presents. Sealed with my seal; Dated, etc. Sealed and delivered in I presence of W. T., N. S. J Bond or Obligation Bottomry Bond. Know all men by these presents : That I, M. R., master (or owner, or master and owner) of the ship or vessel called the V., now lying at the port of , am held and firmly bound unto C. D., of the city of , in the county of , and State of , merchant (or unto E. F , of , and C. D , of ), in the sum of dol- lars, good and lawful money of the United States (or other currency in -.ul'.itk payment is to l"'-J Executed in presence of) W. T., N. S. J Bond or Obligation To Deliver to Sheriff" Goods. Levied on and Left in Defendant's Possession, With Surety. Know all men by these presents: That we, A. B.,of , in county, and State of , and S. Y. , of the same place, merchant, are held and firmly bound unto S. F., the sheriff of county, in the sum of dollars, good and lawful money of the United States, to be paid to the said S. F.,his executors, administra- tors, or assigns, for which payment, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals ; dated this day of Whereas the above-named S. F., sheriff of the said county of , by virtue of an execution (or a writ of fieri facias), issued out of the court of , for the , to him directed and delivered, has seized and taken in execution the following goods (describing t/ieut), as the property of the above-bounden A. B., defendant in the said exe- cution (of writ of fieri facias). Now the condition of this obligation is such, that if the above-bounden A. B. or S. Y., or their executors, administrators, or assigns, or any of them, shall well and truly deliver up, or cause to be delivered up to the said sheriff, all the above- mentioned goods, whenever required by the said sheriff, in a sound and in every way as good a sit- uation and condition as when the above-men- tioned goods were first levied on by the said sheriff, and that too without fraud or other delay, then this obligation is to be void ; otherwise, to remain in full force. A. B. \Seal.'\ Executed in presence of) S. Y. \Seal\ w. T., N. s. ; Bond or Obligation To Execute a Con- veyance. With Surety. Know all men by these presents: That we, A. B. , of , in county, and State of , and B. A., of , are held and firmly bound unto C. D., of the town of , in county, and State of , in the sum of dol- lars, to be paid to the said C. D., his executors, administrators, or assigns, for which payment, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals ; dated this day of The condition of the above obligation is such, That if the above-bounden A. B., on or before the day of next, or, in case of his death before that time, if the heirs of the said A. B. within months after his decease, i r such heirs shall then be of full age, or if within age, then within months after such heirs shall be of full age, do and shall upon the reasonable request, and at the proper cost and charges in the law of the said C. D., his heirs or assigns, make, ex- ecute, and deliver, or cause so to be to the said C. D., his heirs or assigns, or to such person or persons as he or they shall nominate and appoint, and to such uses as he or they shall direct (iiere state the conveyance stipulated for , as) all and every such deed or deeds, conveyance or conveyances whatsoever, which shall be needful for conveying and confirming unto the said C. D., his heirs and assigns, a good, absolute, and indefeasible estate of inheritance in fee simple, clear of all incum brances, except a mortgage made by A. B. fot $1,000, and due years from date. A good and sufficient conveyance in fee simple, with the usual covenants. (Or, a good and sufficient warranty deed, in fee simr pie, free from all mcumbrance, and with full covenants). of the following described premises, to wit : all (Jiere describing the premises), then the above obli- gation to be void ; otherwise, to remain in full force and virtue. A. B. \Stal. \ Executed in presence of I B. A. \Seal.\ W. T., N. S. j Bond or Obligation Executors. Know all men by these presents: That I, A. B. , of , am held and firmly bound unto E. X. and T. R., of, etc., executors of the last will and testament of D. D., deceased, late of , in the sum of one thousand dollars, to be paid to the said E. X. and T. R., executors, as aforesaid, the survivors or survivor, or his or their assigns ; for which payment, well and truly to be made, I bind myself, my heirs, executors, and ad- ministrators, firmly by these presents. Sealed with my seal. Dated the day of The condition of the above obligation is such : That if the above-bounden A. B., his heirs, ex- ecutors, or administrators, shall well and truly pay, or cause to be paid, unto the above-named E. X. and T. R., executors, as aforesaid, the sur- vivors, or survivor, or his or their assigns, the just and full sum of five hundred dollars, in five equal annual payments from the date hereof, with annual interest, then the above obligation to be void ; otherwise to remain in full force and virtue. A. B. \Stal.\ Sealed and delivered in pres-) enceofW. T..N. S. j Bond or Obligation Legatee*. Know all men by these presents: That we, A. B. and O. P., of, etc., are held and firmly bound unto E. X. and T. R., of, etc., exec- utors of the last will and testament of O. D., de- ceased, late of the town of * , in the sum of one thousand dollars, to be paid to the said E. X. and T. R., executors, as aforesaid, the survivors, or survivor, or his or their assigns ; for which pay- ment, well and truly to be made, we bind our- selves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of Whereas, in and by the last will and testament of the said D. D., deceased, a legacy of one hun- dred dollars is bequeathed to the said A. B., which has been paid to him by the said E. X. and T. R., executors as aforesaid : Now the condition of this obligation is such : That if any debts against the deceased, above named, shall duly appear, and which there shall be no other assets to pay, and if there shall be no other assets to pay other legacies, or not suffi- cient, that then the said A. B. shall refund the legacy so paid, or such ratable proportion there- of, with the other legatees of the deceased, as may be necessary for the payment of such debts, and the proportional parts of other legacies, if there be any, and the costs and charges incurred by reason of the payment to the said A. B. : and that if the probate of the will of the said deceased be revoked, or the will declared void, then the said A. B shall refund the whole of the legacy, with interest, to the said E. X. and T. R., their executors, administrators, or assigns. Sealed, etc. A B. \Sea.l.\ O. P. [Seal.] Bond or Obligation Legatee or K 1 > r< s< > 1 1 \ \\ \ i ve. Before Sint. Know all men by these presents : That we, A. B. and O. P., of, etc., are held and firmly bound unto E. X. and T.-R., of, etc.. exec- utors of the last will and testament oi D. D., de- ceased, late of the town of , in the sum of on* thousand dollars, to be paid to the said E X. and BONDS OR OBLIGATIONS. T. ft., executors, as aforesaid, the survivors, or survivor, or his or their assigns; for which pay- ment, well and truly to be made, we bind our- selves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents: Sealed wifh our seals. Dated the day of Whereas, the said A. B. is about to commence a suit in the supreme court of judicature of the people of the State of , against the said E. X. and T. R., as such executors, as aforesaid, I'or the purpose of recovering the amount of a certain legacy bequeathed to him, in and by the last will and testament of the said D. D., deceased (or, for the purpose of recovering the distributive share of the property of the said D. D., deceased, due to him, the said A. B., as one of the sons of the said D. D., deceased). Now the condition of this obligation is such : That if any debts owing by the said deceased shall hereafter be recovered, or duly made to ap- pear, for the payment of which there shall be no assets other than the said legacy (or distributive share), that then the said A. B. shall refund the amount that may be recovered in any action by him against the said executors, or such ratable part thereof, with the other legatees (or tepiesent- atives) of the deceased, as may be necessary for the payment of the said debts, and the costs and charges incurred by a recovery against the said executors in any suit therefor. (If the bond is given fry a legatee ,the following clause must be added) : And also, if no sufficient assets shall remain, after the payment of said legacy, to pay any other legacy which may be due, that then the said A. B. shall refund such ratable part or pro- portion thereof, with the other legatees, or repre- sentatives, of the deceased, as may be necessary for the payment of such other legacy. Sealed, etc. Bond or Obligation Of Two Obligors. Know all men by these presents : That we, A. B. and B. A., of, etc., are held and firmly bound unto C. D., of, etc., in the sum of one thousand dollars, lawful money of the United States of America, to be paid to the said C. D., his executors, administrators or assigns ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, execu- tors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of The condition of the above obligation is such : That if the above-bounden A. B. and B. A., or either of them, their or either of their heirs, ex- ecutors, or administrators, shall well and truly pay, or cause to be paid, unto the above-named C. D., etc. (as in preceding form). Sealed and delivered in I A. B. \Seal. ] presence of W. T., N. S. j B. A. [Sea/.\ Bond or Obligation Obligors to Obli- gees. Two or Mure, to Two or More. For Payment of Money at One Period. Know all men by these presents: That we, A. B., of , in the county of , B. A., of , are held and firmly bound to C. D., of , D. C., of (and so on if tnore obligees), in the sum of , to be paid to the said C. D. and D. C., or either of them (if more than tu*o, say, or any of them), or their certain attorney, executors, administrators, or assigns, for which payment, to be well and truly made, we bind ourselves, and each of us-, by himself, our and each of our heirs, executors, and administrators, firmly by tnese presents. Sealed with our seals. Dated the day of The condition of this obligation is such : That if the above-bounden A. B. and B. A , or either of them, their or either of their heirs, ex- ecutors, or administrators, do and shall well and truly pay, or cause to be paid, unto the above- named C. D., D. C., or either of them (if more tkan two, say or any of them), their or either of their executors or administrators, the full sum of two hundred and fifty dollars, with lawful inter- est for the same on the day of , next en- suing the date of the above-written obligation, without fraud or delay, then this obligation shall be void ; otherwise the same shall remain in full force. Sealed and delivered, etc. Bond or Obligation One Obligor to Severn] Obligees. Know all men by these presents: That 1, A. B. , of the town of , in the county of , and State of , am held and firmly bound unto C. D., of the city of , and State of , E. F., of the same place, and G. H., of , in the State of , in the sum of dol- lars (intertills tkf penal sum), good and lawful money of the United States, to be paid to the said C. D., E. F., and G. H., their executors, admin- istrators, or assigns, for which payment, well and truly to be made, 1 do bind myself, and my heirs, executors, and administrators, firmly by these presents. Sealed with my seal ; dated this day of The condition of the above obligation is such, that if the above-bounden A. B., his heirs, exec- utors, and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the above-named C. D., E.F., and G. H., or their ex- ecutors, administrators, or assigns, the just and full sum of, etc. (aj I'M other cases). A. B, {Seat.} Executed in presence of) W. T., N. S. f lioiid or Obligation For Performance. To be Indorsed on a Contrail or Agreement. Know all men by these presents : That we, A. B. and B. A., of, etc., are held and firmly bound unto C. D., of, etc., in the sum of one thousand dollars, lawful money of the United States of America, to be paid to the said C. D., his executors, administrators, or assigns ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, execu- tors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals ; dated this day of The condition of this obligation is such, that if the above-bounden A. B., his executors, adminis- trators, or assigns, shall, in all things, stand to, and abide by, and well and truly keep and per- form, the covenants, conditions, and agreements, in the within instrument contained, on his or their part to be kept and performed, at the time, and in the manner and form therein specified, then the above obligation shall be void ; else to remain in full force and virtue. Sealed, etc. BomI or Obligation Respondent in Koiul. Know all men by these presents That I, M. R., master (or owner, or master and owner) of the ship or vessel called the V., now lying at the port of , am held and firmly bound unto C. D , of the city of , in the county of , and State of , merchant (or unto E. F., of , and C D., of ), in the sum of dol- lars, good and lawful money of the United States (or otlier currency in wki., his heirs or assigns, make, execute, and deliver, or cause so to be, to the said C. D , his heirs or assigns, or to such person or persons as he or they shall nominate and appoint, and to such uses as he or they shall direct, a good and sufficient assignment of all such estate and in- terest as he, the said A. B., now has in the lands and tenements of M. N. at , then this obliga- tion to be void; otherwise, to remain in lull force. A. B. (&- mimstrators, from and against any and all suits, acti6ns, damages, costs, charges and expenses by reason of said bond, or any of the money so paid, then this obligation is to be void ; otherwise, to remain in full force. A. B. \Stal.\ E. F. [Seat. \ BOND OR OBLIGATION INDEMNITY To Indemnify Maker of Note or Acceptor of Bill for Accommodation, front Loss Thereby, with Surety. Know all men by these presents: That we, A. B. , of , in county, and State of , and B. A., of , are held and firmly bound unto C. D., of , county of , and State of , in the sum of dollars, good and lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns ; for which payment, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. sealed with our seals; dated this day of . Whereas the said C. D. has, without consider- ation to him moving therefor, and solely for the accommodation of the above-bounden A. B., made and advanced to the said A. B. his promis- sory note (or accepted a bill of exchange drawn by upon him) for dollars, bearing date the day of , and payable to (.with interest;, days after the date thereof: Now the condition of this obligation is such, That if the said above-bounden A. B and B. A., their executors or administrators, or any of them, shall well and truly pay the said sum of dollars, for the payment of which the said note (or bill) is so given, and the interest thereof, on the day of payment therein mentioned, and in full discharge thereof, and indemnify and save harmless the said C. D., his executors and admin- istrators, from and against any and all suits, actions, damages, costs, charges, and expenses, by reason of said note (or bill), then this obliga- tion is to be void ; otherwise, to remain in full force. A. B. {Seal.} B. A. \Seal] CONDITION To INDEMNIFY ON PAYING A IXDST NOTB OR BILL Whereas a promissory note for dollars, made by , or a bill of exchange drawn by , upon , bearing date at , the day of , and payable months after the date, to the order of , at (and indorsed by 1, and which is now the property of the above- bounden A. B , has been lost or destroyed), and cannot now be produced by him , and whereas at his request, and upon his promise to indemnify and save harmless the said C. D. in the premises, and to deliver up the said note, when found, to the said C. D., to be cancelled, the said C. D. has this day paid unto the said A. B. the sum of dollars, the receipt whereof the said A. B. doth hereby acknowledge, in full satisfaction and dis- charge of the said note : Now the condition of the above obligation is such : That if the above-bounden A. B. and E. F., their heirs, executors, or administrators, or any of them, shall well and truly indemnify and save he may have, and is not broken if he be ousted by bettei title; Sawtell v. Pike, 20 Me (2 Applet ) 169. BONDS OR OBLIGATIONS. harmless the said C. D., his executors and ad- ministrators, from and against the said note (or ii.l. ., any and all damages, costs, charges, and ex- penses (and all actions or suits, whether groundless or otherwise), by reason of said note (or bill), and also deliver, or cause to be delivered up the same, when and so soon as the same shall be found, to be cancelled, then this obligation is to be void ; otherwise, to remain in full force. A. B. [Stal.\ E. F. \Seal.\ CONDITION INDEMNITY. To Indemnify Partners Having Indorsed for Afconi- utoO/ation, Against Liability Thereby. Whereas the said C. D. & Co. have, with- out consideration to them moving therefor, and solely for the accommodation of the above- bounden A. B., indorsed a promissory note made by (or a bill of exchange drawn by upon ), for dollars, bearing date the day of , and payable to (with interest), days after the date thereof. Now the condition of the above obligation is such: That if the above-bounden A. B. and B. A., their heirs, executors, and administrators, or any of them, shall well and truly pay, or cause to be paid, the said sum of dollars, for the pay- ment of which the said note (or bill) is so given, and the interest thereof, according to the tenor thereof, and in full discharge thereof, and indem- nify and save harmless the said C. D. and E. F., their executors and administrators, and each of them,* from and against any and all liability&by reason of said note (or bill), as well as against any and all suits, actions, damages, costs, charges, and expenses by reason thereof, then this obliga- tion is to be void ; otherwise, to remain in lull force. A. B. \Seal.\ B. A. [Seal ] CONDITION To INDEMNIFY A SURETY IN A BOND FOR PAYMENT OF MONEY. Whereas the above-named C. D., at the special instance and request of the above-bounden A. B., and for his debt, together with and as well as he, the said A. B , is held and firmly bound unto a certain E. F., of , in and by an obligation bearing even date herewith, in the penalty of dollars, lawful money, as aforesaid, conditioned for the true payment of (here recite the condition, of the previous bond ) : Now the condition of the above obligation is such, That if the above-bounden A. B., and his heirs, executors, and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the said E. P., his executors, administrators, or assigns, the said sum of dollars, with interest thereon at the rate of per cent, per annum, as aforesaid, on the day of (or, if the bond z't made payable at different times, say, at the several times limited in the saiil recited condition), according to the true intent and meaning of said condition, and in full discharge and satisfaction of said obligation, and shall indemnify and save harm- less the said C. D., his heirs, executors, and ad- ministrators, from and against any and all suits, actions, damages, costs, charges, and expenses, by reason of said recited obligation, then this obligation is to be void ; otherwise, to remain in full force. A. B. [Seal.] E. F. [Seal] CONDITION INDEMNITY. To Indemnify Tenant PH Paying Rent, When Title is in Dispute Whereas the above-named A. B. claims from the said C. D. rent of certain premises in (state where), to wit, dollars, due on the day of , and one E. F. also claims some title to said a-An agreement to indemnify partners against suits against them 'extends to suits against one of them, in a place where by law it is not necessary that a suit be against all the partners of a firm liable. Hill z>. premises, and to be of right entitled to said rents, or some part thereof; Now the condition of the above obligation is such : That if the above-bounden A. B., his heirs, executors, and administrators, or any of them, shall well and truly, at all times, indemnify and save harmless the said C. D., his heirs, executors, and administrators, from and against any and all actions, suits, damages, costs, and expenses for or by reason thereof; then this obli- gation is to be void ; otherwise, to remain in full force. A. B. [Seal.\ CONDITION LIFR, TO KEEP A PERSON DURING The condition of this obligation is such . That whereas the above-bound A. B., for ant 1 .''. in consideration of the sum of , to him in* hand paid by the above-named C. D. , hath agreed and undertaken to keep and maintain the said C. D., during his life; if, therefore, the said A. B. , his executors or administrators, shall from time to time, and at all times hereafter during the natural life of the said C. D., well and suffi- ciently maintain and keep, or cause to be well and sufficiently maintained and kept the said C. D., in the house of him. the said A. B., with meat, drink, clothes, and all other things neces- sary and convenient. CONDITION MAKRY, OR TO PAY A SUM OF MONEY. The condition of the above obligation is such : That if the above-bounden A. B. do, on or be- fore the day of , espouse and marry D. D., daughter of the said C. D., if the said D. D. will thereunto assent and the laws of this State (or Commonwealth) will permit the same; or, if it shall happen that the said A. B. shall not marry her as aioresaid, then if the said A. B. shall well and truly pay, or cause to be paid, unto the said D. D.,her executors, administrators and assigns, the sum of dollars on the day of next ensuing the said day of , above mentioned and limited for the said marriage, then this obligation is to be void ; otherwise, to remain in full force. [Signatures and seals.} CONDITION PAY OFF AND CANCEL A MORTGAGE. Whereas the above-bounden A. B. and W. B. his wife heretofore agreed to convey, and have this day conveyed to the said C. D. certain lands in (here briefly designating the premises), by a full warranty-deed ; and whereas said premises are subject to the payment of a mortgage, bearing date the day of , executed by the said and his wife, to , of the city of , and county of , for the purpose of securing the payment of the sum of dollars, in years from the day of the date thereof, with semi- annual interest, as secured by the condition of a bond, of like date therewith, executed by the said to the said , which said mortgage is a lien upon the premises aforesaid, and was re- corded in the office of the clerk of the county of , on the day of , at pages and , of book of mortgages, at o'clock m.. and upon which there is now remaining due and unpaid the said principal sum of dollars, with interest from the day of last past ; which sum the above-bounden A. B. agreed to pay, and to satisfy and cancel of record said mortgage. Now, therefore, the condition of the above obligation is such, that if the above-bounden A. B., his heirs, executors, and administrators, or either of them (or the above-bounden A. B. and W. R , or either of them, or their or either of their heirs, executors, or administrators), shall well and truly pay, or cause to be paid, unto the said (mortga- gee), or his executors, administrators, or assigns, all such sum and sums of money as are or may hereafter become due on the said bond and mort- gage, executed by the said A. B. and his wife as aforesaid, and forever satisfy and discharge the Packard, 5 Wend 375. b-This will render the obligors liable upon the bond in case the obligees become duly charged as mdorsers or acceptors of the accommodation paper. 13 192 BONDS OR OBLIGATIONS. same, saving the said C. D., his heirs, executors, administrators and assigns, harmless of and from all and all manner of costs, charges, and ex- penses in the premises, then the above obligation s to be void, otherwise, to remain in full force. [Signatures and stats.] Book. Sec ACCOUNTS; AUTHORITIES; COPYRIGHT; EVIDENCE ; MERCANTILE LAW. Book-Keeping. See title ACCOUNTS, ante. Books. See BOOK, above. Booty. See MILITARY LAW. Borough. See MUNICIPAL CORPORATIONS. Borrower. See ANIMALS; BAILMENTS. JBottomry. See MARITIME LAW. Kong- lit Note. See CONTRACTS ; SALES. Boundary. See EVIDENCE; REAL PROPERTY. Branch. See DESCENTS ; DESCENDANTS. Breach. See CONTRACTS ; COVENANTS ; TRUSTS. Breaking. See BURGLARY ; CRIMINAL LAW. Breaking Doors. See ARREST; CRIMINAL LAW; PRACTICE. Breath. See MEDICAL LAW. Bribe. See CRIMINAL LAW. Bribery. See CRIMINAL LAW. Bridge. See HIGHWAY. Brief. See PRACTICE. Brief of Title. See PRACTICE. Brokers. See AGENCY; BAILMENTS. Brothel. See CRIMINAL LAW. Brother. See PERSONAL RELATIONS. Brother-in-Law. See PERSONAL RELATIONS. Bruise. See MEDICAL LAW. Building. See REAL PROPERTY. Bulk. See CONTRACTS ; SALES. Bullion. See MONEY. Buoy. See MERCANTILE LAW. Burden of Proof. See EVIDENCE. Burglariously. See PLEADING. Burglary. See CRIMINAL LAW. Burial. See DEATH. Bushel. See WEIGHTS AND MEASURES. Business Hours. See BILLS OF EXCHANGE; BONDS AND NOTES; HOURS; TIME. By Estimation. See CONVEYANCES. By-Laws. See BAILMENTS; COMMON CARRIERS, ETC.; CORPORATIONS. Cabinet. See GOVERNMENT ; OFFICE AND OFFI- CERS. Cadet. See MILITARY LAW. Calendar. See CRIMINAL LAW ; TIME; YEAR. Calling the Plaintiff. See PRACTICE. Cnnon Law. See LAW. Canvass. See ELECTIONS; VOTES. Capias. See PRACTICE. Capita. See DESCENT; DESCENDANTS. Capital Crime. See CRIMINAL LAW. Capital Punishment. See CRIMINAL LAW. Capital Stock. See CORPORATIONS. Capitation. See TAXES. Capitulation. See MILITARY LAW. Captain. See MILITARY LAW. Caption. See PLEADING. Capture. See MILITARY LAW. Cards. See CRIMINAL LAW. Care. See BAILMENTS; DILIGENCE: NEGLIGENCE. Cargo. See BAILMENTS; MARITIME LAW. Carnal Knowledge. See CRIMINAL LAW; MEDICAL LAW : RAPE. Carrier. See BAILMENTS. Carrying Away. See CRIMINAL LAW. Cart. See PROPERTY, ETC.; WAGON. Carte Blanche. See SIGNATURE. Cartmen. See BAILMENTS ; COMMON CARRIERS, ETC. Case. See PRACTICE. Case Stated. See PRACTICE. Cash. See MONEY. Cash Book. See BOOK-KEEPING. Cashier. See BANKING. Castigatory. See PERSONAL RELATIONS ; SCOLD ; WOMEN. Castration. See CRIMINAL LAW. Casualty. See ACCIDENT. Castm Foederis. See INTERNATIONAL LAW. < usiis OiiiisHiis. See CASK; PRACTICE. Catching Bargain. See BARGAIN ; CONTRACTS. Cause. See PLEADING ; PRACTICE. Cause of Action. See PRACTICE. Caveat. See PATENTS ; PRACTICE. Caveat Emptor. See CONTRACTS; PEKSOXAL PROPERTY; REAL PROPERTY; SALES. Cede. See INTERNATIONAL LAW. Census. See GOVERNMENT ; INHABITANTS. Cepi. See PRACTICE. Cepit. See PLEADING ; PRACTICE. Certainty. See CONTRACTS ; PLEADING. Certificate. See PRACTICE. Certificate of Registry. See MARITIME LAW. Certified Check. See BILLS OF EXCHANGE; BONDS AND NOTES. Certiorari. See PRACTICE. Cession. See GOVERNMENTAL LAW. Cestui que Trust. See TRUSTS. Challenge. See CRIMINAL LAW. Chamber. See HOUSE ; REAL PROPERTY. Chamber of Commerce. See MERCANTILE LAW. Chambers. See PRACTICE. Champerty. See CONTRACTS ; CRIMINAL LAW. Chancellor. See OFFICE AND OFFICERS. Chancery. See COURTS; PRACTICE. Chapels. See REAL PROPERTY. Character. See EVIDENCE. Charge. See CONTRACTS; DEVISES; LIENS; PLEADING; PRACTICE. Charges. See COSTS ; PRACTICE. Charitable Uses. See GIFTS. Charities. See GIFTS. Charter. See RIGHTS. Charter Party. See AFFREIGHTMENT; CON- TRACTS. Chase. See ANIMALS. Chastity. See CRIMINAL LAW; SLANDER; SELF- DEFENCE. Chattel. See PROPERTY. Cheat. See CONTRACTS ; FRAUD. Check. See BILLS OF EXCHANGE; BONDS AND NOTES. Child. See DESCENT; DESCENDANTS; PERSONAL RELATIONS. Chirograph. See CONVEYANCES. Chose. See PERSONAL PROPERTY. Chose in Action. See RIGHTS. Christianity. See RELIGION. Church. See REAL PROPERTY. Circuit. See COURTS; PRACTICE. Circuity of Action. See ACTION; PRACTICE. Circumstances. See EVIDENCE. Citation. See AUTHORITIES; PRACTICE; PROCESS. Citizen. See PERSONAL RELATIONS. Civil Action. See ACTION; PRACTICE. Civil Commotion. See CRIMINAL LAW ; GOV- ERNMENT; INSURRECTION. Civil Death. See DEATH; PERSONAL RELA- TIONS. Civil Law. See LAW. Civil Obligation. See CONTRACTS; OBLIGA- TION; PRACTICE. Civil Officer. See OFFICE AND OFFICERS. Civil Remedy. See PRACTICE. Claim. See PROPERTY; RIGHTS. Claimant. See ADMIRALTY ; PRACTICE. Class. See PERSONAL RELATIONS. Clause. See ASSIGNMENTS ; BONDS; CONTRACTS- CONVEYANCES ; LAWS ; WILLS ; ETC. Clearance. See MARITIME LAW. Clearing House. See COMMERCIAL LAW. Clerical Error. See WRITINGS. Close Copies. See COPIES ; WRITINGS. Co-Administrator. See OFFICE AND OFFI- CERS ; PERSONAL RELATIONS. Co-Assignee. See OFFICE AND OFFICERS; PER- SONAL RELATIONS. Co-Executor. See OFFICE AND OFFICERS ; PER- SONAL RELATIONS. Coast. See REAL PROPERTY. Code. See LAW. Codicil. See WILLS. Coercion. See ACTS; CONTRACTS- CRIMINA. LAW. Cognizance. See PLEADING. Cognovit. See PLEADING. Cohabitation. See MARRIAGE. Coins. See MONEY. CONTRACTS. Collateral. See ASSURANCE-, CONSANGUINITY; KSTOPPHL; FACTS; ISSUE; KINSMEN; LIMITATION; SECURITY: WARRANTY. Collector. See OFFICE AND OFFICERS. Collesre. See SCHOOLS. Collision. See MARITIME LAW. Colloquiim. See PLEADING. Collusion. See CONTRACTS; FRAUD. Colonial T,aw. See LAW. Colony. See GOVERNMF.NT. Color. See PERSONAL RELATIONS: PLEADING. Color of Office. See OFFICE AND OFFICERS. Colt. See ANIMALS ; HORSE. Combination. See CRIMINAL LAW. Comity. See LAW. Commencement. See PLEADING. Commerce. See INTERNATIONAL LAW. Commercial Law. See LAW. Commissary. See MILITARY LAW. Commission. See AGENCY; BAILMENTS; COM- MON LAW ; CRIMINAL LAW ; PATENTS. Commissions. See AGENCY; CONTRACTS; PRAC- TICE ; SALES. Commitment. See PRACTICE. Committee. See LEGISLATION. Common. See REAL PROPERTY. Common \ssurances. See CONVEYANCES. Common Bar. See PLEADING. Common Bench. See COURTS. Common Carriers. See BAILMENTS. Common Carriers of Passengers. See BAILMENTS. Common Conrts. See PLEADING. Common Fishery. See FISHERY; REAL PROP- ERTY. Common Highway. See HIGHWAY ; REAL PROPERTY. Common ,aw. See LAW. Common Xiiisaticc. See CRIMINAL LAW. Common Pleas. See COURTS. Common Recovery. See PRACTICE. Common Schools. See SCHOOLS. Common Scold. See PERSONAL RELATIONS; WOMEN. Common Seal. See CORPORATIONS. Common Sense. See MEDICAL LAW. Communication. See CONTRACTS ; EVIDENCE. Community. See MARRIAGE. Commutation. See CRIMINAL LAW. Compact. See CONTRACTS. Company. See CORPORATIONS. Comparison of Handwriting. See Evi- KNCH ; WRITINGS. Compensation. See AGENCY; BAILMENTS; CONTRACTS; PRACTICE. Competency. See EVIDENCE ; WITNESSES Compilation. See COPYRIGHT. Complaint. See CRIMINAL LAW. Composition. See COPYRIGHT ; DEBTOR. Compound Interest. See INTEREST- MONEY Compounding-. See CRIMINAL LAW. Compromise. See CONTRACTS. Comptroller. See OFFICE AND OFFICERS. Compulsion. See ACTS. Concealment. See CONTRACTS ; INSURANCE. Conclusion. See PLEADING: PRACTICE. Conclusive. See EVIDENCE : PRESUMPTION Concubinage. See MARRIAGE. Condemn. See CRIMINAL LAW; SENTENCE Condemnation. See MARITIME LAW. Conditions. See COMMON LAW; CONTRACTS- DEVISES ; FEE : MARRIAGE. Conditional Sale. See FEH; LIMITATION- STIPULATION ; SALE. Condonation. See MARRIAGE. Confederacy. See CRIMINAL LAW; INTERNA- TIONAL LAW ; PLEADING. Confederation. See GOVERNMENT. Confession. See CRIMINAL LAW ; EVIDENCE Confession and Avoidance. See PLEAD- ING. Confessor. See EVIDENCE. -5 F^ast. 10 : 4 Gill & J. i ; 12 How. 126. b-4 Kas. 379. _ A contract is an agreement between two or more parties, for the doing or the not doing of some particu- lar thing." 4 Wheat. 197 : 2 Leon. 224, 22<; 20 Am Jour, i; Parson's Contr. Vol. i, p. 6- Id Vol n pp 95->97: 5 East. 16; 4 B. & Aid. 595; s Cranch. 142; Confidential Communications. Soa EVI- DENCE. Confirmation. See CONTRACTS. Confiscate. See GOVERNMENT. Conflict. See LAW Confusion. See GOODS; PERSONAL PROPERTY.- RIGHTS. Congregation. See CHURCH; PERSONAL Rs- LATIONS. Congress. See GOVERNMENT. Conjecture. Sec EVIDENCE. Conjugal Rights. See MARRIAGE. Conjunction. See PLEADING. Connivance. See CONTRACTS : MARRIAGE. Conquest. See INTERNATIONAL LAW. Consanguinity. See PERSONAL RELATIONS. Consent. See CONTRACTS : SALES. Conservator. See OFFICE AND OFFICERS. Consideration. See BAILMENTS; BILLS OP EXCHANGE ; BONDS AND NOTES ; CONTRACTS. Consignment. See BAILMENTS ; FACTORS. Consolidation. See PRACTICE. Conspiracy. See CRIMINAL LAW. Constable. See OFFICE AND OFFICERS. Constituted Authorities. See GOVERNMENT Constitution. See CONSTITUTIONAL LAW Constraint. See ACTS. Construction. See BILLS OF EXCHANGE ; Bowr.s AND NOTES; CONTRACTS; INSURANCE; PRACTICI : WORDS. Constructive. See ACTS; NOTICE. Consul. See INTERNATIONAL LAW; OFFICE AND OFFICERS. Consultation. See PRACTICE. Consummate. See MARRIAGE. Contagious Disorders. See HEALTH ; MEDI- CAL LAW. Contempt. See LEGISLATION ; PRACTICE. Contents Unknown. See BAILMENTS; BILL OF LADING. Context. See CONSTRUCTION ; CONTRACTS. Contingent. See DAMAGES ; ESTATE ; LEGACY REMAINDER ; USE. Continuance. See PRACTICE. Continiiando. See PLEADING. Continuing. See CONSIDERATION; DAMAGES. Contra, etc. See CONTRACTS ; PLEADING. Contraband of War. See INTERNATIONAI LAW. CONTRACTS. See AGENCY; APPRENTICESHIP.. ASSIGNMENT; BAILMENTS; BILLS OF EXCHANGE; BONDS AND NOTES; CONVEYANCES; PARTNERSHIP- SALES; SURETYSHIP; WARRANTY; ETC., ETC. AN AGREEMENT is a mutual contract in con- sideration between two or more parties.' A " contract" is "the agreement of two com. petent parties, about a legal and competent subject-matter, upon a mutual legal considera tion, with a mutuality of obligation." 1 * All contracts are divided into two classes: 1. SIMPLE CONTRACTS are those not of specialty or record. They are the lowest class of express contracts, and answer most nearly to our general definition of a contract. They are by parol (which includes both oral and written). The only distinction between oral and written contracts is their mode of proof. And it is inaccurate to distinguish verbal from written ; for contracts are equally verbal whether the words are written or spoken. the meaning of verbal being expressed in words. 2. SPECIALTIES are those which are un- der seal, as bonds, conveyances, deeds, and mortgages. They are not merely written, but 17 Mass. 122; 6 Conn. 8r. "A contract is an agree- ment, upon sufficient consideration, to do or not to do a particular thing." 2 Bl. Com. 446. A mental reserva- tion is of no effect, i Disney, 520. e-See 3 Burr. 1670; 7 T. R. 350, n ; it Mass. 27, 30 ; 5 Id. 299, 301 ; 7 Conn. 57 ; i Caines, 386. 194 CONTRACTS. tignerf, sealed, and delivered 'by the party bound. The solemnities connected with these acts, and the formalities of witnessing, gave, in early times, a character and importance to this class of contracts, which implied so much caution and deliberation (consideration) that it was un- necessary to prove the consideration, even in a court of equity. 6 Very little of this real solem- nity (except witnessing) now remains, and a scroll is substituted for the seal, though seals have in some States been abolished and wit- nessing rendered unnecessary. Still the dis- tinction with regard to specialties remains in- tact. When a contract by specialty is changed by a parol agreement, the whole contract be- comes parol. r The law makes no distinction in contracts, except between contracts which are, and con- tracts which are not, under seal.* Specialties include contracts of record, 11 as judgments, recognizances, and the like. These are the highest class of contracts. They are contracts entered into by the intervention of some public authority, and are witnessed by the highest kind of evidence, viz., matter of record. 1 "Agreement" is seldom applied to special- ties; "contract" is generally confined to sim- ple contracts ; and " promise " refers to the engagement of a party without reference to the Yeasons or considerations for it, or the duties of other parties..! An agreement ceases to be such by being put in writing under seal, but not when put in writing for a memorandum,* or as a simple contract. Conditional contracts are those which are to have full effect only in case of the happening of certain events or the existence of a given state of things. Executed, contracts are where nothing further "remains to be done by either party ; as, the sale and delivery of goods for a price paid. Executory contracts where something further is to be done in order to perform the contract ; as, the purchase of a horse to be delivered on payment of the price. Executory agreements are such as rest on articles, memorandums, parol, promises or un- dertakings, and the like, to be performed in the future, or which are entered into preparatory to more solemn and formal alienations of property. 1 An executed agreement always conveys a chose in possession, while an executory agree- ment conveys a chose in action only. Express contracts are where the terms of the contract are openly uttered or put in writing at the time of making. Implied contracts are those .which the law presumes the parties to have made, although the terms were not openly expressed. e-Plowd. 305 ; 7 T. R. 477 ; 4 B. & Ad. 652 ; 3 Bingh. in : i Foubl. Eq. 342, n. f-2 Watts. 451 ; 9 Pick. 298 ; 13 Wend. 71. Sf-Parsons' Contr. 6. h-i Parsons' Contr. 7. i-4 BfTComm. 465. j-3 Burr. 1670-1 : 7 T R. 350, n ; 5 Mass. 299-301 ; 7 Conn. 57 ; i Caines. 386. It-Dane Abr. e n. 1-Powell Contr. m-6 Scott, 761. ll-2 Bl. Coram. 444 : 2 T. R. 105 ; 7 Scott, 69 : i Nev & P. 633. o-Tayler Law Gloss. p-See Parsons' Contr. Vol. i, p. 8. q-a Kas. 135 ; 10 Ohio, 412-414. Thus, every one vrho undertakes any office, employment, or duty, impliedly contracts with his employers to do it with integrity, diligence, and skill ; and he impliedly contracts to do whatever is fairly within the scope of his em- ployment." 1 Implied promises, or promises in law, only exist where there is no express stipulation be- tween the parties touching the same matter ; n for a thing which is expressed invalidates that which otherwise might have been implied by intendment of law. Oral contracts are " simple contracts." Verbal contracts are " simple contracts." Written contracts are " simple contracts " or "specialties." The essentials of a legal contract are :P 1. CONSIDERATION, for this is in legal con- templation the cause of the contract. 2. SUBJECT-MATTER, the object, or what the parties to it propose as its effects. 3. PARTIES, for there can be no contract without parties. 4. ASSENT of the parties, without which there is no contract. The legal obligation of a contract consists in the right of either party to have it enforced against the other, or to recover compensation for its breach by due process of law.i There is no contract which the law will re- cognize and enforce, unless the parties to it have agreed to the same thing, in the same sense/ Thus where the defendants wrote to the plain- tiffs, offering them a certain quantity of "good " barley at a certain price, the plaintiffs replied, " Of which offer we accept, expecting you will give us 'fine ' barley and full weight." The court held that there was not a sufficient accept- ance to sustain an action for non-delivery of the barley.' So, if a person sends an order to a mer- chant to send him a particular quantity of goods on certain terms of credit, and the merchant sends a less quantity of goods, at a shorter credit, and the goods sent are lost by the way, the merchant must bear the loss, for there is no agreement, express or implied, between the par- ties. 1 At a sale by auction, every bid by any one present is an offer by him, and it becomes a contract as soon as the hammer falls, or the bid is otherwise accepted, but until it is accepted it may be withdrawn by the bidder;" but a buyer is discharged from a purchase made under " catching conditions. " T There is an apparent exception to this rule, when, for example, A. declares that he was nt understood by B., or did not understand B. in a certain transaction, and that therefore there is no bargain between them; and B. replies by showing that the language used on both sides r-i Sumner, 218 ; 2 Woodb. & M. 359 ; 7 Johns. 410; 4 i Wheat 225 ; 9 Port. (Ala.) 605 : 3 Cal. 147 : 5 M. & W. I 535 : '6 E. L. & E. 473 (S. C.) : u C. B. 954; 21 N. Y. 1 10 Smith) 40 ; 3 Met. (Ky.) 80 ; 3 T. R. 148 ; 23 Penn. | St 398. s-? M. & W. 535. t-j Johns. 534. n-3 T. B. I 1^8; 23 Penn. St. 308; 6 A. & E. 829 ; 16 Me. 17; 9 Pick. 441 ; 2 Fairf. 414 : 7 Cush. 485; 2 East. 116. v-2 Jur. 1078 : 4 Bing. N. C. 463 : 3 A. & E. 355 ; 2 Jur 29 : 4 Camp. 140. CONTRACTS. '95 was explicit and unequivocal, and constituted a distinct contract. Here B. would prevail. The reason is, that the law presumes that every person means that which he distinctly says. The first point is, to ascertain what the par- ties themselves meant and understood. But it must be their intention as expressed in the con- tract. Thus, if a contract spoke of " horses," it would not be possible for the court to read this word " oxen," although it might be made certain by extrinsic evidence that it was so in- tended." If the parties, or either of them, show that a bargain was honestly but mistakingly made, which was materially different from that in- tended to be made, it would be a good ground for declaring that there was no contract. 1 Fraud destroys all obligations and contracts into which it enters, and the law relieves the party defrauded. If both parties act fraud- ulently, neither can take advantage of the fraud of the other. If one acts fraudulently, he can- not set his own fraud aside for his own benefit. ABANDONMENT of a contract is only lawful when it will in no wise prejudice the rights of the other party, and this though there be no consideration, provided the act or work has been undertaken ; for though not required to do an act gratuitously, if a person undertakes it he is answerable if he does not fulfil his en- gagement. See BAILMENTS, GRATIS, above ; NUDUM PACTUM, below. ABATEMENT may always be made; that is, a less may be taken for a greater sum due, and will be a satisfaction of such larger sum, provided it carries with it an additional benefit. Thus a reduction may be made by a creditor for the prompt payment of a debt due him from another.? So with any other advan- tage or inducement. ACCESSORY CONTRACTS are made to assure the performance of a prior contract, either by the same parties or by others. Of these are mortgages, pledges, suretyship, etc. If the accessory contract is a contract by which one is to answer for the debt, default, or miscarriage of another, it must, under the stat- ute of frauds, be in writing, and disclose the consideration, either explicitly or by the use of terms from which it may be implied. 2 Such a contract is not assignable, so as to enable the assignee to sue on it in his own name." An accessory contract of this kind is discharged not only by the fulfilment or release of the principal contract, but also in any material change in the W-n Bl. 596-614: 16 C. B 420; 30 Eng. L. & Eq. 479; C. B. 1855; Eng. L. & Eq. 496; 47 Me. 530. x Adam's Eq. 160, et sey. ; 26 Beav. 285 ; 28 Id. 240. y- Weskett Ins. 7. se- 5 M. & W. 128 ; 7 Id. 510; 5 B. & Ad. 1109 ; i Bingh. (N. C.) 761 ; 15 Penn. St. 27 ; 20 Barb. 298 ; 13 N. Y. 232 ; 4 Jones (N. C.) 287. a-2i r Nev Pick. 140; 5 13 N. ^ Wend. 307. b-2 Nev. & P. 126 ; 9 Wheat. 680; i Eng. L. & Eq. i ; 3 Wash. 66, 70; 12 N. H. 13 Id. 240. C-2 Ves. Sr. Ch. 540; 2 White & T. 3 2( L. Cas.~707 ; 5 Ired. Eq. 91 ; 7 Hill N. V. 250 ; 3 Denio, !53; 28 Vt. 209. d-i3 N. H. 240; 2 5 Ohio, 510; 8 Me. 121. e-5 Bingh. (N. 512 ; 2 Wheat. McLean, . C.) 156 : 3 B. & C 605';" 5 B. & P. 419 ; Q Ala. (N. S.) 42; 2 Rich. (N.C.) 590; jo Clark & F. Ho. Cas. 936. f-8 TiMjnt. 208; 14 Barb. 123 ; 6 Cal, 24 ; 27 Penn. St. terms of such contract by the parties thereto, for the surety is bound only by the precise terms of the agreement he has guaranteed.* Thus, a surety will be discharged if the right of the creditor to enforce the debt be suspended for any definite period, however short; and a suspension for a day will have the same effect as if it were for a month or a year. But the surety may assent to the change and waive his right to be discharged because of it. d If the parties to the principal contract have been guilty of any misrepresentation, or even con- cealment, of any material fact, which, had it been disclosed, would have deterred the surety from entering into the accessory contract, the security so given is voidable at law on the ground of fraud. 6 So, the surety will be dis- charged should any condition, express or im- plied, that has been imposed upon the creditor by the accessory contract be annulled by him/ An accessory contract, to guarantee an original contract which is void, is void also.* It is a general rule that payment or release of the debt due, or the performance of a thing required to be performed by the first or princi- pal contract, is a full discharge of such acces- sory obligation. 11 And that an assignment of the principal contract will carry the accessory con- tract with it. 1 ACCIDENT. See title ACCIDENT, above. ACCORD is an agreement to receive some act or thing in satisfaction of a claim or injury.' A satisfaction agreed upon between the party injuring and the party injured, which when per- formed, is a bar to all actions upon this account. Accord is generally used in the phrase "Accord and satisfaction." k An accord must be legal. An agreement to drop a criminal prosecution as a satisfaction for an assault and imprisonment is void. 1 Satisfaction should proceed from the defend- ant. 10 Accord and satisfaction by a co-partner is a bar to an action against the others ; n and acceptance of satisfaction from one joint wrong- doer discharges the rest ; accord and satisfac- tion to one of several co-plaintiffs will be so to all.P It must be advantageous to the creditor ,* and he must receive an actual benefit therefrom which he would not otherwise have had. r Restoring to the plaintiff his chattels, or his land, of which the defendant has wrongfully dispossessed him, will not be any consideration to support a promise by the plaintiff not to sue 317; 6 Hill, N. Y. 540; 9 Wheat. 680; 17 Wend. 179, 422. ff-7 Humph. 261 ; see 27 Ala. ("N . S.) 291. h- Poth. Ob. i C. i S. i Act, 2 n. 14 ; 182, 186 ; see 8 Mass. 551 ; 15 Id. 233; 17 Id. 419; 4 Pick, ii, 8 Id. 422 ; 5 Met. Mass. 310 ; 7 Barb. 22 ; 2 Barb. Ch. 119 ; i Hill & D. 65; 6 Penn. St. 228; 24 N. H. 484; 3 Ired. 337. i- 7 Penn. St. 280 ; 17 S. & R. 400 ; 5 Cow. 202 ; 5 Cal. 515; 4 Iowa, 434; 24 N. H. 484. j-g Co. 79: 3 Bl. Comm. 15. It-2 Greenl. Ev. JS 28 ; Bac. Abr. Accord ; 5 Md. 170. 1-5 East. 294 ; see 2 Wils. 341 ; Cro. Eliz. 541. m-Cro. Elrz. 541 ; i Str. 24. 11-9 Co. 79 B. ; 2 East.ji?. 0-3 Taunt. 117; i Chit. PI. Co. Litt. 232, A . 8 T. R. 168; 12 East. 317; o Co. 79, B. ; 5 Id. 117, A.- 7 Vt. 320 : 2 Ohio, 90. p-s Co. 117. B. 0-5 East. 294 . see 2 Wils. 241 ; Cro. Eliz. 541. r-2 \V<*Us, 424; a Ala. 476; 3 J. J. Marsh, 497. 196 CONTRACTS. him for those injuries. 1 The payment of a part of the whole debt is not a good satisfaction, even if accepted ;' otherwise, however, if the amount of the claim is disputed" or contingent ; v and if the negotiable note of the debtor," or of a third person" for part, be given and received, it is sufficient; or if a part be given at a differ- ent place/ or at an earlier time, it will be suffi- cient ;* and, in general, payment of a part suffices if any additional benefit be received.* And the receipt of specific property, if agreed to, is suf- ficient, whatever its value ; b but both delivery and acceptance must be proved. The satisfaction must be a reasonable and complete satisfaction of the thing demanded, and operate as an extinguishment of the original cause of action. Therefore, acceptance of a less cannot be a satisfaction, in law, of a greater sum, unless there be a release or some consid- eration for the residue. 4 An accord that the defendant shall employ workmen in two or three days is bad. 8 An ac- cord to pay a less sum on the same or a subse- quent day is bad. f The performance of an uncertain accord will not aid the defect.* An accord without satisfaction is no bar to an action. The execution of the accord must be complete and perfect, 11 except where the new promise itself is a satisfaction for the debt or broken contract. 1 Generally, if the new promise be founded upon a new consideration, and is clearly bind- ing upon the original promisor, this is a satisfac- tion of the former claim,J and otherwise it is no satisfaction. 11 But even a promise, which would not itself be a satisfaction, may, if it be fully performed at the right time, and in the right way (and not merely tendered), become then a satisfaction. 1 If a new promise is executory, and not binding, it is no satisfaction until it be executed, and, although it is to be performed on a future day certain, the promisee may have his original action before the new promise be- comes due ; m but if it be a binding promise for a new consideration, performable at a future day certain, then the original right of action is suspended until that day comes; but if the s-Bac. Abr. Ace. A. ; Perkins, \ 749 : Dyer, 75 ; 5 East. 230; ii Id. 390; i Str. 426; 3 Hawks, 580; 2 Litt. 49: 5 Day, 360; i Root, 426; i Wend. 164; 3 Id. 66; 14 Id. 116. t-2 Greenl. Ev. \ 28 ; 2 Parsons Contr. 199; 4 Mod. 88; 3 Bingh. (N. C.) 454; 10 M. & W. 367 ; 12 Price, 183 ; I Zabr. 391 ; 5 Gill. 189 ; 20 Conn. 550; t Met. (Mass.) 276; 27 Me. 362, 370; 3913.203; Strobh. 203 : 15 B. Mon. 566. w-Cro. Eliz. 429 ; 3 M. &W. 651; 5 B. & Aid. 117: i Ad. & E. 106 ; 21 Vt. 223 ; 23 Id. 561 : 4 Gill, 406 ; 4 Denio, 166 : 2 Duer, 302; 12 Met. (Mass.) 551. V-H B. Mon. 451. w-is M. & W. 23. x-2 Met. (Mass.) 283; 20 Johns. 76: I Wend. 164 ; 14 Id. 116: 13 Ala. 353; 1 1 East. 390 ; 4 B. & C. 506. y-3 Hawks, 580 ; 29 Miss. 139. z-i8 Pick. 414. B-30 Vt. 424; 26 Conn. 392; 27 Barb. 485; 4 Jones, 518; 4 Iowa, 219. b-19 Pick. 273 ; 5 Day, 360. C-i Wash. C. C. 328 ; 3 Blackf. 354 ; i Dev. & B. 565 ; 8 Penn. St. 106; 16 Id. 450; 4 Eng. L. & Eq. 185. d- 5 East. 231 ; i Taunt. 526 : i Str. 426. e-4 Mod. 88. f-5 East. 230. |-3 Lev. 189; Yel. 184. h-T. Raym. 203; 2 Kebl^ 690, 332, 851, 534; 9 Rep. 796. ; Cro. Eli*. 40; T. Raym. 4=0 ; 2 Iowa, 553; 3 Johns. Cas. 43 : 5 Johns. 386; 8 Ohio, ^93 ; 7 Blackf 582 ; 2 Pike, 45: 23 Wend. 342-14 B. Mon. 457; i Gray, 245. 1-23 Vt. 426- J-Com. Dig. Accord B. 4 ; t 5- $ Ad. 328 ; 3 promise is not then duly performed, this right revives, and the promisee has his election, to sue on the original cause of action, or on the new promise, unless by the terms or the legal effect of the new contract the new promise is of itself a satisfaction and an extinction of the old one. Thus, where one takes a negotiable promissory note, on time, for money which is due or to become due, this note is conclusive evidence of an agreement for delay or credit, and no action can be maintained on the original cause of action until the maturity of the note ; if then the note is not paid, an action may be brought upon the note, or on the original cause of action, unless the facts show that the prom- isee took the note in payment, or the law im- plies it.P An agreement to cancel and release mutual claims, or to discontinue mutual suits, is a mutual accord and satisfaction ; and either party may rely on it as a bar against the further pros- ecution of the suit or claim by the other.'' If there be a new agreement, resting on suf- ficient consideration, and otherwise valid, to suspend a previous claim or cause of action, until the doing of a certain thing, or the hap- pening of a specified event, the action cannot be maintained on that claim in the meantime. To show that the accord and satisfaction were simultaneous, and consisting of the delivery of a certain thing, it must be proved, not only that the thing was delivered, but that it was received in satisfaction. 1 " But if property of the debtor came lawfully into the possession of the credi- tor, and they then agreed that it may be retained by him, and shall be in satisfaction of the debt, this is a good accord and satisfaction. 1 The accord and satisfaction must be advan- tageous to the creditor,* he must receive from it a distinct benefit, which otherwise he would not have had." If the promise be executed literally, or in form, but is rendered inoperative or worthless to the creditor, by the debtor's act or omission, it has no effect as an accord and satisfaction.* If an accord and satisfaction be made by a third party, and is accepted as satisfaction, it is Id. 701; lExch. 907: 3 Bing. (N. C.) 621 : 9 B. & C 850 ; 2 Pike, 209. li-ig Wend. 516. 1-Com. Dig. Ac- cord B. 4. m-Id. 11-23 Vt. 561 ; 8 Id. 141 : 2 B. & Ad. 328; i M. &W. 323; lExch. 601; 5 M. & W 289 ; 7 O. B. 71 ; 5 C. B. 622 ; 29 Eng. L. & Eq. 266; 3 Bing. (N. C.) 920; 5 T. R. 141 : 5 Tyr. 1079 : 2Cromp. M. & R. 704 ; 5 T. R. 513 ; 13 M. & W. 63. 0-2 Cromp. & J. 405; 5 Beav. 415; 2 Cromp. M. & R. 187. p-8 Pick. 522 ; 10 Id. 525 ; 6 Mass. 143 ; 12 Pick. 268 ; 2 Met. 168; 9 Id. 328; 22 Pick. 18; 5 Cush. 158; 2 Greenl. 121 ; 8 Id. 298 ; 18 Me. 249 ; 34^.324; Id. 4S5. Id. 560; 23 Id. 302 ; 37 Id. 419: 3 Fairf. 418 ; 31 Vt. 516; Id. 450. q-i Denio, 257; 12 Johns. 456; 10 Exch. 569; 20 Eng. L. & Eq. 429. r-i Wash. C. C 328; 3 Blackf. 354; 16 Q. B. 439; 4 Eng. L. & Eq 185 ; i Dev. & Bat. 565 ; 9 M. & W. 600 ; 8 Penn St. 106 ; 16 Id. 450 ; 38 Id. 147. s-C. B. 142. t-2o Conn 559: iN. J. 391; 4 Mod. 88; 3 Bing. (N. C.) 454 : ' Met. 276 ; 10 M. & W. 367 ; 12 Price, 183 : 27 Me. 362 ; Id. 370; 2 Strobh. 203; 5 B. & Aid. 117: I A. & E. 106; 3 M. & W. 651 ; Cro. Eliz. 429 ; 21 Vt. 223 ; 4 Gill. 406; 4 Denio. 166; 12 Met. 551; 18 Pick 414; i Hawks, 580. u-Preceding note; 2 Watts, 424 ; J. f. Marsh. 497; t Stew. 476. v-3 C. B. 157 ; Peakct CM 13; 3i 0l. 47- CONTRACTS. 197 ,-ufficint if the actual debtor look upon it as such. w An accord and satisfaction made before breach of contract is not a bar to an action for a sub- sequent breach. 1 ACQUITTANCES differ from releases in this, that the latter must be under seal.' An acquittance being a receipt in full, a discharge or release from a debt a writing which is evi- dence of the discharge bars all further de- mand, discharges the party from the engage- ment to pay, and is evidence of payment. See RECEIPTS, below. ACTS OR OMISSIONS. In all cases whatever, a promisor will be discharged from all liability when the non-performance of his obligation is caused by the acts or the fault of the other contracting party. 1 AFFIRMANCE is the confirmation of a voidable act by the party who is to be bound thereby.' It is express when the party declares his determination to fulfil the contract, b and im- plied from the acts of the party without any ex- press declaration. A mere acknowledgment that the debt existed, or that the contract was made, is not an affirmance. 4 There must be a direct nd unequivocal affirmance and substantially {though not in form) a promise to pay the debt, tfc fulfil the contract,' in order to bind the party. AFFREIGHTMENT. See MARITIME LAW. ALTERATION (a change in the lan- guage) of a contract operates as a discharge of it. If the alteration be by a stranger, it avoids an instrument, if it be material and the original words cannot be certainly restored, on the ground that it is no longer the instrument of the parties.' If the alteration be made by a party, it so far avoids the instrument that he Cannot set it up, even if the alteration be in words not material.* But if the alteration does not vary the meaning of the instrument, or does not affect its operation, and this can be cer- tainly shown, it will not render the instrument void. k Whether the alteration is material, is not a question of fact for a jury, but of law for the court, 1 and the burden of proof of the fact of alteration rests on the party alleging it ; the alteration being shown, the party claiming un- der the instrument is bound to explain the alteration.* See ERASURE, INTERLINEATION, below. APPRENTICESHIP. See that title. W-3 Wend. 66: i Stew 184. x-8 Exch 668; 2 Eng. L. & Eq 476; i El & Bl 295 ; 16 Eng. L & Eq. 236, i Lutw. 358; Cro. Tac 99; Id. 254; i Harris & J. 673; 1 Taunt. 428; 13 Hawks, 580. y-5 Poth. Ob. 781. Z- 5 Mass. 67; Com Dig. Conditions: L. (6) 4 Wend. 377; 4 Cowen. 36; 3 Hill, 570; 2 Jones L. 142; Id. 46. -As distinguished from ratification and confirmation, see i Parsons Contra. 243. b-Dudl. 203. C-i<; Mass. 220; see 10 N. H. 194; n S.& 1^.305; i Parsons Contr. 243; Sharsw. Bl. Comm. 466, n.io. d-io N. H. 561: 2 Esp 628; i Bailey, 28 : 9 Conn. 330: Dudl. 203. e-3 Wend. 479 ; 4 Day, 57 ; 12 Conn. 550 ; 8 N. H. 374 ; 2 Hill, N. Y no; 19 Wend. 301 ; i Parsons Contr. 243 ; Bing. Inf 69 f-Pigott's Case, n Rep. 27; Cro. Eli'z. 626. ii M. & W. 778; 13 Id 343: 4 T. R. 320 ; 2 H. Bl 141 : 3 Ellis & B. 683 ; 15 Eng L. & Eq 123 ; 5 Ellis & B 82 ; 32 Eng. L. & Eq 162. 15 East 29/5^ 8. 8i ; 6 Est. 309 ; * M. & W. 809 ; i Jones, 109 ; 10 ALTERNATIVE. In contracts a party frequently has the choice of which of several things, of different times, modes, qualities, quantities, etc., and other options in perform- ance. As to the effect of alternative stipula- tions see PAYMENT, PERFORMANCE, TENDER, TIME, etc., below. AMBIGUITY, duplicity, indistinctness, and uncertainty of meaning in the expression and terms in a written instrument should always be avoided ; and it may be stated as a general rule that simplicity and clearness are the best evidences of the honesty, fairness, and skill of the contracting parties. Latent ambiguities are those which arise from some collateral circumstance or extrinsic matter in cases where the instrument itself is sufficiently certain and intelligible, and as such they may be explained by extrinsic evidence. 1 Patent ambiguities are those which appear on the face of the instrument : that which occurs when the expression of a writing is so defective that a court, being obliged to put a constniction upon it, placing itself in the situation of the parties, cannot ascertain therefrom the parties' intention. Also such expressions as would be found of uncertain meaning by persons of competent skill and information. Patent am- biguities cannot be explained by extrinsic evi- dence, but renders the instrument inoperative as far as they extend." ANTICIPATORY AGREEMENT. See DAMAGES, below. APPORTIONMENT. A contract is ap portionable when the amount of consideration to be paid by the one party depends upon the extent of performance by the other. When parties enter into a contract by which the amount to be performed by the one, and the consideration to be paid by the other, are made certain and fixed, such contract cannot be ap- portioned. Thus, if A. and B. agree together that A. shall enter into the service of B. and continue for one year, and that B. shall pay him therefor the sum of one hundred dollars ; and A. enters the service accordingly, and continues half the year, and then leaves, he will not be entitled to recover anything on the contract* But if one party is prevented from fully per- forming his part of the contract by the fault of the other party, the party thus in fault cannot be allowed to take advantage of his own wrong Conn. 192 : 6 Cowen, 746 ; 8 Id. 71 ; 8 Mo 235 : 6 Ala. 707; 2 Barb. Ch. 119 ; 3 Barb. 404 ; 15 Johns. 293 . i* Cush. 6r ; 39 Penn. St. 388. g-Pigott's Case, n Rep. 27; 8 Cowen, 71 ; 2 Halst. 175; 2 C. B. 181 ; 13 Ohio St. 364: 8 N. H. 139; 2 Id. 543; 10 Cowen, 192; n Iowa, 465. h-9 M. & W. 469 ; 5 Mass. 540 ; 6 Id. 519 ; 15 Pick. 230; 20 Vt. 217; 3 Ohio St 445, 13 Id 364; ii Iowa, 465; 10 Conn. 192; 8 N. H. 139; 2 Id. 543; a Halst 175 : 8 Cowen, 71 : Pigott's Case, n Rep. 27. i-4 How. (Miss.) 231 : 2 N. H. 543 ; i Id. 95 ; 13 Pick. 165 ; 2 Fairf. 115; 35 Pcnn. St. 80. j-Davisz>.. Jenny, i Met. 221. k-6Cush. 314; 9 Penn. St. 186; n N. H. 395 ; 13 Id. 385 ; 2 La. 290; 3 Harr. Del. 404; 8 Miss. 414 ; 17 Id. 375 ; 7 Barb. 564 ; 6 C. & P. 273 ; 7 Ad. & E. 444 ; 8 Id. 215 ; 2 Man. & G. 890, 909. l-i Greenl. Ev. 301. m-4 Mass. 205 : 4 Cranch, 167; i Greenl. Ev. $J 292-300. n-4 Mass. 205 ; 7 Cranch, 167; Jarman Wills, 367. o-i Swaat. 357. 198 CONTRACTS. and screen himself from the payment of what has been done under the contract.* So, too, if one party, without the fault of the other, fails to perform his side of the contract in such a manner as to enable him to sue upon it ; still, if the other party has derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything. 1 ARRANGEMENTS between creditors ami debtors not tainted by fraud, agreed to by all parties, and carried out in good fr .will be binding. It must have been scented to by all parties. Settlements of this kind, where it is sought to avoid litigation and loss, are favored by the law, and result more satisfactorily than the usual forms of assignment. The prevention of litigation is not only a suf- ficient but a highly-favored consideration, 1 " and no investigation into the character or value of the different claims submitted will be entered into for the purpose of setting aside a com- promise, it being sufficient if the parties enter- ing into the compromise thought at the time that there was a question between them.' Arrangements between partners themselves cannot limit or prevent their ordinaiy responsi- bilities to third persons, unless the latter assent to such arrangements.* But where the creditor has express notice of a private arrangement be- tween the partners, by which either the power j of one to bind the firm, or his liability on part- nership contracts, is qualified or defeated, such I creditor will be bound by the arrangement." ' The act or contract of one partner, even in a | transaction purely of a partnership nature, does i not bind the firm, if the creditor has express j notice from the other partners that they will not ! consider themselves responsible/ for the author- ity of one partner to bind the firm is only im- plied; and no one can become the creditor of another against his express and declared will. w ARTIFICES, cheats, finesse, frauds, strat- agems, and tricks, though in their very nature false, must also be fraudulent in order to ren- der the party guilty of them responsible to the other for damages. See CONCEALMENT, FRAUD, MISREPRESENTATION. ASSENT. There is no contract unless the parties thereto assent ; and they must assent to the same thing, in the same sense.* " There p-8 Bing. 14 ; 15 O. B. 576 ; 10 Barr, 831 : q Met. 577 ; 2 Blackf. 167 ; i Gillman, 92; 4 Id. 319; 5 Id. 298; 21 Vt. 17: i Denio, 317. q-o B. & C. 386; 10 Id. 441 ; 5 Id. 378; iSPick. 555; 7 Pick. 181 ; 8 Id. 178; 14 Mass. 282 ; 19 Pick. 528 ; 13 Met. 42 ; i Gray, 282 ; 7 Greenl. 76 ; 13 Johns. 94 ; 21 Vt. 301 : 4 Taunt. 745 ; 2 Cromp. & M. 214 : i Moody & R. 218 ; 3 Taunt. 52 ; 9 B. & C. 92 ; 2 S. & Marsh, 585. r-i Ves. Sen. 444 ; i Ch.-inc. 158: i Atk. 3; 17 Pick. 470: 4 Id. 507: Co. 29; E. L. & E. 429, S. C. ; 10 Exch. 569 ; Com. Dig. A. i, I!, r : 2 Strob. Eq. 258; 2 Mich. 145; i Watts, 216; Add. -/>; 2 Penn. St. 531 ; 6 Munf. 406; i Bibb, 168 ; 2 H. 4.-* : 4 Hawks. IT ; 6 Watts, 311 ; 14 Conn. 12 ; i W. & S. 456; 4 Met. 270. 8-21 E. L. & E. 199; 6 Monr. 91 : 2 Rand. (Va.)4 4 2; 5 Watts, 259 ; ai Cal. 122. t-C"!l- yer Partn. g 386 : 26. & Aid. 679; 3 Kent Com m. 41 : 5, Mass. C. C. 187, 188 ; 5 Pet. 129 ; 3 B. & C. 427. m- Collyer Partn. j> 387; .'2 N. H. 275; 4lred. 129; 38 N. H. 287 : 6 Pick. 372 ; 4 Johns. 251 ; 5 Conn. 597, 598 ; i Camp. 404; 5 Browu Part. Cas. 489; i Lindley Partn. 6o */ * AUCTIONEERS ; SALES. AUTHORITY. See AGENCY ; AUTHORITY. AWARD. See AGENCY ; ARBITRATORS. BAILMENTS. See that title. BARGAIN CATCHING. A merely hard bargain is not a ground for relief in law. But see CONCEALMENT; CONSIDERATION; FRAUD; INADEQUACY; MISREPRESENTATION; below. BARTER is a contract by which parties exchange goods for goods. It differs from a sale; a barter being always goods for goods, while a sale is of goods for money, or for money and goods. In a sale there is a fixed price, in a barter there is not. BILL OF EXCHANGE, ETC. See that title. BILL OF LADING. See BAILMENTS; CAR- RIERS; NOTICE. BILL OF SALE. See SALES. BINDING OUT. See APPRENTICESHIP. BIPARTITE is of two parts. It is a term used in CONVEYANCING, which see. BLANKS. When a blank (a space left in a writing which is to be filled up with one or more words to complete the sense) is left in a written agreement which need not have been reduced to writing, and would have been equally binding whether written or not, it is presumed in an action for the non-performance of the contract that parol evidence may be admitted to explain the blank. A blank may be filled by consent of parties, and the instrument will remain valid,' though not where the blank is in a part material to the operation of the instru- ment as an instrument of the character which it purports to be,& at least without a new execution. 11 C-Hutcheson vs. Blakeman, 3 Met. (Ky.) 80. d-3 P. Wms. 254 : 2 Ves. Ch. 454; i Ves. & B. Ch. Sr. 362 ; i A. K. Marsh. 146; 17 Pick. 373. 6-3 Campb. 232. f- Cro. Eliz. 626; i Ventr. 185; n M. & W. 468; i Me. ions' Contr. 229. i-8 Johns. 446; 12 Id. 320: 2 Johns. Ch. 35. j-2 Miles, 229. k-5 Moore, 242; i Leon. $2; BON A FIDE. The law requv,. .Jl per sons in their transactions to act in good faith ; and a contract where the parties have not acted bona fide (in good faith, honesty, purity of in- tention, as distinguished from mala fide, or bad faith) is void at the pleasure of the innocent party. 1 If a contract be made with good faith, subsequent fraudulent acts will not vitiate it, although such acts may raise a presumption of antecedent fraud, and thus become a means of proving the want of good faith in making the contract.! BREACH of contract, or the violation of an obligation, engagement, or duty, may be of any of the terms, or of the entire contract. A continuing breach is either where the condition of things constituting the breach continues during a period of time, or where the acts con- stituting the breach are at brief intervals re- peated." See PLEADING. CARRIAGE. See BAILMENTS; CARRIERS. CATCHING. See BARGAIN, above. CERTAINTY, accuracy, and distinctness of statement should be observed in every con- tract. If a contract be so vague in its terms that its meaning cannot be certainly collected, and the statute of frauds precludes the admissi- bility of parol evidence to clear up the diffi- culty,' or parol evidence cannot supply the de- fect, the contract will be of no effect. m But it is a maxim of law thst " that is certain which may be made certain."" For example, if a man sells the oil in his store at a certain price per gallon, although there is uncertainty as to the quantity of the oil, yet inasmuch as it can be ascertained, the maxim applies, and the sale is good. CHAMPERTY AND MAINTEN- ANCE. Champerty is a bargain with the plaintiff or defendant in a suit for a portion of the land or other matter sued for, or claimed, in case of a successful termination in favor of the party for whom the champertor undertakes to carry on the suit at his own expense. A common instance of champerty is where an attorney agrees with his client to collect or en- force by suit a particular claim or claims in general, receiving a certain proportion thereof,' or a percentage thereon. - Maintenance is the intermeddling of a stranger in a suit for the purpose of stirring up strife, and continuing the litigation. There are; however, many acts in the nature of main- tenance which are justifiable from the circum- stances under which they are done. i. Because the party has an interest in the matter or thing in variance. r 2. Because the party is of kindred or affinity, as father, son, husband, wife, heir i Salk. 141 : Holt. 178: 2 Ld. Raym. 1125. 1-5 B. & C. 63. m-i Russ. & M. 116; i Ch. Pr. 123. n-Co Litt. 43. o-Story Eq. $> 240-256 ; Mitf. Eq. PI. (Jerem. Ed.) 41; Cooper Eq. PI. 5; Wigram Disc. 77. p-o Ala. (N. S.) 755 ; 17 Id. 305 ; i Ohio, 132 ; 4 Dowl. Pi. Cr. 304. q-4 T. R. 340; 4 Q. B. 883 ; 5 B. & C. 188; 6 Bing. 299; 4 Dowl. 18 ; 2 Mylne & K. 500; u M. & W. 675 ; 13 Met. 362 ; 3 Johns. Ch. 508 ; 3 Cowen. 647; i Ohio, 132 ; 13 Id. 167; 15 Id. 156, 71;. r-t7Ala. (N. '; 9 Met. Mass. 489; a Pish. Cr. U m. 200 CONTRACTS. apparent, etc." 3. Because the relation of land- lord, tenant, master, servant, etc., subsists be- tween the party to the suit and the person assisting him. 4. Because the money is given in charity.' 5. Because the person assisting the party to the suit is an attorney or counsellor, and the assistance strictly professional for a lawyer is no more justified in giving his client money than another man." Contracts growing out of maintenance are void. T Champerty differs from maintenance chiefly in this, that in champerty the compensation to be given is a part of the matter in suit, or some profit growing out of it, w while in simple main- tenance the question of compensation does not enter into the account.* Champerty is treated as the worse offence ; for by this a stranger supplies money to carry on a suit on condition of sharing in the land or other property gained by it. Contracts of this fort are set aside both in law and equity.? CHANGE. See DEVIATION, below. CHARTER PARTIES. See FORMS, below. CHECK. See BILLS OF EXCHANGE, BONDS I.ND PROMISSORY NOTES, above. CHOICE. See ELECTION, below. CLAUSES are parts of an instrument of Writing. In the forms hereafter given they are so framed that they may be readily shifted from one form to another without change. Being separate paragraphs, each containing a single, certain, and material part of the agree- ment, they will assist greatly the precision and clearness of the instrument, and render it less liable to confusion, doubt, and misconstruction. COERCION. Direct or positive coercion takes place when a man is by physical force compelled to do an act contrary to his will. Implied coercion exists where a person is legally under subjection to another, and is induced in consequence of such subjection to do an act contrary to his will. As will is necessary to the commission of a crime, or the making of a contract, a person coerced into either has no will on the subject, and is not responsible. 1 The command of a superior to an inferior,* of a parent to a child, b of a master to his servant, or a principal to his agent, may amount to coercion. COLLUSION and fraud of every kind vitiate and render void all acts which are in- fected with them, d and any agreement between S-Bac. Abr. Maintenance; see n M. & W. 675; 9 Met. Mass. 489 : 13 Id. 262 ; i Me. 292 ; 6 Id. 361 ; n Id. in. t-i Bail. (S. C.) 401. u-Russ. Cr. 179; Bac. Abr. Maintenance; Broke. Abr. Maint. V-n Mass. 549 ; 5 Humph. 379 : 20 Ala. N. S. 521 ; 5 B. Mon. 413 ; * ' " r-i6Ala. 488; 24 Ala. (49 ; 5 Humph. 379 : 20 Ala. P ; Johns. Ch. 44 ; 4 Q. B. 883. N. S.) 471; 9 Met. Mass. (N. S.) 471; 9 Met. Mass. 489; i Jones Eq. 100; 5 Johns. Ch. 44; 4 Liu. 117. x-Bishop Cr. L. <> in. y-7 King. 369 ; i Pick. 415 ; g Met. 489 ; 9 Ala. 755 ; 2 Sanf. 141; 7 Porter, 488; i Ham. 58; 4 Litt. 417; 6 Dana. 479; 4 Id. 172. -i East. PI. Cr. 225: 5 Blackf. 73; i Call. 86; 5 Q. B. 279 ; i Dav. & M. 367. The law upon the responsibility of married women for crime is fully Mated in i Bennett & H. Lead. Cr. Cas. 76-87. a-i Wash. C. C. 209, 220; 12 Met. (Mass.) 56; i Blatch. C. C. 540; 13 How. 115. b-Broom. Max. (20! Ed.) n. C- Mo. 246; 14 Id. 137, 340; 3 Cush. 279; ii Met. iMas.) 66 ; 5 Miss. 304 14 Ala. 565 ; 22 Vt. 32 ; 2 Denio, two or more persons to defraud another of his rights by the forms of law, or to obtain any object forbidden by law, falls within this rule. COMMISSION is the compensation al- lowed agents, factors, executors, guardians, receivers, trustees, etc., and such persons as manage the affairs of others, in recompense for their services. The right to such allowance may either be the subject of a special contract, may rest in an implied contract to pay as much as the services are worth, or may depend upon statutory provisions.' The right does not getv erally accrue till the completion of the services, and does not then exist unless proper care, skil and perfect fidelity have been employed,* and the services are such as have not been illegal or against public policy . h The amount of such com- missions is generally a percentage on the sums paid out or received. When there is a usage of trade at the particular place or in the particular business in which the agent is engaged, the amount of commission allowed to auctioneers, brokers, and factors is regulated by such usage.' In case a factor guarantees the payment of the debt he is entitled to a larger compensation (called a del credere commission) than is ordin arily given for the transaction of similar busi- ness, where no such guaranty is made.J The amount which executors, etc., receive is, in general, fixed by statute, subject to modification in special cases by the proper tribunal. 11 COMPROMISES (agreements made be- tween two or more parties, as a settlement of matters in dispute between them) and settle- ments are sustained by the law; 1 they are also highly favored. m The amount in controversy must, however, be uncertain. There can be no compromise of a criminal offence." COMPULSION. Acts done under com- pulsion are not, in general, binding upon a party ; but when a man is compelled by lawful authority to do that which he ought to do, that compulsion does not affect the validity of the act; as, for example, when a court of compe- tent jurisdiction compels a party to execute a deed, under the pain of attachment for con- tempt, the grantor cannot object to it on the ground of compulsion. But if the court con - pelled a party to do an act forbidden by law, or had not jurisdiction over the parties, or tlie subject-matter, the act done by such compul- sion would be void. 341 ; 14 Johns. 119. d-See Shelf. Marr. & D. 415, 450; 3 Hagg. Eccl. iv>, 133; 2 Greenl. Ev. 51; Boso. Abordagr. e-7 C. & P. 584 : 9 Id. 559 : 8 Smith. w ; Sued. Vend. Auctioneer, f-i C. & P. 384; 4 Id. 280; 7 Singh. 99; see 10 B. & C. 438. ^-3 Camp. 451 ;'i Stark. 113; 9 Bingh. 287: 12 Pick. 328. h-i C'ampb. 547; 4 Esp 179; 5 Taunt. 521; 3 B. & C. 639: 11 Wheat. 258. 1-3 Chitty Comm. L. 221 ; i Parsons Contr. 84, 85 ; Story Ag. 326. j-Paley Ag. 88, et leg.; see title AGENCY. It-i2 Barb. 671 ; Edw. Receivers, 176, 302, 643. 1-2 Strobh. Eq. 258; 2 Mich. 145; i Watts. 216; 2 Penn. St. 531. nt-6 Munf. 406; i Bibb. 168; 2 Id. 448; 4 Hawks. 178 ; 6 Watts, 321 ; 14 Conn. 12 ; 4 Met. (Mass.) 270 ; see also 21 Eng. L. & Eq. 199 6 Monr. 91 ; 2 Rand. 442 ; 5 Watts, 259. n-2 B. & Ad 889; i Ad. & E. 106, and see 5 Pet. 114: 21 Penn. St y7 ; 20 Mo. 102 : 13 Pick. 284 : 6 Bing. (N. C.) 62 ; 3 . & W. 648 ; t Bour. lntt. 798. o-i Chitty. Pr. 17. CONTRACTS. 201 CONCEALMENT is the improper con- cealment of any fact or circumstance by one of the parties to a contract from the other, which in justice ought to be known. Conceal- ment when fraudulent avoids the contract, or renders the party using it liable to the damage arising in consequence thereof.? But it must have been such facts as the party is bound to communicate.'' A concealment of extrinsic facts is not, in general, fraudulent, although peculiarly within the knowledge of the party possessing them. 1 " And the rule against the concealment of latent defects is stricter in the case of personal than of real property. 1 Where there is confidence reposed concealment be- comes more fraudulent.' CONDITIONS, limitations, qualifications, er restrictions which modify or destroy the original act or contract with which it is con- nected, and clauses having for their object the suspension, recission, or modification of the original agreement, should always be included and appear in the contract, for when the parties at last reduce their agreement to writing, it is looked upon as the final consummation of their negotiations, and the exact expression of their purpose, and that which is not incorporated in their written contract will be considered as in- tentionally rejected. Conditions are affirmative where they are positive; collateral where they require the do- ing of a collateral act ; T compulsory where they expressly command a thing to be done ; con- sistent when they agree with the other parts of the contract ; copulative when composed of dis- tinct parts or separate conditions, all of which must be performed they are generally condi- tions precedent, but may be conditions subse- quent ; w covert when implied ; disjunctive when they require the doing of several things if a condition become impossible in the cop- ulative it may be taken in the disjunctive ; x express when created by express words ;J im- plied when the law supposes the parties to have had them in mind at the time the transaction was entered into, though no condition was ex- pressed ;* impossible wherein they cannot be performed by natural means; lawful when al- lowed by law ; positive when the event or act contemplated is required to happen ; possible when they may be performed ; precedent when they must be performed before the act or obli- igation takes effect they are to be distinguished from subsequent conditions ; repugnant when inconsistent with, and contrary to, the original p-7 Met. (Mass.) 252 ; 16 Me. 30; 2 111. 344 ; 3 Bar- new. & C. 605 ; 10 Clark & F. Ho. L. 934. q-3 Eng. L. & Eq. 17 ; 3 Conn. 413 ; 5 Ala. (N. S.) 596 : i Yeates, 307; 5 Penn. St. 467; 8N. H. 463 ; i Dev. 351 : 18 Johns. 403 ; 6 Humph. 36. r-2 Wheat. 195 ; i Baldw. C. C. 331 ; 14 Barb. 71 ; Ala. (N. S.) 181 ; but see i Miss. 72 ; i Swanst. 54 : 4 M'Cord, 169. s-6 Woodb. & M. C. C. 358: 3 Campb. 50*; 3 T. R. 759. t-9 B. &C. 577 ; 4 Met. (Mass.) 381 ; see generally 2 Kent Comm. 482. u-2 W. Bl. 1249 ; 15 C. B. 667 ; 29 Eng. L. & Eq. 226 ; it Barb. 147 : i Blatch. C. C. 467 : ^ Wilson, 275 ; 13 Vt. 231 ; Id. 681; i B. &C.634; i Caines, 155 ; i Johns. 414; 4 Taunt. 786. v-Shepp. Touchst. 117. w- PoircU Dev. C- '5- *-Vinc- Abr. Qm4. (S. b.) (Y. b. act ; restrictive when they impose a restraint ; b single when they require the doing only of a single thing; subsequent when their effect is not produced until after the commencement or completion of the obligation the condition in a mortgage defeating the conveyance is a com- mon example; unlawful when forbidden by law ; void when of no validity or effect ; void- able when they require the confirmation or rat ification of one or more of the parties. Conditions must be made simultaneouslj with the original contract or conveyance! though, in the absence of a statute to the cor* trary, they may be by a separate instrument of writing. They are then considered as consti- tuting one transaction with the original.* Un- lawful conditions are void. Any words suitable to indicate the intention of the parties may be used in the creation of a condition. " On con- dition " is the common form of commencement. The words of condition need be in no particular place in the instrument. 11 Conditions which defeat or destroy are strictly construed, while those which limit, extend or vest are liberally construed.' The condition of an obligation is said to be the language of the obligee, and for that reason is construed liberally in favor of the obligor/ But when- ever an obligation is imposed by a condition the construction is to be favorable to the obligee.* Where conditions are liberally construed a strict performance is required, and a less exact or strict performance is allowed where-there is a strict construction of the condition. Perform- ance should be complete and effectual. 11 An inconsiderable casual failure to perform is not non-performance. 1 Any one who has an inter- est in the matter may perform the condition, but a stranger will derive no benefit from perform- ing it.J Conditions precedent can generally be exactly performed; and equity will not gen- erally interfere to avoid the consequences of non-performance.* But in cases of conditions subsequent equity will interfere where there is even a partial performance, or where there is only a delay of performance. 1 Generally, where no time of performance is limited, he who has the benefit of the contract may perform the con- dition when he pleases, at any time during his life, and need not do it when requested." But if a prompt performance be necessary to carry out the will of a testator, the beneficiary will not have a lifetime in which to perform the con- dition." In this case no previous demand is 2.) jr-Co. Litt. 328. z-Shepp. Touchst. 117. a-Al! conditions must be precedent or subsequent. fo-Shepp. Touchst. 1 18. c-sS.&R. 375; 7 Watts &S. 335; 3 Hill, 95; 3 Wend. 208; 10 Ohio, 433 ; IoN.fl.4H; 2 Me. 132; 7 Pick. 157; 6 Blackf. 113. d-i T. R. 645; 6 Id. 668. e-Crabbe R. Prop, g 2130; 17 N. Y. 34 ; 4 Gray, 140; 35 N. H. 445 : 18 111. 431 ; 15 How. 323. f Co. Litt. 42, a., 183, a.; 2 Parsons Contr. 22; Shepp. Touchst. 375; 6 Dyer, 14 b., 17 a.; i Johns. 267. g-i Sumn. C. C. 440. n-i Rolle Abr. 425. 1-6 Dana, 44, 17 N. Y. 34. j-io S. & R. 186. lt-3 Ves. Ch. 89 ; i Atk. Ch. 361 ; 3 Id. 330; West, 350; 2 Brown Ch. 431. 1-Crabb, R. Rop. g 2160; 4 Ind. 428; 26 Me. 525. m- Plowd. 16 Co. I4tt. 208, b. n-5 S. & R 384. 202 CONTRACTS. necessary.* Be*i even then a reasonable time is allowed.' If a place be agreed upon, neither party alone can change it, but either may with the consent of the other.i Non-performance of a condition which was possible at the time of its making, but which has since become impossible, is excused if the im- possibility is caused by act of God, r or by act of law, if it was lawful at its creation ; or by act of the party, as when the one imposing the obligation accepts another thing in satisfac- tion, or renders the performance impossible by his own default.' If the performance of one part becomes impossible by act of God, the whole will, in general, be excused." CONFIDENCE. See TRUST, etc., below. CONFIRMATION is a contract making firm and unavoidable that which was before voidable. When a party, acting for himself or by a previously authorized agent, has attempted to enter into a contract, but has done so in an informal or invalid manner, he may confirm the act and thus render it valid. It will then take effect as between the parties from the making of the original contract/ To make a valid confirmation the party must be apprized of his rights, and where there has been a fraud in the transaction he must be aware of it, and intend to confirm his contract.* A confirmation may make a defeasible or voidable contract good, but cannot strengthen or make valid a void con- tract.* See INFANTS, PERSONAL RELATIONS. CONSENT. See ASSENT, above; SALES, below. CONSIDERATION is the material cause which moves a contracting party to enter into a contract.' The price, motive, or matter of in- ducement to the contract, a compensation or equivalent whether it be that which is paid or otherwise or the inconvenience suffered by the party from whom it proceeds. Consideration is concurrent where it arises at the same or when the promises are simulta- neous; continuing when it is executed only in part ; equitable when a moral consideration ; executed when received Defore the obligor made the promise ; executory when the under- taking is for future performance; good when of blood (kinship), natural affection, natural duty, generosity, prudence, and the like ; x gra- O-sS.&R. 385. p-i Rolle Abr. 449. q-i Rolle, 444; nVt. 612; 3 Leon, 260; see PERFORMANCE, be- low, r-io Pick. 507. 8-4 Monr. 158 ; i Penn. St. 495. 1-21 Pick. 189 ; i Paine C. C. 652 ; 6 Pet. 745 ; i Cow. 339. a-i B. & P. 242 ; Cro. Eliz. 280; 5 Co. 21 ; i Ld. Raym. 279. v-See BOUT. Inst. n. n., 2067-2069. w- See i B. & B. Ch. Ir. 353 ; a Sch. & L. 486; 12 Ves. Ch. 373 ; i Id. 215 ; i Atk. Ch. 301 ; 8 Watts, 280. x- Co. Litt. 295. y-2 BI. Cora. 443. z-2 Johns. 52 ; 7 Id. :6 ; 10 Id. 293; 2 Bail. 588 ; i M'Cord, 504 ; 2 Leigh. ;,37 : 20 Vt. 595 ; 19 Penn. St. 248 ; I C. & P. 401. a- 2 Mich. 381. b-Chitty Contr. 7; Doct. & S. 179; i S. ^'- P- 39, 4: " Pet. 182; s Cranch. 142, 150; i Litt. 183; 3 Johns. loo ; 14 H. 466: 8 N. Y. 207: 6 Mass. 58 ; 2 Bibb. 30 ; 2 J. J. Marsh, 222 ; 2 N. H. 97 ; Wright, 660; 5 W. & S. 427; 13 S. & R. 29: 12 Ga. 52; 24 Miss. 9; 4111.33; s Humph, ip ; 4 Blackf. 388; 3 C. B. 321 ; 4 East. 55. c-See on the subject of considera- tion, articles by " E. L. P.," Am. L. Reg. for March, May, and July, 1854, where cases on the whole topic sre cpHected. <|- Q. B. 851 ; 5 A. & E. 548; Smith tuitous when not founded on such a depriva- tion or injury to the promisee as to make the consideration valid in law ; impossible when it cannot be performed ; moral when sufficient to support an executed contract, and valuable when it confers some benefit upon the party by whom the promise is made, or upon a third party at his instance or request ; or some detri- ment sustained at the instance of the parry promising by the party in whose favor the promise is made. b Consideration is the very life and essence of a contract ; and a contract or promise for which there is no consideration cannot be enforced at law. The consideration is the cause of thv contract, d and a consideration must be provided, where the contract is in writing, but not under seal, as much as if the contract were oral only.* The exception to this rule in case of mercaiv tile negotiable paper is considered elsewhere. Where the consideration is expressed in a written contract, no other can be proved r unless there are words to indicate other considera- tions.K Where the consideration is not ex- pressed, it may be proved. h And where the contract declares it was made for a valuable consideration, this is prima facie evidence of such consideration. 1 ADEQUACY. If the consideration is valuable it need not be adequate ; that is, the court wil/ not inquire into the exact proportion between the value of the consideration and that of the thing to be done for it.J But it must have some real value ; and if this be very small, this cir- cumstance may, even by itself, and still more when connected by other indications, imply or sustain a charge of fraud.* Mere folly or want of judgment will not defeat a contract. 1 The courts refuse to disturb contracts on questions of mere adequacy. When adequacy of con- sideration becomes material, whether it exists is a question for the court. AFFECTION. Natural affection the affection which a husband, father, brother, a wife, mother, sister, or other near relative naturally feels towards those who are so nearly allied to him sometimes supplies the place of a valuable consideration in contracts. Natural affection is a good consideration in a convey- ance of land. Cont. p. 88, n.; i La. An. 192. 0-7 Conn. 57; 13 Id. 170; 16 Me. 458; 4 Munt. 95; i Stew. (Ala.) 51; 4 Johns. 235; 9 Cowen, 778; Cooke, 499; 6 Yerg. 418; 6 Hals. 174. The consideration, however, need not b expressed in the writing. It may be proved otherwise, 7 Conn. 291 ; 4 Pick. 71 ; 26 Me. 397; i La. An. 192 ; Comst. 335 ; 21 Vt. 292. The admission of a considera- tion in the writing is, of course, prima facie evidence of its existence, 16 Me. 394. f-i Johns. 129; Gilpin. 329; 5 Greenl. 232; 3 Johns. 506; 8 B. Mon. 596; 6 Md. 210. g-j Johns. 341. h-4 Pick. 71 ; 7 Conn. 291. l-i6 Me. 394 : 4 Mo. 33; see 20 Barb. 298. J-n A. & | E. 983 ; 6 Id. 438-456 ; i Met. 84 ; 23 Vt. 532 ; 2 Foster, I (N. H.) 246: 16 East. 372; 2 Cr. "& M. 623; 9 Ves. j 246; Ambl. 18; 2 Sch. & L. 395. n. (a.): 8 Ves. 133; 3 '' Anst. 732 ; 20 Penn. St. 303 ; 22 Id. 245. k-is E. L. & j E. 101, S. C.; 15 Beav. 103 ; Id. 435, S. C.; 2 De G. M. & G. 55; 7 Gill, 269; o Ga. 60; 19 Ala. 765; 8 Price, 620; i Swanst. 329; 6 Md. 235. l-i Lev. tn, S. C.; i Keb. 560: see Chitty Cont. 32; 2 Ld. Raym. 2164; i , He4- 289. m-3 Bin^. 327. CONTRACTS. ASSIGNMENT o* 1 A DEBT or right is a good consideration for a promise by the assignee. 1 So the assignment of a debt or chose in action with the consent of the debtor is a good con- sideration for the debtor's promise to pay the assignee. It is merely a promise to pay a debt due, and the consideration is the discharge of the debtor's liability to the assignor. But if either transaction amounts to maintenance, which is illegal, the consideration fails, and the promise is void. BILLS OF EXCHANGE, BONDS AND PROMIS- SORY NOTES carry with them prima facie evi- dence of consideration." See this title above. CONTRARY TO MORALS, ETC. Contracts which are incentive to crime, or of which the consideration is an engagement or obliga- tion improperly prejudicial to the feelings of a third party, offensive to decency .or morality, or which have a tendency to mischievous or pevnicious consequences, are void, being against sound morals. DEPOSIT. See title BAILMENTS, DEPOSIT. EQUITABLE. See MORAL, below. EXECUTED considerations are those which are wholly past. An executed consideration will not generally be sufficient to support a contract. It is something done before the obligor makes his promise, and therefore can- not be a foundation for that promise unless it has been executed at the request (express or implied) of the promisor; such a request plainly implies a fair and reasonable compensation. P EXPRESSING. The consideration in simple contracts if not expressed must be proved, and this may be done by extrinsic evidence.' If expressed, such expression is prima facie evidence of the consideration. Contracts, un- der seal, as bonds and deeds, judgments, and negotiable instruments, imply by their very nature a consideration, and in the absence of an expression of consideration none need be proved. FAILURE OF . A want or failure in the whole or in part, of the consideration of a written contract, may be shown as a defence, total or partial, as the case may be, in an action on such contract, brought by one who is not an innocent holder in good faith. l-i Sid. 212 ; 2 W. Bl. 820; 4 B. & C. 525, S. C. ; 7 Dow. & R. 14 ; 13 Q. B. 549 ; 23 Vt. 532-; 7 Texas, 48 : 2 Foster (N. H.) 185. m-i Sid. 212; 2 W. Bl. 820; 4 B. & C. 525 ; 7 Dowl. & R. 14 ; 13 Q. B. 548 ; 23 Vt. 532; 7 Texas, 47 ; 22 N. H. 185; 10 J. B. Moore, 34 ; 2 Bingh. 437; i Cromp. M. & R. 430; Tyrwh. 116; 4 T. R. 690; 4 Taunt. 326; 22 Me. 484; 7 N. H. 549. 11-4 Bl. Comm. 445. 0-2 Wils. 447; Cowp. 729; 4 Campb. 152; i B. & Aid. 683: 16 East. 150. p-i Par- sons Contr. 391 ; 3 Bingh. (N. C.) 10 ; 6 M. & G. 153; \ Id. 538; 2 B. &'C. 833: 6 Id. 439; 8 T. R. 308; 2 111. 113; 14 Johns. 378; 22 Pick. 393 ; 2 Met. Mass. 180; 3 Id. 155; 4 Mass. 574; 12 Id. 328 ; 9 N. H. 195 ; 21 Id. 544: 7Me. 76, 118; 20^.275; 24^.349,374; 27 Id. 106; iCaines, 184; 7 Johns. 87; 7 Cow. 358; 2 Conn. 404. 0-2 Ala. 51 ; 16 Id. 72; 21 Wend. 628: 9 Cow. 778; 3 N. Y. 335 ; 7 Conn. 57, 291 ; 13 Id. 170; 16 Me. ?94, 458 ; 4 Munf. 95 ; Cooke, 499 ; 4 Pick. 71 ; 26 Me. ^97; i La. An. 192; 21 Vt. 292 ; 4 Mo. 33. I*-I3 Mass. 216 ; 3 Burr. 1012 ; 10 Mass. 34 ; i Rep. Const. Ct. 467 : 2 \ott & M'C. 65 : 2 Robt. 258 ; i Overt. 438 ; 3 Call. -;: 26 Me. 217; 2 Day, 437; 2 Danio. 139. The i.ulure of consideration must be fatal, 5 Humph. 496; 4 When the consideration appears to be valu able and sufficient, but turns out to be wholly- false or a mere nullity, or where it may have been actually good, but before any part of the contract has been performed by either party, and before any benefit has been derived from it to the party paying or depositing money for such consideration, and the consideration wholly fails, the promise resting on such a considera- tion is no longer obligatory, and the party pay- ing or depositing money upon it can recover it back, 1 " but where the consideration fails only in fart, the principles analogous to those which govern an inquiry into the adequacy of a con- sideration would be applied to it. . If there were a substantial consideration left, although much diminished, it would still suffice to sus- tain the contract. But if the diminution of failure were such as in effect and reality to take away all the value of the consideration, it would be regarded as one that had wholly failed. But where a person, with full knowledge of all the circumstances, pays money voluntarily, and without compulsion or duress of person or goods, he shall not afterward recover back the money so paid.' FORBEARANCE. An agreement to forbear for a time proceedings to enforce a well- founded claim is a valid consideration for a promise.' But this consideration fails if it be shown that the claim is unsustainable at law or in equity," but mere proof that it is doubtful will not invalidate the consideration.* Nor is it necessary that the forbearance should extend to an entire discharge ; any delay, which is real and not merely colorable, is enough.* Nor is it material whether the proceedings to be fore- borne have been commenced or not. 1 Nor need the agreement to a delay be for a time certain ; for it may be for a reasonable time only, and yet be sufficient consideration for a promise;' but the actual time of forbearance should be proved, and if this be judged by the court to be reasonable, the action will be sus- tained ;* but where the stay of action is wholly uncertain, or such as can be of no benefit to the debtor or detriment to the creditor, it is not enough.* Conn. 428. The measure of damages in such case is the sum paid, no allowance is to be made for plaintiff's loss and disappointment, i Nott & M'Cord, 210; 5 Allen, 306. S-5 Cush. 117; 12 Pick. 7; 4 Met. 181 ; 6 Esp. 26 n.; 5 Bing. 37; i Taunt. 359. t-RoI. Abr. 24 pi. 33; Com. Dig. B. i ; 3 Chitty Com. L. 66-67 : J Bing- N. C. 444; 8 Id. 5: 7 A. & E. 19; 4 Greenl. 387; 4 Johns. 237; 21 Penn. St. 237; 2 Binn. sd.; i Cush. 168; 9 Barr, 147; 3 W. & 8.420; 20 Wend. 201; Wright, 434; 5 Humph. 19; 6 Leigh. 85; i Dougl. (Mich.) 188; 20 Ala. 309; 13 111. 140. 11-2 Hall, 266; 4 Dev. & B. 212; 4 East. 455; i B. & Ad. 604; 20 Ala. 309; 15 N. H. 119 : 2 C. B. 548 ; 2 Leon. 105 : Willes, 481 ; i Vent. 150 ; 2 Wm. Saund. 134 ; Palm. 394 ; Yelv. 26 ; March. 202; iStra. 94; Latch. 141; Popk. 177; 12 Barb. 685. V-5 B. & Aid. 117; 6 Munf. 406; n Vt. 483; 4 Hawks. 178. w-6 Conn. 81.; here the delay was one year ; i Btilst. 41.; here the delay was a fortnight or there- abouts ; see ante, note /. x-Wade vs. Simeon. 2 C. B. 548; 2 Binn. 596. y-4 Wash. C. C. 148; i Penn. St. 38=; ; 5 Rawle, do, 79 ; 23 Vt. 235 : see ante, notr f. Vr 4 Greenl. 378: Hard. 5. R-4 East. 455; 4 M. t W 795 ; 3 Penn. St. 282 ; 9 Vt. 233. CONTRACTS. GOOD. A contract upon a good consider- ation is considered merely voluntary, but is good against the promisor or grantor when once ex- ecuted, 11 but void against creditors and subse- quent bona fide purchasers for value." The term is sometimes used in the sense of a con- sideration valid in point of law, and it then includes a valuable as well as a meritorious consideration. 11 Generally, however, "good" is opposed to " valuable," which see. HIRE. See title BAILMENTS. ILLEGAL considerations can be no founda- tion or cause for a contract. Violations of morality, decency, and policy, as contracts to commit, conceal, or compound crime, are in contravention of law. So, also, with a con- tract for future illicit intercourse, or in fraud of a third party, or the like. In general, if any part of the entire consideration for a promise, or any part of an entire promise, be illegal, the whole contract is void ; because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or an illegal promise, although he may have con- nected with this act or promise another which is legal. But if one gives a good and valid con- sideration, and thereupon one promises to do two things, one legal and the other illegal, he shall be held to that which is legal/ unless the two are so mingled and bound together that they cannot be separated, in which case the whole promise is void. Where the considera- tion is altogether illegal, it is insufficient to sus- tain a promise, and the agreement is wholly void. See next paragraph. IMMORAL. Contracts for an immoral con- sideration are generally void. An agreement in consideration of future illicit cohabitation between the parties,* an agreement for the v.ilue of immoral and libellous pictures,* or for piinting a libel, 1 or for an immoral wager,J can- not, therefore, be enforced ; for whatever arises from an immoral or illegal consideration is void. It is a general rule that whenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties where it finds them. When the agreement has been executed the court will not rescind it ; when executory the court will not aid its execution. 15 IMPOSSIBLE considerations are wholly bad and insufficient, and a contract founded thereon is void. But this impossibility must be a natural or physical impossibility. 1 A consideration b-Fonbl. Eq. B. i, C. 5, g 2 : Chitty Cr. 28. c-Cowp. 705: 9 East. 55; 7 T. R. 475; 10 B. & C. 606. d-3 Cranch. 140; i Aik. 601 ; 24 N. H. 302 : 2 Madd. Ch. 340; 3 Co. 81 ; Ambl. 598 ; i Ed. Ch. 167 ; Newland Contr. 386; Atherby Marr. Sett. 191. e-2 Wils. 347; E. L. & E. 113; 6 Dana, 91 ; 3 Bibb. 500; 9 Vt. 23; ii Whiat. 258; ii Vt. 592 : 26 Vt. 184; 22 Me. 483; 5 Barr. 452 : 4 Pick. 314 ; 2 Gray, 258 ; 14 Sm. & M. 18 ; a Cart. (I nd.) 392; 7 Foster (N. H.) 230; 27 Miss. 13; 10 E. L. & E. 424, S. C. ; 17 Q. B. 785 ; 19 Barb. 291. f-Lcy. 79 : 8 East. 236 ; Hob. 14 ; 3 Comst. 37 ; 6 E. F. Moore, 152; 18 Penn. St. 50. jf-3 Burr. 1568; i Esp. 13: i B. & P. 34 o, 341. h-4 Esp. 97. I-?. Stark. 107. J-Inst. 3, 20, 24. k-4 Ohio, 419 ; 4 Johns. 410 : n Id. rB8; 12 Id. 306; 19 Id. 341 ; 3 Cow. 213; 2 Wils. 341. -Platt Cor. 569 ; 3 Chitty C. L. 101 ; 3 B. & P. 296, n.; * T. R. 718 ; 7 Ad. & E. 798; i Pet. 91, 221 ; 5 Taunt. which one cannot perform without a breach of the law is bad, and so is one which cannot be performed at all. The reason is obvious ; from such consideration no possible benefit or advantage could be derived by the one party, nor detriment to the other. But a prqmise is not void merely because it is difficult or even improbable. And it seems that if the impossi- bility applies to the promisor, personally, there being neither natural impossibility in the thing, nor illegality nor immorality, then he is bound by his undertaking, and it is a good considera- tion for the promise of another, because if a party binds himself to such an undertaking, he may either procure the thing to be done by those who can do it, or else pay damages for not doing it. KINDS. Considerations are good or valu- able. A good consideration is such as that of blood, or of natural love and affection, where a man grants an estate to a near relation, being founded on motives of generosity, prudence, and natural duty. A valuable consideration is usually in some way pecuniary or convertible into money. An equitable consideration is valid between parties, although it be not valu- able ; but only a valuable consideration is valid as against a third party as a subsequent pur- chaser.P whose debt existed when the contract was made ; an attaching creditor, or the like. A mere moral consideration is nothing.* LABOR. See WORK, etc., below. LITIGATION. The prevention of litigation is not only a sufficient but a highly-favored consideration,' and no investigation into the character or value of the different claims sub- mitted will be entered into for the purpose of setting aside a compromise, it being sufficient if the parties entering into the compromise thought at the time that there was a question between them.* LOAN. See title BAILMENTS. MANDATE. See title BAILMENTS. MARRIAGE is a valuable consideration, though it be not convertible into money, nor of pecuniary value. 1 MORAL OBLIGATIONS are often said to be a sufficient consideration. It is a rule, how- ever, that such moral obligation must have once been valuable and enforcible by law, but has ceased to be so by the statute of limitations, or by the intervention of bankruptcy. The claim, in such case, remains equally as strong on 249 ; 2 M. & S. 89 ; 8 Bingh. 68. m-s Vin. Abr. no, in ; C. a. D. a.; i Rol. Abr. 419; Co. Litt. 206, a.: 23 Am. Jur. 20-22; 3 T. R. 17; B. & C. 474. n-Co. Litt. 206, a. n.; i Platt onCov. 569 ; Chitty Com. Law, 101 ; 3 B. & P. 296 n.; 6 T. R. 718 ; 7 A. & E. 798 ; i Pet. C. C. 91; Id. 221. 0-2 Bl. Com. 297. 3 J. J. Marsh, 473. p-io B. & C. 606; Chitty on Cent. 28. q-o M. & W. 501 ; ii A. & E. 438. r-i Ves. Sen. 444 ; i Chanc. 158; i Atk. 3; 17 Pick. 470; 4 Id. 507; Co. 29 ; E. L. & E. 429, S. C. ; 10 Exch. 569 ; Com. Dig. A. i, B. i; 2 Strob. Eq. 258; 2 Mich. 145; i Watts, 216 ; Add. 56 ; 2 Penn. St. 531 : 6 Munf. 406 : i Bibb, 168; 2 Id. 448; 4 Hawks. 78; 6 Watts, 321 ; 14 Conn. 12 ; i W. & S. 456; 4 Met. Mass. 270. 8-21 Eng. L. 4 .199; 6 Monr. 91 ; 2 Rand. (Va.) 442; 5 Watts, $o; 21 Cal. 122. t-3 Cow 537; i Johns. Ch. 261 ; Addis. 276; ii Leigh. 136; 7 Pet. 348; 6 Dana, 89; xaMe.3H. CONTRACTS. the conscience of the debtor. The rule amounts only to a permission to waive certain positive rules of law as to remedy." If the moral duty were once a legal one which could have been made available in defence, it is equally within the rule. T PROMISES. Mutual promises made at the same time are concurrent considerations, and will support each other if both be legal and binding.* And it is so previous to perform- ance and without performance. As, if one promises to become a partner, and another promises to receive him into the firm, both of these promises are binding, each being suffi- cient consideration for the other. 1 If one promise to teach a certain trade, this is a con- sideration for a promise to remain with the party a certain length of time to learn, and serve him during that time ; but without such promise to teach, the promise to remain and serve, though it be made in expectation of in- struction, is void.' The reason of this is, that a promise is not a good consideration for a promise unless there is an absolute mutuality of obligation, so that each party has the right at once to hold the other to a positive agree- ment. 1 A promise to accept and pay for goods is a good consideration for a promise to deliver them,' for the buyer may tender the price and demand the goods ; and the seller may tender the goods and demand the price.* The excep- tion to this rule is in case of contracts between infants and persons of full age; the promise of an infant is a consideration for the promise of an adult, though the infant may avoid his contract, while the adult cannot. SERVICES. See WORK, etc., below. STRANGERS' RIGHTS. A third party may maintain an action on a promise made to another for his benefit, 4 for such promise is to be deemed made to the third party, if adopted by him, though he was not cognizant of it when made." SUBSCRIPTIONS for shares in a chartered company rest upon a sufficient considera- tion, for the company is obliged to give the tabscriber his shares, and he must pay for fcem. f Concerning voluntary subscriptions for fharitable purposes, there is much confusion ti-a Bl. Comm. 445; Cowp. 290; 3 B. & P. 249, n.; a East. 506 ; 3 Taunt. 312 ; 5 Id. 36 ; Yelv. 41, b. n. ; 8 Mass. 127; 3 Pick. 207; 19 Id. 429: 6 Cush. 238 ; 20 Ohio, 332 ; 5 Id. 58 ; 24 Wend. 97 ; 24 Me. 561 ; 2 Bail. 420; 13 Johns. 259; 19 Id. 147; 14^.178-378; i Cow. 249; 7 Conn. 57; i Vt. 420; 5 Id. 173; 3 Penn. 172; 5 Penn. 33 ; 12 S. & R. 177 ; 17 Id. 126 ; 14 Ark. 267 ; i Wis. 131 ; 21 N. H. 129 ; 4 Md. 476. v-s Barb. 556; 2 Sandf. 311 . 25 Wend. 389; 10 6. Mon. 382: 8 Tex. 397. w-Hob. 88 ; i Sid. 180; 4 Leon. 3; Cro. E. 543; o B. & C. 840; 3 B. & Ad 703; i Caines, 45: 8 Rich. L. 416 ; 5 Texas, 512 ; 37 Maine, 442 ; 19 Barb. 428 : 25 Penn. St. 481 : t Hall, 405; i Murphy, 287. x-2 M. & Scott. 89, S. C.; 9 Bmg. 68. y-2 Mo. & P. 86, S. C.; S Bing. 34 ; 9 A. & E. 693, S. C.; i Per. & D. 463 ; 3 Dow. & R. 676 ; 5 B. & Add. 1019. z-4 Kas. 579 ; 2 Id. 35I 13 HI- I 4! I2 Barb. 502; Hob. 88; Peake, 227; 6 B. & C. 255 ; 5 M. & W. 241 ; 25 E. L. & E. 478, S. C. : 9 Exch. 507; 12 How. 126; 3 E. L. & E. 420, S. C.; 16 Q. B. 239 ; 28 E. L. & E. 579, S C.; 10 Exch. 283 ; 5 Man. & G. 131 ; 8 Pick. 392 ; 7 How. (Miss.) 508. a-a Hall, 405. fo-2 Hall, 405 ; 17 Me. 372 ; 19 Id. 74. -9 Met. Mass. 519 ; 7 Watts. 412 ; 5 Cow. 475 ; 7 Id. 22 ; i D, Chip. 453 ; i A. K. Marsh, 76 ; a Bail. 497; 3 M. & of authorities.' Subscriptions to a common object are not usually mutual nor really concur- rent, and can be held and enforced only on the grounds of public policy. 1 * A subscription to be binding ought to be a promise to some particu- lar person or committee. There should be an agreement on the part of such person or com- mittee to do something on their part, as to pro- vide material to erect, extend, or repair a building, or the like. 1 If advances were fairly authorized and have been made on the strength of the subscriptions, it is sufficient to make them obligatory.! Where several promise to con- tribute to a common object, desired by all, the promise of each may be a good consideration for the promise of others. k In general, the subscriptions on certain conditions in favor of the party subscribing are binding when the act* stipulated are performed. 1 TIME. Considerations may be of the pa?t, of the present, or of the future. When tlie consideration and the promise founded upon it are simultaneous, then the consideration is of the present time ; the whole agreement is com- pleted at once. When a consideration is to do a thing hereafter, it is of the future, and is said to be executory ; when the promise to do this is accepted, the latter promise rests on a sufficient foundation, and is obligatory. When a consid- eration is wholly past, it is said to be executed. Generally, a past or executed consideration is not sufficient to sustain a promise founded upon it, unless there was a request for the con- sideration previous to its being made. Without such previous request a subsequent promise has no force. But this previous request need not always be express, or proved, because it is often implied. As where one accepts or retains the beneficial result of such voluntary service. And where one is compelled to do for another what that other should do, and was compellable to do ; here, also, the law implies, not only a pre- vious request that the thing should be done, but also a promise to compensate for the doing of it ; n as where one is surety for another, and pays the debt which the other owes. And where one does voluntarily that which he is not S. 205; 2 Str. 937; see tit. INFANTS, d-aa Am. Jur. 16-50; 2 Watts, 104; 17 Mass. 400; i Hall, 247; n Mass. IS2, n. (a.); 15 Me. 285; 17 Mass. 575; 10 Id. 287 ; 4 Denio, 97 ; 9 Penn. St. 229 ; 2 Met. 381 ; i Vent. 318; 7 Cush. 337; 3 Pick. 83: 2 A. K. Marsh, 496; 7 Com. 347; i Caines, 45; 16 Barb. 561. e-2o N. Y. (6 Smith) 268; 42 Penn. St. 49. f- Parsons Contr. 377; 16 Mass. 94; 8 Id. 138; 21 N. H. 247; 34 Me. 360; 15 Barb. 249; 5 Ala. (N. S.) 787; 22 Me. 84; p Vt. 289. S-6 Met. Mass. 310. h-See 4 N. H. 533; 6 Id. 164; 7 Id. 435 : 5 Pick. 506 ; 2 Vt. 48 ; p Id. 289 ; 5 Ohio, 58. i-n Mass. 114 ; 2 Pick. 579 ; 24 Vt. 189 ; 9 Barb. 202 ; 10 Id. 309 ; 9 Gratt. 633 ; 42 Am. Jur. 281-283; 4 Me. 382 ; 2 Denio, 403 ; i N. Y. 581 ; 2 Cart. Ind. 555 ; x* Pick. 541. J-i2Mass 190; 14^.172; i Met. Mass. 570 ; 5 Pick. 228 ; 19 Id. 73 ; 4 111. 19 ; a Humph. 335 ; a Vt. 48 ; 5 Ohio, 58 ; 9 Barb. 202. k-6 N. H. 164 ; 4 Id- 533 : 5 Pick. 506; 9 Vt. 289: 4 Id. 48; 5 Hamm. 58; ii Mass. 114; a Pick. 579; 24 Vt. 189; 6Md. 113; 20 Penn. St. 260 ; 9 Barb. 202 ; 10 Id. 309 ; 9 Gratt. 633: 3 Seld. 349 ; a Denio, 403, S. C.; i Comst. 581 ; a Cart (Ind.) 555; 37 Penn. St. 210. 1-ia Pick. 541. m-j Md. 67; 17 Me. 303; 24 Wend. 285 ; 17 Pick. 407; i Speers, 368. n-a B. & Ad. 833 ; 6 B. & C. 439; IT R. 308 ; 3 Biiig. N. C. 10; 6 M. & W. 153. CONTRACTS. compellable to do, for another who is com pel - lable to do it ; as if one who is not surety, nor hound in any way, pays a debt due from another, he has not the same claim and right as if he had been compellable to pay this debt; for now the law, if there be a subsequent promise to repay the money, will indeed imply a previ- ous request; the reason is, that the debtor -hall not be obliged to accept another party as his creditor without his consent, for he may have partial defences, or other reasons for arranging the debt with him to whom it is due, and not with another ; but if the debtor choose to promise him repayment he is held to such promise and the consideration, though executed, is sufficient. TRUST AND CONFIDENCE. If one intrusts money, goods, or property of any kind, to my person, on the faith of that person's prom- ise to act in a certain way in reference to such money, goods, or property, such person having accepted the trust will be held to his promise, because the trust is itself a sufficient consideration for a promise to discharge and execute the trust faithfully.? For if a person makes a mere gratuitous promise, and then en- lers upon the performance of it, he is held to a full execution of all he has undertaken.*! VALUABLE considerations are the only ones which are good against subsequent purchas- ers and attaching creditors, and these are always sufficient if rendered at the request, ex- prass or implied, of the promisor. 1 " A valuable consideration is usually in some way pecuniary or convertible into money; and a very slight consideration, provided it be valuable and free from fraud, will support a contract. 8 The civilians divided it into four classes, viz. : l. ' I give that you may give." 2. " I do that vou may do." 3. " I do that you may give." 4. " I give that you do." See GOOD ; KINDS ; and the various paragraphs on the subject of consideration, above and below. VOID IN PART. If one or more of sev- eral considerations, which are recited as the? ground of a promise, be only frivolous and in- sufficient, but not illegal, and the others are good and sufficient, then the consideration may be severed, and those which are void disre- garded, while those which are valid will sustain the promise.* But where the consideration is entire and incapable of severance, it must be wholly good or wholly bad. If the promise be entire, and not in writing, and a part of it relate to a matter which, by the statute o( frauds, should be promised in writing, such part being void Vi B. & Aid. 104; i Cr. & M. 819; 14 Johns. 373; 22 Pick. 393; 3 Met. 155. |-Dial. 2 c. 24; a La. Raym. 019 : 2 A. & . 256 ; 10 Moore, 182 ; 2 Bing. 464 ; McClel. & Y. 205 ; 6 Dow & R. 443, S. C.; 4 B. & C. 345: a M. & W. 143 ; Cro. J. 668 ; 13 Ired. 39 ; i Pet. & D. 3; Smith L. Cas. 1 p. 99, ed. 1841. q-See title BAILMENTS. r-Dyer, 172, n.; i Rolle Abr. n ; PI. 2,3: i Ld. Raym. 312 ; i Wms. Saund. 264, n. 1.; -, Bingh. (N. C.) 710 : 6 Ad. & E. 718 ; 3 C. & P. 36 ; 6 M. & W. 485: 2 Stark. 201; 28^.933; 3 Q. B. 234 ; Cro.^ Eliz. 442 ; F. Moore, 643 ; 5 Johns. 273 ; 2 Id. 442 ; i Vl'Cord, 22. s-2 How. 426; i Met. Mass. 84; 12 Mass. 365 ; 12 Vt. 259 ; 23 Id. 532 ; 29 Ala. ( N. S. ) 188 ; jo Penn. St. 803 ; 22 N. H. 246 ; u Ad. & E. 983 ; 6 Id. 438, 45^ : 16 East. 372 ; 9 Ves. Ch. 346 ; a Crompt. & M. avoids the whole contract ; u but if it be such in its nature that it may be divided, and the part not required to be in writing by the statute may be enforced without injustice to the promisor, that portion of the agreement will be binding/ WORK, SERVICES, AND LABOR. Work and service are a very common considera- tion for a promise, and always sufficient, if rendered at the request of the party promising.* This request may often be implied ; it is so^ generally, from the fact that the party making, the promise accepts and holds the benefit result- ing from the work or service.* And it is an equally sufficient consideration for a promise if the work or service be rendered to a third party at the request of the promisor.* 'If the work and service rendered are merely gratuitous, and performed for the defendant without his request or privity, however merito- rious or beneficial they may be, they afford no cause of action.* So, if a workman employed and directed to do a particular thing chose to do some other thing, without the direction or assent of his employer, the implied promise of the employer to pay for his labor will not ex- tend to the new work ;* but if the work is ac- cepted by the employer, it would be a sufficient consideration for a promise to pay for it, and such acceptance might imply such promise. CONSTRUCTION is determination of the meaning and application as to the matter in question of the provisions of a written instru- ment drawing conclusions respecting subjects that lie beyond the direct expressions of the term. b A strict (or literal) construction is one which limits the application of the provisions of the instrument or agreement to cases clearly described by the words used. A liberal (or equitable) is one by which the letter is enlarged or restrained so as to more effectually accomplish the end in view. A leading principle of construction is to carry out the intention of the authors of or parties to the instrument or agreement, so far as can be done without infringing upon any law of superior binding force. In regard to cases where this in- tention is clearly expressed, there is little room for variety of construction ; it is mainly in cases where the intention is indistinctly disclosed, though fairly presumed to exist in the minds of the parties, that any liberty of construction exists. What a contract means is a question of law. It is the court therefore that determines the construction of the contract. If there are 623 ; Ambl. 18; 2 Sch. & L. 395, n. a: 3 Anstr. 732. t-M Pick. 198; a C. M. & R. 48; 5 Bing. N. C. 341;! ii A. & E. 1027; i Sid. 38 ; i Rol. Abr. 30; pi. 2; Cro. E. 149; Id. 848: Cro. J. 1^7; 2 Bing. N. C. 646. n-J A. & E. 49, S. C.; a Nev. & P. 224 ; 7 T. R.2O3; Vent. 223 ; 10 B. & C. 664 ; 2 Tyr. 93 : 2 B. & C. 357; 16 E. L. & E. 466, S. C.; 7 Exch". 870 ; 6 Cush. 503 : n Gratt. 636; a Met. (Ky.1 163. v-6 Cush. 508; n Id. t ; 2 Tyr. 93. w-Dyer, 272, n.; i Rol. Abr. n pi. 2, 3; i Ld. Raym. 312. x-i Wm. Saund. 264, n. i ; 3 Bing. N. C. 710; 20 Barb. 387. y-Dyer, 272, n.: i Rol. Abr. ii pi. 2-3; i Ld. Raym. 312. ai-Dyer, 272, a.: i Rol. Abr. ii p. i ; 3 Q. B. 234 ; Cro. E. 442 : Moore, 643 : 3 Irerl. Eq. 307; 5 Johns. 273 ; Bartholomew vs. Jackson, 20 Johns. 28. a-i M'Cord, 22 ; 2 Johns. 442. b-Liebr* Leg. & Pol. Herm. ao. c-8 M. & W. 8o6-Sa 3 . CONTRACTS. Deculiar expressions used in it, which have, in particular places or trades, a known meaning attached to them, it is for the jury to say what the meaning of these expressions was, but for the court to decide what the meaning of the contract was. d Words, if of common use, are to be taken in their natural, plain, obvious, and ordinary signi- fications ; but if technical words are used they are to be taken in a technical sense, unless the contrary intention clearly appear in either case from the context. All instruments and agreements are to be so construed as to give effect to the whole, or as large a portion thereof as possible. AMBIGUITY. See above. CUSTOM OR USAGE. An established cus- tom may add to a contract stipulations not con- tained in it, on the ground that parties may be supposed to have had these stipulations in their minds as a part of their agreement, when they put upon paper or express in words the other part of it. 9 So, custom may control and vary the meaning of words. r For this purpose the custom must be established and not casual, uniform and not varying, general and not per- sonal, and known to the parties.* Nor is it necessaiy that the word sought to be interpreted by the custom should be, of itself, ambiguous. h Custom is the thing to be proved, and usage is the evidence of the custom. 1 Whether a cus- tom exists is a question of fact. The custom must be established by the evidence of witnesses who speak directly from the fact of the existence of the custom.'' Generally, the knowledge of a custom must be brought home to the party who is to be affected by it. But if it be shown that the custom is ancient, very general and well known, it will often be a presumption of law that the party had knowledge of it. k No custom can be proved, or permitted to influence the construction of a contract, or vary the rights of parties, if the custom itself be illegal j 1 neither will courts sanction a custom by per- mitting its operation upon the rights of oarties, which is of itself wholly unreasonable. So a usage among plasterers to charge half the size l-5 M. & W. 535 ; i N. J. 659 ; Id. 24 ; 9 Ired. 319 ; 16 Vt. 525; 20 Pick. 150; 5 C. B. 515; 3 M. & W. 402; 1 ; 6 Penn. St. 45 ; 16 I 08 ; 13 i*s Crown e-i M. & W. 475 ; 3 Greenl. Jamp. 530; 5 Q. B. 303; 2 Hill ID v t. 525 ; 20 ricK. 150; 5 (. K. 515; 3 M. GE C. B. 1855 ; 30 Eng. L. & Eq. 508 ; 6 Penn. St Id. 43; 5 Whart. 308; 3 M. & W. 404; 6 Id. N. H. 536-562; 2 East. P. C. 1120; i Leach's cases, 169; i Gray, 496. 276; 2 Exch. in ; 2 Ca (S. C.) 354 : 2 Bing. (N. C.) 359 : 3 Cush. 384 ; 13 Met. 3 Gratt. 262 ; i M. & W. 476 : 4 East. 154 ; Doug. i Pet. 137. f-3 Camp. 16; Ryan & Moody, 75; 517; 3 Gratt. 262; i M^ Ml i Bing. 445. g-i Caines, 43; Doug' 510; 2 N. I". 165 ; i Cush. 177 ; 2 C. & P. 525 ; 2 C. B. 412 ; i Strob. 203 : 7 Man. & G. 729 ; 3 M'Cord, 121 ; 3 Watts, 178 ; i C. & P. 59 ; Wright, 193 ; Ware, 322 ; 7 East. 224 ; i Gallis. 443; 2 Wash. C. C. 254; 13 Penn. St. 23; 8 How. 83- 102 ; 10 B. & C. 760-770; 3 Id. 793 ; i B. & Ad. 6os ; 9 Pick. 98 ; 5 A. & E. 302 : i Blatch. C. C. 526 ; 9 Met. 354-365 ; t C. & P. 59 ; 23 How. 49. tl-i Duer on Jus. 254 ; Doug. 510 ; i Camp. 508, n. ; 2 N. J. 165 ; 3 Camp. 200. i-io B. & C. 4'0. J-7 Man. & G. 729 : 22 Wend. 222; 2 Barr. 1228; D nig. 527-530; 7 C. & P. 597; 2 Wash. C. C. 7 ; t Story, 603-607 ; Duer on Jus. 183 ; i Seld. 1 5,5 ; 13 Penn. St. 33 : 9 Gill & Johns. 31. k-s A. & E. 301 ; i B. & Ad. 605 ; o Pick. 198 ; 4 M. & W. 211. l-i Duer on Jus. 272 ; 27 Miss. 266. ni-io Met. 375. of the windows at the price agreed on for work and materials is unreasonable and void." No custom, however universal, or old, or known, unless it has actually passed into law, has any force over parties against their will ; and no usage can be incorporated into a contract, which is inconsistent with the terms of the contract.? Where the terms of the contract are plain, usage, even under that very contract, cannot be permitted to affect materially the construction to be placed upon it.* See CUS- TOM, below. EXTRINSIC EVIDENCE. It is very common for parties to offer evidence external to the con- tract, in aid of the interpretation of its language. But " writing cannot be cut down or taken away by the evidence of witnesses ; " r such evi- dence cannot be admitted to " contradict or vary " the terms of a valid written contract.' For when parties at last reduce their agreement to writing, it is looked upon as the final con- summation of their negotiation, and the exact expression of their purpose ; and that which is not now incorporated into their written contract may be considered as intentionally rejected.* As to parties or the subject-matter of a contract, extrinsic evidence may and must be received and used to make them certain, if necessary for that purpose. Thus, upon a bequest to my cousin, T. S., if I have two cousins of that name, evidence may be adduced to show which of the two the testator intended," and whether parcel or not of the thing demised is always a subject of parol evidence. v A devise simply to John Smith would necessarily create some un- certainty.* Where the language of an instru- ment has a settled legal meaning, its construc- tion is not open to evidence. Thus, a promise to pay money, no time being expressed, means a promise to pay it on demand ; and evidence that a payment at a future day was intended, is not admissible." But a promise to do some- thing other than pay money, no time being ex- pressed, means a promise to do it within a reasonable time.J The date of an instrument, 1 or if there be no date, the time when it was to take effect, which n-3 Yeates, 318; i Const. R. 308; 23 Vt. 159; 6 Pick. 131; ii Met. 186; i Const. R. 303; 3 Greenl. 276: 19 Conn. 136; 2 Hill, S. C. 354; n Exch. 405 ; 30 Eng. L. & Eq. 604; i Duer on Jus. 269; 5 Bing. N. C. 127; i Camp. 505, n. (a.) O-Crabbe, 534, see next note, p-2 Sumn. 567; 2 Cromp. & J. 244; 4 Ellis & B. 500; 20 Eng. L. &Eq. in ; 6 Md. 37; 5 Hill, 437; 15 M. & W. 737; 6 Taunt. 446; 2 Barr, 237; i Wash. C. C. 39; I R. I. 147; 26 Vt. 123; 23 How. 520; i Cromp. & M. 808; 2 B. & Aid. 746; i M. & W. 466; N. P. 197; 2 Exch. in ; 3 B. & Aid. 728; ii H. Mon. 64 : i Smith's L. Cas. 308, b. q-26 Beav. 316. r-Tait on Ev. 326 ; i Gray, 134; 2 Kernan, 561. S-i8 C. B. 213; 36 Eng. L. & Eq. 332. t-2 W. Bl. 1240 ; 15 C. B. 667 ; 29 Eng. L & Eq. 226; ii Barb. 147; i Blatch. C. C. 467; 3 Wilson, 275 ; 23 Vt. 231 ; Id. 681 ; 2 B. & C. 634 ; 2 Caines, 155 ; t Johns. 414 : 4 Taunt. 786. u-i W. Bl. 50 ; 4 Dow. 93. v- t T. R. 701 ; 2 Stark. 508 : i B. & A. 247 ; i Merriw. 653 ; 4 Wend. 659 ; 3 Ves. 148 ; 14 Penn. St 171 ; 6 Sim. 54 ; 11 Johns. 211. w-ij M. & W. 307 : 3 Mylne & K. 353; 12 A. & E. 442 ; 13 Pick. 261 : 13 Pet. 89-97 ; M. & S 301; Harp. Eq 56. x-8 Met. 97; 16 Pick. 227; 13 Met. 520; 8 Johns. 189 ; 2 Kernan, 462. y-8 Met. 97: 16 Pick. 231 ; 3 Stewart, 201 ; Moody & M. 300. 2-4 Sanf. 79 : 13 111. 33 ; 4 East 477 : 4 Cusk. 8*. 208 CONTRACTS. may be other than the day of delivery,* or the amount of the consideration paid, b may be varied by testimony. And an instrument may be shown to be void and without legal existence or efficacy, as for want of consideration, or for fraud, d or duress, or any incapacity of the par- ties," or any illegality in the agreement.' In the same way extrinsic evidence may show a total discharge of the obligations of the con- tract ; or a new agreement substituted for the former, which it sets aside ;* or that the time when, b or the place where, 1 certain things were to be done had been changed by the parties ; or that a new contract, which was additional and supplementary to the original contract, had been made;J or that damages had been waived ; k or that a new consideration, in addition to the one mentioned, had been given, if it be not ad- verse to that mentioned in the deed. 1 And if no consideration be named, one may be proved. 10 A receipt for money is peculiarly open to evidence. It is only prima facie evidence either that the sum stated has been paid, or that any sum whatever was paid." If a con- tract refer to principles of science or art, or use the technical phraseology of some profession or occupation, or common words in a technical sense, or the words of a foreign language, their exact meaning may be shown by the testimony of " experts," that is, persons possessing the peculiar knowledge and skill requisite for the interpretation of the contract. The law will not make, nor permit to be made for parties, a contract other than they would have made for themselves. If the con- tract which the parties have made is incurably uncertain, the law cannot enforce it; it will only declare such supposed contract no contract at all, and leave the parties to the mutual rights and obligations which may then exist between them. But the law will not pronounce a con- tract incurably uncertain, and therefore null, until it has cast upon it all the light that can be gathered, either from a collation of all the words used, or from all cotemporaneous facts which extrinsic testimony establishes.? -i7 C. B. 625. fo-i Young & C. Cas. in Ch. 136; 3 T. R. 474 ; 8 Conn. 304; i Greent. Ev. g 26 n. (I). C-i Cowen, 249; i Cromp. M. & R. 703; 10 Mass. 427; 5 Pick. 391 ; 14 Id. 198. d-i Cowen, 249; 12 Johns. 337. e-s Pick. 431 ; 40 Penn. St. 474. f-2 Wilson, 347. g- 9 Pick. 298; 5 B. & Ad. 58; 2 Kern. 184. h-i Johns. Cas. 22; 7 Cowen, 48; i Bailey, 537; i M. & S. 21. i- 4 N. H. 40. J-i Stark. 267; 22 How. 28. fc-3 Johns. 528 l-i Young & C. Cas. in Ch. 138; Bedell's Case, 7 Rep. 133, n.: Sanf. Ch. 163, 173 ; Dyer, 146, a.; Willes, 667. m-2 Collyer, 76. 11-13 Penn. St. 46 : 12 Id. 235 ; 10 Humph. 88; 2 N. J. 50 : 2 T. R. 366; 6 Foster, 12. O-i Sim. 24 ; Wigram on Wills, App. No. i, 4 Ves. 769 ; 9 Clark & F. 511; 17 Penn. St. 514; 9 Clark & F. 568 ; 1 Anst. 39-44. p-i2 A. & E. 431 ; 2 Dall. 70; i Ves. Sen 231 ; 19 Ves. 601 ; 13 Pick. 523 ; 15 Conn. 274-296 ; 3 McN. & G. 692 ; 12 Eng. L. & Eq. 52 ; n Juris. 113 : 2 Ves. 162. |-i Nev. & P. 326,327; 4 Taunt. 844: i T. R. 674 ; 19 Me. 304-398 ; 8 Mass. 162-214 ; 25 Me. 401 ; 37 Id. 137. r-Co. Litt. 42-83: 10 Rep. 67. b.; 3 Cowen, 284; 4 How. (Miss.) 428; 9 Paige, 188; 9 Clark & F. 397; 4 De G. M. & G. 591 ; 31 Eng. L. & Eq. 142; 18 Beav. 478; 31 Eng. L. & Eq. 504. s-4 East. 135 ; 2 Whart. 491 ; 4 A. & E. 322 ; 2 Cromp. M. & R. 617 ; i Taunt. 417 ; 10 B. & C. 66 : 4 Q. B. 419 ; i Exch. 519; a Sanf. 202; a Hill, 220; 36 Me. 28; Id. 102; GENERAL RULES. The subject-matter of the contract is to be fully considered. - The construction which would make the contract legal is preferred to one that would have the opposite effect. 1 " The presumption is of greater or less strength, according to the lan- guage used, or the circumstances of the case in favor of the comprehensive over the re- stricted, the general over the particular, and the common over the unusual sense. 1 The whole contract should be considered in deter- mining the meaning of any or all its parts. 1 The contract should be supported rather than de- feated. All instruments should be construed against him who gives or undertakes, or enters into an obligation.* A lease to one to hold for seven, fourteen, or twenty-one years gave to the lessee, and him alone, the option at which of the periods named in the lease should de- termine." No precise form of words is neces- sary even in a specialty. 35 On the contrary, it is so far immaterial in what part of an instru- ment any clause is written, that it will be read as of any place and with any context, and, if necessary, transposed in order to give effect to the certain meaning and purpose of the parties.? Where clauses are repugnant and incompatible, the earlier prevails, if the inconsistency be not so great as to avoid the instrument for uncer- tainty. 1 The law frequently supplies by its implications the wants of express agreements between the parties ; but it never overcomes by its implications the express provisions of par- ties.' If these are illegal, the law avoids them. If they are legal, it yields to them. Preference should be given to the written part of the instruments which are in part printed and in part written ; b but if the whole contract can be construed together so that the written words and those printed make an intelligible contract, this construction should be adopted. INTENTION. The first point is, to ascertain what the parties themselves meant and under- stood. But courts cannot adopt a construc- tion of any legal instrument that shall do violence to the rules of language, or to the Younge, 354 ; i Ves. & B. 422 ; i Russ. & M. 336. t- Winch. 93 ; 6 M. & S. 9 ; 3 Story, 122 ; 26 Me. 531 ; 29 Id. 346; 10 Pick. 288; ii Vt. 583; 8 Met. 96; i Sneed. 141; 15 East. 541; 5 T. R. 522; i Show. 150-155; 4 M. & S. 426; a Ves. aio; 5 B. & Aid. 606; 3 Id. 175; 9 Mass. 235; 18 Pick. 325; i Cow. 122: i Edw. Ch. 134; Cow. 9; i How. 160-184; 2 Id. 426-449; a B. & P. 13 ; 3 B. & P. 565 ; 3 J. B. Moore, 703 ; Dyer, 240, a.; 2 Johns. Cas. 205; 19 Johns. 97; 15 East. 530; 10 J. B. Moore, 55 ; i Barb. 311 ; 32 Vt. 98 ; ; 9 Q. B. p. ?b; Pl 102; 6 . W. 612. w-3 B. & P. 399; 9 East. 15; ; ii Pet. 420-589; 16 . . . . . J. B. Moore, 55 ; i Barb. 311 ; 32 Vt. 98 ; 8 Q. B. 452. U-3 Atk. 135; 9 Q. B. 1033; Cowp. 714; i H. & N. 255. T-S Rep. ?b; Plowd. 289; Davies, 407; 19 Vt 102; 6 M. & W. 612. w-3 B. & P. 399; 9 East. 15; Johns. 172; 5 Met. 15-27; 10 N. H.JOS; 29 Me. 169; x-Plowd. 140; 6 De Plawd. 154-161; i H. Bl. 25; 172; 5 Met. 15-27; 10 N. 5: 36 Id. 309: 22 Vt. 98. ---,-. M. & G. 453 : 31 Eng. L. & Eq. 392-397. y-$ T. R. 526; Co. Litt. 217, b.; i Jarman on Wifk, 437, ft seq. *-Shep. Touch. 88; Hardw. 94; Owen, 84: a Taunt. 109; 15 Sim. 118; a C. 6.830: Cro. Eliz. 886; 13 M. & W. 534 ; i Freem. 247 ; 3 Wend. 99 ; 23 Am. Jur. 277-278 ; 2 Mod. 285 ; i Lev. 77 ; Sid. 105 ; i Hawks, 20; 7 J. J. Marsh, 192 ; 5 Tyrw. 1013. a-Co. Litt. aio. CONTRACTS. 209 rules of law. d Words must not be forced away from their proper signification to one en- tirely different, although it might be obvious that the words used, either through ignorance or inadvertence, expressed a very different meaning from that intended. Thus, if a con- tract spoke of " horses," it would not be possible for the court to read this word " oxen," although it might be made certain by extrinsic evidence that it was so intended. This is a rule which should be constantly borne in mind Hii putting a construction upon any legal instru- ment." So if parties used in a contract techni- cal words, these words could not be wrested from their customary and established meaning, on the ground that the parties used them in a sense which had never before been given to them. r So, too, if a manufacturer agrees to make and finish certain goods " as soon as possible," this means within a reasonable time, due regard being had to the manufacturer's means, his engagements, and the nature of the articles.' PRESUMPTIONS OF LAW. It is a presump- tion of law that parties to a simple contract in- tended not only to bind themselves, but their personal representatives ; and such parties may sue on a contract although not named therein. 11 It is also a legal presumption, that every grant carries with it whatever is essential to the use and enjoyment of the grant. 1 Where anything is to be done, as goods to be delivered, or the like, and no time is specified in the contract, it is then a presumption of the law that the par- ties intended and agreed that the thing should be done in a reasonable time.J CONTRA BONA MORES. See CONSIDERA- TION, above. CONVEYANCES. See that title. CO-OBLIGOR is one who is bound to- gether wilh one or more others to fulfil an agreement, contract, or obligation. See PAR- TIES. COVENANTS. See title CONVEYANCES. CUSTOM is such a usage as, by common consent and uniform practice, has become the law of the place, or of the subject-matter to which it relates. General customs are such as constitute a part of the common law, and extend to the whole country. Particular customs are those which are confined to a particular locality. In general, when a contract is made in rela- tion to another, about which there is an estab- lished custom, such custom is to be understood as forming a part of the contract, and may always be referred to for the purpose of show- ing the intention of the party in all those par- ticulars which are not expressed in the contract.* d-Parkhurst vs. Smith, Willes, 332. e-t H. Bl. 569- 614: 16 C. B. 420; 30 Eng. L. & Eq. 496; 47 Me. 530. f-3 M. & W. 535. g-i C. B. (N. S.) no. h-i M. & W. 418, 423; 3 Bulst. 30; i Cromp. & J. 403. i-n Li- fiwd's case, n Rep. 52 ; Co. Litt. 56, a.; i Wms. Saund. 323, n. (6) ; 13 M. & W. 706 ; 5 Bing. N. C. i ; 6 M. & W. 174; Brown's Leg. Max. 362, 2d Ed. .f-3 Sumner, 530; 3 M. & W. 445; 3 Camp. 429; 15 Me. 140; Id. 350 ; 20 Me. 67 ; 16 Id. 164. h-i Hall, 602 ; 2 Pet. 138 ; 5 Binn. 285; 9 Wend. 349; i M. & W. 476. 1-13 Pick. But if the meaning of the contract is certain and beyond doubt, no evidence of usage will be admitted to vary or contradict it. 1 In order to establish a custom, it will be necessary to show its existence for so long a time that " the memory of man runneth not to the contrary," and that the usage has continued without any interruption of the right ; for, if it has ceased for a time for such a cause, the revival gives it a new beginning, which will be what the law calls within memory. It will be no objection, however, that the exercise of the right has been merely suspended. 1 " It must also have been peaceably acquiesced in and not subject to dispute; for, as customs owe their origin to common consent, their being imme- morially disputed, either at law or otherwise, shows that such consent was wanting." In ad- dition to this, customs must be reasonable and certain. Evidence of usage is never admissible to oppose or alter a general principle, or rule of law, so as, upon a given state of facts, to make the legal rights and liabilities of parties other than they are by law. With respect to a usage of trade, however, it is sufficient if it appears to be known, certain, uniform, reasonable, and not contrary to law.P But if not directly known to the parties to the transaction it will still be binding upon them if it appear to be so general and well established that knowledge of it may be presumed.' See CONSTRUCTION, above. DAMAGES. Liquidated damages are those whose amount has been determined by anticipatory agreement between the parties. Where there is an agreement between the parties for the doing or not doing particular acts, the parties may, if they please, estimate beforehand the damages to result from a breach of the agreement, and prescribe in the agree- ment itself the sum to be paid by either by way of damages for such breach. r The sum named in an agreement as damages to be paid in case of a breach will, in general, be considered as liquidated damages, or as a penalty, according to the intent of the parties. The mere use of the words " penalty " or "liquidated damages" will not be decisive of the question if, on the whole, the instrument discloses a different intent." Such a stipulation in agreement will be consid. ered as a penalty merely, and not as liquidated damages, in the following cases : Where the parties in the agreement have expressly declared it, or described it, as a " penalty," and no other 176 ; i Cr. & M. 808. As to the effect of usage in respect to agricultural leases, see Taylor, Landl. & Ten. 541. m-i Bl. Comm. 76; 2 Id. 31 ; 14 Mass. 488; 3 Q. B. 581 ; 6 Id. 383. n-2 Wend. 501 ; 3 Watts, 178. 0-2 T. R. 327; 19 Wend. 252: 6 Met. (Mass.) 393; 6 Pick. 131 : 6 Bin. 416. p-3 Wash. C. C. 150 : 7 Pet. i ; 5 Binn. 287; 8 Pick. 360. q-i Caines, 43 ; 4 Stark. 452. r-i H. Bl. 232 : 2 B. & P. 335, 350; 2 Brown Parl. Cas. 431 : 4 Burr. 2225 ; 2 T. R. 32. g-Story Eq. Jur. 1318 ; 6 B. & 0.224: 6 Bingh. 141 ; 6 Ired. 186 15 Me. 473 ; a Ala.(N. S.)425; 8 Mo. 467. CONTRACTS. intent is deducible from the instrument ;" where it is doubtful on the language of the instrument whether the stipulation was intended as a pen- alty or as liquidated damages ; r where the agreement vras evidently made for the attain- ment of another object or purpose, to which the stipulation is wholly collateral ; where the agreement imposes several distinct duties or obligations of different degrees of importance, ,and yet the same sum is named as damages for la breach of either indifferently;* where the agreement is not under seal, and the damages are capable of being certainly known and esti- mated ; a where the instrument provides that a larger sum shall be paid, upon default to pay a lesser sum in the manner prescribed.' The stipulation will be sustained as liquidated damages in the following cases : Where the agreement is of such a nature that the damages are uncertain, and are not capable of being as- certained by any satisfactory and known rule ; w where, from the tenor of the agreement, or from the nature of the case, it appears that the par- ties have ascertained the amount of damages by fair calculation and adjustment. 1 DATE includes the time (/'. e., day, month, and year) and place when and where an instru- ment of writing was made. And when the place is mentioned in the date, the law pre- sumes, in the absence of evidence to the con- trary, that it was executed at the place of the date.' Written instruments generally take ef- fect from the day of their date, but the actual date of their execution may be shown, though different from that which the instrument bears. The date is not of the essence of the contract, but is essential to the identity of the writing by which it is to be proved ; z and if a written date is an impossible one the time of delivery must be shown.* DEATH. Contracts are, in general, not affected by the death of either parly. The ex- ecutors or administrators of the decedent are required to fulfil all his engagements, and rmv enforce all those in his favor. But to this rule there are the following exceptions: The con- tract of marriage ; the contract of partnership ; those contracts which are altogether personal, as, where the deceased had agreed to accompany the other party to the contract on a journey, or to serve another, or to instruct an apprentice. 11 In all those cases where one is acting for an- q-2 B. & P. 340, 350, 360; i H. Bl. 227; i Campb. 78; 7 Wheat. 14; i McMuIl. 106: 2 Ala. (N.S.)425: 5 Met. (Mass.) 61 ; i Pick. 451 ; 4 Id. 179 ; 3 Johns. Cas. 87; 17 Barb. 260; 24 Vt. 97. r-3 C. & P. 240; 6 umph. 186; 5 Sandf. 192; 24 Vt. 97; 16111.475. s-n Mass. 488 : 15 Id. 488 ; i Brown Ch. 418. t-6 Bingh. 141 ; 581 ngh (N. C.) 390; 780011,364; 5 Sandf. 192; but see 7johns.72; 15 Id. 200; 9 N. Y. 551. B-a Barn, ft Aid. 704. 6 Barn. & C. 216; i M. & M. 41 ; 4 Dall. 150; 5 Cow. 144. v-5 Sandf. 192,640; 16 111. 400; i4Ark.329. W-2 T. R. 32 ; i Ale. & N. Ir. 389 ; 2 Burr 2225 : 10 Ves. Ch 429 ; 3 M. & W. 535 ; 3 C. & P. 240 ; 8 Mass. *23; 7 Cow. 307; 4 Wend. 468; 5 Sandf. 192; 12 B.irb. '37. 366 : 18 Id. 336 ; 14 Ark. 315 ; 2 Ohio St. 519. X-2 Story Eq. Jur. ji 1318 ; 2 Greenl. Ev. 259 ; i Bingh. 302 ; 7 Conn. 291 ; n N. H. 234; 6 Blackt". 206; 13 Wend. 507 ; 17 Id. 447 ; 22 Id. 201 : 26 Id. 630 ; 10 Mass. 459 ; 7 Met. (Mass.) 583 ; a Ala. (N. S.) 425 ; 14 Me. 350. y- other, and by his authority, such as agencies and powers of attorney, where the agency or power is not coupled with an interest, the death of the party makes an immediate revocation. Whenever any express or implied authority is being exercised by another, the death of the party giving it is a revocation. Persons who have been once shown to have been in life are presumed thus to continue until the contrary is shown ; so that it lies on the party asserting the death to make proof of it. d But proof of a long-continued absence, unheaid from and unexplained, will lay a foundation for presumption of death. The general rule is, that the presumption of the duration of life ceases at the expiration of seven years from the time when he was last known to be living. 6 Such continued absence for seven years from the par- ticular State of his residence, without showing an absence from the United States, is sufficient/ DEBTS may be evidenced by the various forms of contracts, as conditional conveyances, judgments, mortgages, simple agreements, etc., etc. The distinguishing and necessary feature is that a fixed and specific quantity is owing, and no future valuation is required to settle it.* DEFAULT is the non-performance of a duty, whether arising under a contract or other- wise. 11 By the statute of frauds " no action shall be brought to charge the defendant upon any special promise to answer for the debt, de- fault, or miscarriage of another person, unless the agreement," etc., "shall be in writing," etc. See title FRAUD, and FRAUD, below. DELIBERATION (the understanding by which the party examines whether a thing pro- posed ought to be done or not, or whether it ought to be done in one manner or another) relates to the end proposed ; to the means of accomplishing that end ; or to both. It is a pre- sumption of law that all acts committed are done with due deliberation that the party intended to do precisely what he has done. But he may show the contrary. In contracts, for example, he may show that he has been taken by surprise. DELIVERY is frequently symbolical, as by delivery of a key to a room containing goods, 1 marking timber on a wharf, or goods in a ware- house, or by separating and weighing or meas- uring them,J or otherwise constructively deliv- ering, as by the delivery of a part for the whole. k Plowd. 7, 6. z-2 Greenl. Ev. <$ . '3, 4^9- ": 8 Mass. 159 : 4 Cush. 403 ; i Johns. Cas. 91 : 3 Wend. 233 ; 31 Me. 243 ; 17 Eng. L. & Eq. 548; 2 Greenl. Cruise Dig. 618, n. a-Shepp. Touchst. 72; Cruise Dig. 618, n. b-Poth. Ob. c. 7 ; Art. 3, % 2, 3 ; Bac. Abr. Executor P.; i Burn. Ecci. L. 82 ; Ham. Part. 157; i Rawle,6i; 2 B. & Ad. 303. 0-30 Vt. ii. l-2 East. 312; 2 Rolle, 461. e-i Phillips Ev. Cowen & H. Ed. 197. 2 Cow. & H. notes, 489 ; i Greenl. Ev. 41 : 5 Johns. Ch. 263 ; 5 B. & Aid. 86. f-io Pick. 515 ; i Rawle, 373 ; i A. K. Marsh, 278 ; i Penning. 167 ; 2 Bay, 476. -3 Bl Comm, 154 ; 2 Hill N. Y. 220. h-2 B. & Aid. 516. I- 2 Aik. 79 ; 5 Johns. 335 ; i Yeates, 529 ; 2 Ves. Sr. 445 : i East. 192 ; see also 7 East. 558 ; 3 B. & Aid. i ; 36. & P. 233 ; 3 B. & C. 45. j-2 Vt. 265. k-23 Vt. 265 ; 9 Barb 511; 19 Id 416 ; n Cush. 282, 39 Me. 496:2 H. Bl. 504 : 3 B. & P. 69 : see 6 East. 661. As to what con- stitutes delivery see 4 Mass 661 ; 8 Id. 287; 10 Id. 308; 14 Johns. 167; 15 Id. 349. CONTRACTS. 211 bellrery is not necessary to complete a sale of personal property, as between the seller and buyer; 1 but as against third parties possession retained by the seller raises a presumption of fraud, which presumption is by some authorities regarded as conclusive ; m by others merely as strong evidence of fraud to be left to the jury." The rules requiring actual full delivery are sub- ject to modification in case of bulky articles. A condition requiring delivery may be annexed a& a part of any contract of transfer.? In the absence of contract the amount of transporta- tion to be performed by the seller to constitute delivery is determined by general usage. See PERFORMANCE; SALES, below. DEMAND. In causes of action arising upon contract it is frequently necessary to secure to the party all his rights and to enable him to bring an action, that he should make a demand upon the party bound to perform the contract or discharge the obligation. Thus, where prop- erty is sold to be paid for on delivery, a demand must be made and proved on trial before bring- ing an action for non-delivery ,1 but not if the seller has incapacitated himself from delivering them. 1 " And this rule and exception apply to contracts for money. 8 DEPENDENT contracts are those by which it is not the duty of the contractor to per- form until some obligation contained in the same agreement has been performed by the other party.' DEPOSIT. See BAILMENTS. DESCRIPTION is that which is said or written to designate a person or thing, or demonstrate condition, mode, object, subject- matter, or whatever forms a part of, or is essen- tial to, the contract. Several descriptions may be employed to denote the same person or object ; and the rule of law in such cases is, that if one of the descriptions be erroneous it may be rejected, if, after it is expunged, enough will remain to identify the person or thing in- tended. That is, if there be an adequate de- scription with convenient certainty of what was contemplated, a subsequent erroneous addition will not vitiate it. On the other hand, if the matter stand in doubt upon the words, whether they import a false reference or description, or whether they are words of restraint that limit the generality of the former words the law will never intend error or falsehood. DEVIATION. When a' contract is to huild a house according to the original plan, and a deviation takes place, the contract must l>e traced as far as possible, and the additions, 1-Story Sales. m-i Cranch, 309; 2 Munf. 341 ; 4 I M 'Cord, 294: i Overton, 91 ; 146. Mon. 533; 18 Penn. \ St. 113; 4 Harring. 458 ; 2 111.296; i Halst. 155; 5 j C mn. 196 ; 12 Vt. 653 ; 23 Id 82 ; 4 Fla. 219 ; 9 Johns. v -.7 : i Campb. 332 ; 2 T. R. 587. n-Cowp. 432 ; 2 B ft P. 59 : 3 B. & C. 368 : 4 Id. 652 ; 5 Rand. 211 ; i Bail = 68 ; 3 Verg. 475 : 7 I d - 44 : 3 J- J- Marsh, 643 ; 4 N V- 33> 5^ I 2 Met. Mass. 99 : 18 Me. 127 ; 5 La. An. i i Texas, 415. 0-5 S. ft R. 19 ; 12 Mass. 400 ; 16 Me 49. |-ioMe. 147. q-sT. R. 409; 3 M. & W. 254 3 Price Ex. 58: i Tayl. (N. C.) 149. r-io East ^9; 5 B. & Aid. 712: 2 Eibb. 280; i Vt. 25: 4 Mass 474; 6 Id. 61 ; 16 Id. 453; 3 Wend. 556; 9 Johns. 361; 2 Me. 308; 5 Munf. i. s-2 Dowl. & R. 55; if any have been made, must be paid for ac- cording to the usual rate of charging." DISAFFIRMANCE, or a declaration of disagreement to conform to the terms of a void- able contract already entered into, may be made by an infant declaring that he wil 1 not abide by his contract with another, and in many other cases. Disaffirmance is express or implied express when the declaration is made in express terms that the party will not abide by the contract ; implied when a party does an act which plainly manifests his determination not to abide by it, as when an infant made a deed of his land, and on coming of age he made a deed of the same- land to another. v DISCOUNT. See INTEREST ; MONEY. DISSENT. The law presumes every per- son to whom a conveyance has been made has given his assent to it, because it is supposed to be for his benefit. To rebut this presumption his dissent must be expressed. w See ASSENT, above. DISSOLUTION. See PARTNERSHIP. DIVISIBILITY. See APPORTIONMENT, above ; ENTIRETY, below. EARNEST is the payment of a part of the price of goods sold, or the delivery of a part of such goods, for the purpose of binding the con- tract. The effect of earnest is to bind the goods sold ; and upon being paid for without default the buyer is entitled to them. But, notwith- standing the earnest, the money must be paid on taking away the goods, because no other time for payment is appointed. Earnest only binds the bargain, and gives the buyer a right to demand, but a demand without the payment of the money is void. After earnest given the vendor cannot sell the goods to another without a default by the purchaser ; and therefore if the latter does not come and pay, and take the goods, the vendor ought to go and request him, and then if he does not come, pay for the goods and take them away in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person.* ENTIRETY. If the part of the contract to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law ; such a contract is generally severable.J The same rule holds where the price to be paid is clearly and distinctly apportioned to the differ- ent parts of what is to be performed, although the latter is in its nature single and entire.* 1 Chitty Pr. 57, n. n., 438, n. a. t-Hammond Partn 17, 29, 30, 109. U-3 B. & Aid. 47; see i Ves. Ch. 60; 10 Id. 306 : 13 Id. 73, 81 ; 14 Id. 413: 6 Johns. Ch. 38; 3 Cranch, 270 ; 5 Id. 262 ; 9 Pick. 298 ; Chitty Contr. 168. v-2 Dev. & 6.320; 10 Pet. 58; 13 Mass. 371,375. W-4 Mas. C. C. 206 ; ii Wheat. 78 ; i~Binn. 502 ; 2 Id. 174 ; 6 Id. 338 ; 12 Mass. 456 ; 17 Id. 552 ; 3 Johns. Ch. 261 ; 4 Id. 136, 529. x-i Salk. 113 ; 2 Bl. Comm. 447; 2 Kent Comm. 389; Ayliffe Pand. 450; 3 Camp. 426. y-3 B. & P. 162; 3 Bing. 285; n Wheat. 237-251 ; a B. & Aid. 882 ; 14 Wend. 257 ; 4 Barb. 36, 47 ; 19 Id. 313 ; 8 Foster, 290 ; 25 Penn. St. 203. r.--, B. & Aid. 942 ; 4 A. & E. 448; 2 M. & W. 602; 10 Johns. 203: I Kern 35 ; 5 Ellis & B. 772 ; 34 E. L. & E. 178 ; 6 Ellis & B 355 ; 34 Me. 107 ; i Parson* Mar. L. 45, n. t . 212 CONTRACTS. But the mere fact that the subject of the con- tract is sold by weight or measure, and the value is ascertained by the price affixed to each pound, or yard, or bushel, of the quantity con- tracted for, will not be sufficient to render the contract severable.' And if the consideration to be paid is single and entire, the contract is entire, although the subject of the contract may consist of several distinct and wholly inde- pendent items. b EQUALITY. The law presumes that con- tracting parties act upon a perfect equality. When, therefore, one party uses any fraud or 'deceit to destroy this equality, the party ag- grieved may avoid the contract. In case of a conveyance or grant to two or more persons jointly without designating what each takes, they are presumed to take in equal proportions. EQUIVALENT. Sometimes a condition must be literally accomplished in the particular form specified; and some maybe fulfilled by an equivalent. When such appears to be the intention of the parties, as, if A. promises to pay B. one hundred dollars, and thereupon A. dies, A.'s executors may fulfil A.'s engagement ; for it is equivalent to B. whether the money be paid by A. or his executors. 4 EQUIVOCAL. It is a general rule in the construction of contracts that when an expres- sion may be taken in two senses, that sense shall be preferred which gives it effect. See CON- STRUCTION ; above. ERASURE or obliteration in an instrument of writing renders it void or not under the same circumstances as interlineation." See ALTERA- TION, above ; INTERLINEATION, below. EXCEPTIONS are such clauses as ex- clude something from the effect or operation of the contract which will otherwise be included. They differ from reservations, exceptions being always a part of the things granted, while the lat- ter is of things not yet existing but which are newly created or reserved. See CONVEYANCES. FORMALITY. No precise form of words is necessary even in a specialty.* On the contrary, it is so far immaterial in what part of an instru- ment any clause is written, that it will be read as of any place and with any context, and, if necessary, transposed in order to give effect to the certain meaning and purpose of the parties. 1 FRAUD avoids every contract, and annuls every transaction into which it enters. The fraud must be material to the contract or tran- saction which is to be avoided because of it; for if it relate to another matter, or to this only n-s Met. 452; 12 Id. 286; 21 N. Y. (7 Smith) 397. *-22 Pick. 452; 3 Watts. & Serg. 109; 14 C. B. 195; 25 TE. L. & E. 257; 2 Jones (N. C.) 403; Id. 454- -4 Day, 395. d-Rolle Abr. 451 ; i Bouv. Inst. n, 760. e- See 5 Pet. 560; xi Co. 88; 4 Cruise Die. 368; 13 Vin. Abr. 41; Fitz. 207; 5 Bingh. 183; 3 C. & P. 55; a Wend. 555; n Conn. 531 ; 5 Mort. IQO; 2 La. 291 ; 3 Id. 56; 4 Id. 27o. f-s Dow. 159; i Barb. 471 ; 5 Id. 01. |c-4 Scott N. R.; 3 Man. & G. 446 ; 15 Ohio, 500. fl-4 M. & W. 115; S C. B. 107; 26 Eng. L. & Eq. 261; 15 C B. 597: 29 Eng. L. & Eq. 290; 25 Penn. St. 413. i-2 Mass. 112 ; 25 Me. 243 ; n Vt. 615 ; x Dev. 69. j-i Hill, 311 ; 14 Wend. 31 ; x Woodb. & M. 334; 4 Paige. 537. k-i Greenl. 376; a Mason, 236; 9 Gill & Johns. 20; 11 Penn. St. 367; 20 Mo. 546; 21 Barb. 585; 20 in a trivial and unimportant way, it affords na ground for the action of the court. f It must, therefore, relate distinctly and directly to this contract; and it must affect its very essence and substance.* The fraud must work an actual injury ; h for if no damage be caused by the fraud, no action lies. 1 If a purchaser makes false representations of his ability to pay, his property, or credit, the sale is void, and no title passes between the parties to the contract.! It must appear that the injured party not only did in fact rely upon the fraudulent statement, 1 but had a right to rely upon it in the full belief of its truth ; for otherwise it M'as his own fault or folly, and he cannot ask the law to relieve him from the consequences. 1 Concealment is not in law so great an offence as misrepresenta- tion. Concealment, to be actionable, must of course be of such facts as the party is bound to communicate." 1 A false representation, in order to have the full effect of fraud, must relate to a substantial matter of fact, and not merely to a matter which rests in opinion, or estimate, or judgment. Where a party rescinds a contract on the ground of fraud, he must do so at once on discovering the fraud. If both parties act fraudulently, neither can take advantage of the fraud of the other, for the law will not inter- fere between them ; and this is so, if both par- ties are acting fraudulently, although the begin- ning, and the greater fraud, may be on one side or the other.P And if one acts fraudu- lently, he cannot set his own fraud aside for his own benefit ; for no man can be per- mitted to found any rights upon his own wrong.' Therefore if one gives a fraudulent bill of sale of property for the purpose of de- frauding his creditors, he cannot set that bill aside and annul that sale, although those who are injured by it may. r Material misrepresentations which go to the substance of a contract, avoid it, whether they are caused by mistake, and occur wholly without fault, or are designed and fraud- ulent. 8 GAMING when considered in itself, with- out regard to the end proposed by the parties interested, is not contrary to natural equity; the contract is considered a reciprocal gift which the parties make under certain conditions. Some games depend upon skill alone, as billiards; others upon chance, as a lottery; and others of both skill and chance, as backgam- mon. In general, at common law, all games are lawful unless some fraud has been practised. Id. 253. 1-n Wend. 374; 463.95. m-3 Eng. L. & Eq. 17; 3 Conn. 413; 5 Ala. 596; iVeates,307: 5 Penn. St. 467 ; 8 N. H. 463 ; 10 Clark & F. 934 ; i Dev. 351 ; 18 Johns. 4o_ ; 6 Humph. 36. n-5 Blackf. 8 ; 3 Bulstr. 94; 18 Me. 418; 7 Scott, 341 ; i Simons, ! M. 8 i ; 6 Scott, 540; 3 B. & C. 623. 0-5 M. & W. 83; 24 Wend. 74; qB. & C. 59: 4 Mass. 502 ; 4 Paige, 537; 4Denio,554; Baldw. 331 ; 8 Barb. 10 ; 10 Ala. 478. p-i McLean. 490 ; i Ohio St. 262 ; 20 Wend. 24 ; i Fain. 71 ; 27 Miss. 13. 0-9 B. &C. 532 ; 5 Mass. 116; 10 Me. 281 ; 2 Har- ring. (Del.) 128. r-g Q. B. 166; 18 Me. 231. (1-3 Mo. 477; 4 How. (Miss.) 435; 4 Scairi. 569; Coxe. 48; i Woodb. & M. 90 ; a Id. 246 ; 3 Story, 700 ; 4 B. Mon. 601. t-See CONSTRUCTION ; general rubs ; and notes x, y, z, above. CONTRACTS. 213 or such games are contrary to public policy. Each of the parties to the contract must have a right to the thing played for. He must have given his free and full consent, and not have been entrapped by fraud. There must be equality in the play, and the play must be con- ducted fairly. But even when all these rules have been observed, the courts will not counte- nance gaming by giving too easy a remedy for the recovery of money won at play.* When fraud has been practised, as in other cases, the contract is void. In many of the States gaming is prohibited under penalty, and no recovery of money lost or won at gaming can be had. GOOD-WILL, GOODS AND CHATTELS, WARES AND MERCHANDISE. See SALES. HAZARDOUS contracts are those in which the performance of one of its objects depends upon an uncertain event." See INSUR- ANCE, MARITIME LAW. HYPOTHECATION. See BAILMENTS, CON- VEYANCES, PLEDGE. ILLEGALITY of a contract is in general a perfect defence. This seems too obvious to need illustration. The objection that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but it is founded on general principles of policy, which the defendant has the advantage of, con- trary to the real justice, as between him and the plaintiff, by accident. The principle of public policy is this : No action can be founded upon or arise out of fraud. T No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating, or otherwise, the cause of action appears to arise from an illegal or an immoral consideration, or the transgression of a positive law of the country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the de- fendant was to bring his action against the plaintiff, the latter would then have the advan- tage of it ; for where both are equally in fault* the condition of the defendant is better than lhat of the plaintiff.* IMMORALITY. See CONSIDERATION, above. INCAPACITY, INCOMPETENCY. See PAR- TIES, below. INDIVISIBILITY. See APPORTIONMENT, EN- TIRETY, above. INFANTS. See PARTIES, below. INTENTION. See CONSTRUCTION, above. INTERPRETATION is the discovery and representation of the true meaning of any signs used to convey ideas.? The " true mean- ing" of any signs is that meaning which those t-Bac. Abr. n-Sce i Bouv. Inst. n. 707; i J. J. larsh, 596; 3 Id. 84. v-2 Kent Comm. 466; i Story Contr. 592; 22 N. Y. 272. w-Per Mansfield, Hoi- man vs. Johnson, Cowper, 343 ; 4 Comst. 449. x- Broom Max. (3 Lond. Ed.) 664 ; Bac. Max. Rej. 19. y. who used them were desirous of expressing. A person adopting or sanctioning them " uses " them as well as their immediate author. Both parties to an agreement equally make use of the signs declaratory of that agreement, though one only is the originator, and the other may be entirely passive. The most common signs used to convey ideas are words. When there is a contradiction in signs intended to agree, resort must be had to construction ; that is, the drawing of conclusions from the given signs, respecting ideas which they do not express. Construction is usually but erroneously con- founded with interpretation. Close interpreta- tion is adopted if just reasons, connected with the formation and character of the text, in- duce us to take the words in their narrowest meaning. This species of interpretation has generally been called literal, but the term is inadmissible. 1 Extensive interpretation (or liberal) adopts a more comprehensive significa- tion of the word. Extravagant interpretation is that which substitutes a meaning evidently beyond the true one ; it is, therefore, not genuine interpretation. Free or unrestricted interpretation proceeds simply on the general principles of interpretation in good faith, not bound by any specific or superior principle. Limited or restricted interpretation is when we are influenced by other principles than are strictly hermeneutic ones. a Predestined inter- pretation takes place if the interpreter, laboring under a strong bias of mind, makes the text subservient to his preconceived views or desires. This includes artful interpretation, by which the interpreter seeks to give a meaning to the text other than the one he knows to have been in- tended. There can be no sound interpretation without good faith and common sense. The object of all interpretation and construction is to ascer- tain the intention of the authors, even so far as to control the literal signification of the words ; for words are to be so understood that the subject-matter may be preserved rather than destroyed. 5 Words are, therefore, to be taTtcn as those who used ihem intended, which must be presumed to be their popular and ordinaiy signification, unless there is some good reason for supposing otherwise, as where technical terms are used. When there is no ambiguity in the words, then no exposition contrary to the words is to be made. Wl*en words have two senses, of which one only is agreeable to the law, that one must prevail." 1 When they are in- consistent with the evident intention they will be rejected.' When words are inadvertently omitted, and the meaning is obvious, they will be supplied by inference from the context. Im- possible things cannot be required. The sub- ject-matter and nature of the context, or its objects, causes, effects, consequences, or prece- Lieber, Leg. & Pol. Hermeneutics. jE-Lieber Herm. 66. H-Ernesti Inst. Interpretis. b-Bac. Max. Reg. 3, Plowd. 156; 2 Bl. Comm. 380; 2 Kent Comm. 555. C- Co. Lilt. 147; Broom Max. (3d Lond. Ed.) 850. d- Cowp. 714. e-2 Atk. Ch. 32. 214 CONTRACTS. dents, or the situation of the parties, must often be consulted in order to arrive at their inten- tion, as where words have, when literally con- strued, either no meaning at all or a very absurd one. The whole of an instrument must be viewed together, and not each part taken sepa- rately ; and effect must be given to every part, if possible. Assistance must be sought from the more near before proceeding to the remote. When one part is totally repugnant to the rest A will be stricken out ; but if it is only explan- atory it will operate as a limitation. Reference to the lex loci on the usage of a particular place or trade is frequently necessary in order to ex- plain the meaning. Words spoken cannot vary the terms of a written agreement; they may overthrow it. Words spoken at the time of the making of a written agreement are merged in the writing. 11 There are exceptions to this rule, as in a case of fraud. 1 Where there is a latent ambiguity which arises only in the application and does not appear upon the face of the instrument, it may be supplied by other proof } for an ambi- guity which arises out of a fact may be removed by proof of the fact. k The rule that an agree- ment is to be construed most strongly against the party benefited can only be applied in doubtful cases. The more the text partakes of a solemn compact, the stricter should be its construction. Penal statutes must be strictly interpreted; remedial ones liberally j 1 and gen- erally, in regard to statutes, the construction given them in the country where they were en- acted will be adopted elsewhere. The general expressions used in a contract are controlled by the special provisions therein. In agreements relating to real property, the lex rei sites pre- vails ; in personal contracts, the lex loci con- tracius, except where they are to be performed in another country, and then the law of the latter place governs." 1 When there are two repugnant clauses in a deed which cannot stand together, the first prevails ; with a will the re- verse is the case. In all instruments the written part controls the printed. Dates and amounts written at length are preferred before figures. In addition to the above rules, there are many presumptions of law relating to agree- ments, such as, that the parties to a simple contract intend to bind their personal repre- sentatives ; that where several parties contract without words of severally, they are presumed to bind themselves jointly; that every grant carries with it whatever is necessary to its en- joyment ; when no time is mentioned a reason- h-s Co. 26: 2 B. &C. 634; 4 Taunt. 779. i-i S. & R. 464 ; 10 Id. 292. |-i Ball. 426 : 4 Id. 340 ; 3 S. & R. 609. k-Bac. Max. Reg. 23; 8 Bingh. 247: see i Pow- ell Dev. 477; 2 Kent Comm. 557; Broom Max. (3d Lond. Ed.) 541 : 13 Pet. 97 : 8 Johns. 90; 3 Halst. 71. I-i Bl. Comm. 88 ; 6 W. & S. 276 ; 3 Taunt. 377. m-2 Mass. 88; i Pet. 317; Story Confl. L. 242 ; 4 Cow. 410, ft.; 2 Kent Comm. 39, 457, notes; 3 Conn. 253, 472: 4 Id. 517; i Wash. C. C. 253; see 12 Mass. 4. n- See CONSTRUCTION, above. 0-3 See Binn. 337; 48. & R. 279 ; 7 Id. 372 ; 5 Id. 100 ; 10 Mass. 384 ; 3 Cranch. 180; 3 Rand. 586. |-2 Watts, 347. q-i Penn 388. r-i Dallas, 65, 348; Addis. Contr. 285. tt-Hamm. able time is meant; and other presumptions arising out of the nature of the case." It is the duty of the court to interpret all written instruments, written evidence.? and foreign laws.i See ALTERATION ; CONSTRUC- TION ; ERASURE, above. JOINT CONTRACTS are those in which the contractors are jointly bound to perform the promise or obligation therein contained, or en- titled to receive the benefit of such promise or obligation. It is a general rule that a joint contract survives, whatever may be the benefi- cial interests of the parties under it. When a partner, covenanter, or other person entitled, having a joint interest in a contract not running with land, dies, the right to sue survives in the other partner, etc. r And when the promise or obligation is to perform something jointly by the promissors or obligors, and one dies, the action must be brought against the survivor.' When all the parties interested in a joint con- tract die, the action must be brought by the executors or administrators of the last surviving obligee against the executors or administrators of the last surviving obligor.' JUDGMENT. The whole purpose of the law being to settle questions and terminate dis- putes, it will not permit a question which has been settled to be tried again. But the party insisting on the former recovery as a bar to an action, must show that the record oi the former suit includes the matter alleged to have been determined." Consequently, where the decla- ration in the first suit slates a particular matter as ihe ground of aclion, and issues taken by the defendant, parol proof is inadmissible to show thai a different subject was litigated upon the trial. T A judgmenl on the same matter in issue is a conclusive bar." LAW OF. See CONSTRUCTION, INTERPRETA- TION, above. LEGISLATION. All those whose inter- ests are to be affected by legislation may, both morally and legally, for the protection or ad- vancement of their interesls, use all means of persuasion which do nol come too near bribery or corruption ; but ihe promise of any personal advanlage to a legislator is open to objection, and therefore void. 1 And a contract tending to corrupt appointment to office, even by a private corporation, is, for a similar reason, void.* LETTERS. Where a proposition is made by lelter, the mailing a letter containing an acceptance of the proposilion completes the contract.* Partn. 156; Barb. Partn. t-Addis. Contr. 285. U-3 Comst. 173. v-3 Gray, 83 ; 2 Kernan, 84; Id. 343. w- 20 Howell's St. Tr's 538 ; 2 Gallison, 229 ; 4 Watts, 191 ; Peters C. C. 202 ; 3 Cowen, 120; 4 Id. 559 : 3 East. 346; i G. Greene, 421 ; 3 Denio, 238 ; 4 Comst. 71. x-5 Wattf & S. 315 ; 6 Dana, 366 ; 4 M. & W. 361 : 7 Watts, 152 ; 3 Esp. 253; 18 Pick. 472; i Aikens, 264; 5 Halst. 87; 10 Barb. 489; 16 How. 341. y-Davidson vs. Seymour, i Bosw. 88. z-i B.& Aid. 681 ; 6 Hare, i : I Ho. Lds. Cas. 381 ; 7 M. & W. 515; 21 N. H. 4i ; 4 Paige Ch. 17; 11 N. Y. 441 ; 4 Ga. i ; 12 Conn. 431 ; 7 Dana, j8i ; f Port. Ala. 605 : 5 Penn. St. 339 ; 9 How. 390 ; 4 Whesrf 228 : see i Pick. 281 ; Parsons Mar. L. ax, n. CONTRACTS. 215 MAINTENANCE. See CHAMPERTY, above. MANDATE. See BAILMENTS. MARITIME CONTRACTS include, among others, bills ot lading, charter parties, contracts of affreightment, marine hypotheca- tions, contracts for maritime service, in build- ing, repairing, supplying, and navigating ships or vessels, contncis and quasi contracts for averages, contributions, and jettisons.* The term " maritime contract " in its ordinary and proper signification does not strictly apply to contracts relating to the navigation of our great inland lakes and rivers ; and yet contracts in respect to their navigation from State to State are within the admiralty jurisdiction of the United States to the same extent as though they were arms of the sea and subject to tidal influ- ences. 1 * Such contracts are, therefore, denomi- nated maritime contracts. MEMORANDUM is an informal written instrument recording some agreement or fact, and is usually commenced thus, " Memoran- dum, that it is agreed," etc., or, " Be it remem- bered that," etc. It is also a noting of the chief points of the agreement or contract. It should, to have any effect, be signed by both parties, or by a disinterested person who has a competent knowledge of its character and the circumstances to which it refers. If the par- ties sign it, it binds them. If a witness sign it, it is merely corroborative evidence of the matters noted. MISNOMER. The use of a wrong name or a mistake in a name in contracts will not, in general, avoid the contract if the party can be ascertained. MIS-READING OR MIS-RECITAL of an agreement, contract, or other written instrument to an illiterate or blind man who is a party to it amounts to a fraud, because the contract never had the assent of both parties." 1 MISREPRESENTATION must be both false and fraudulent in order to make a party making it responsible to the other for damages.' Misrepresentation as to a material part of the consideration will avoid an executory contract/ A misrepresentation, to constitute fraud, must be contrary to fact ; the party making it must a-See 2 Gall. C. C. 398, ft seq. ; 20 How. U. S. 393 ; 7 Id. 729 ; 19 Id. 171. b-i2 How. U. S. 443, 468. C-n Co. 20; Ld. Raym. 384; Hob. 125; see i Roper Leg. 131 ; 19 Ves. Ch. 381. d-$ Co. 19; 6 East. 309; Dane Abr. c. 86, A. 3, j> 7 : 2 Johns. 404 ; 12 Id. 469 ; 3 Cow. 537. 6-3 Conn. 413; 10 Mass. 197: i Const. 328, 475; Met. Yelv. 21 a. n i ; PeakeCas. 115 ; T, Campb. 154 ; Marsh. Inst. b. i c. 10 s. i ; and see 5 M. & S. 380 ; 12 East. 638 : 3 Bos. & P. 370. f-i Phillips Ins. % 630, 675. g-2 Kent Comm. 471 : i Slory Eq. Jur. $ 142 ; 4 Price, 135 ; 3 Conn. 597; 22 Me. 511 ; 7 Gratt. 64, 239; 6 Ga. 458: 5 Johns. Ch. 182 ; 6 Paige Ch. 197 : i Story C. C. 172 ; 1 Woodb. & M. 342. h-s Q. B. 804; 9 Id. 197; 10 M. & W. 147; ii Id. 401 ; 14 Id. 651 ; 7 Cranch. 60 : 13 How. 2ii ; 8 Johns. 25:7 Wend. 10 ; T i Id. 375 ; i Met. CMass.) i ; 27 Me. 309 ; 7 Vt. 67, 79 : 6 N. H. 99. i-i8 Pick. 96; i Mel. (Mass.) 193; 3 Id. 469 ; 6 Id. 245; 27 Me. 309; 16 Wend. 646, 16 Ala. 785; i Bibb. 244; 4 B. Mon. 601 ; 3 Cranch. 281. |-Rawle Cas. (sd Ed.) 622 : 14 N. H. 3ji ; i Woodb. & M. C. C. oo, 342 ; 2 Id. 298 ; 2 Strobh. Eq. 14; 2 Bibb. 474 : 8 B. Mon. 23 : 4 How. (Miss.) 485: 3 Cranch, 282 ; 3 Yerg. 178; 19 Ga. 448 : 5 Blackf. 18; see 13 Me. 262; 12 Pet. 26; 23 Wend. 160; 7 Barb. 65. It -Story Eq. Jur. g no. 1- Jeremy know it to be so,* excluding cases of mere mis- take, 11 and including cases where he falsely as- serts a personal knowledge, 1 and one which gave rise to the contracting of the other party> MISTAKE is some unintentional act, omis- sion, or error arising from ignorance, surprise, imposition, or misplaced confidence. 11 That result of ignorance of law or fact which has misled a person to commit that which, if he had not been in error, he would not have done. 1 As a general rule, mistakes of law do not furnish an excuse for wrongful acts, or a ground of relief from the consequences of acts done in consequence of such a mistake. An act done or a contract made under a mistake or ignor- ance of a material fact is voidable and reliev- able. n The rule applies to cases where there has been a studied suppression of facts by one side, and to cases of mutual ignorance or mis- take. But the fact must be material to the contract, i. e., essential to its character, and an efficient cause of its concoction.? A mistake sometimes prevents a forfeiture in cases of viola- tion of revenue laws.' An award may be set aside for a mistake of law or fact by the arbitrators apparent on the face of the papers.' The word which the parties intended to use in an instrument may be substituted for one which was actually used by a clerical error.* MODIFICATIONS or changes in the contract may be provided for at the time of making the contract by a condition which shall have that effect ; for example, if I sell you a thousand bushels of grain upon condition that my crop shall produce so much, and it only produces eight hundred bushels, the contract is modified; it is for eight hundred bushels, or whatsoever is produced, and no more. A con- tract may be modified by the consent of both parties after it has been made.' MUTUALITY. See OBLIGATION OF, below. NAKED CONTRACTS are those made without consideration ; for this reason they are void. A naked contract is a mere agreemenf without the requisites necessary to confer upon it a legal obligation to perform." The term Ex. Jur. B. 2 Pt. 2, p. 358. m-6 Clark & F. Ho. L 964-971 ; 9 M. & W. 54 ; 5 Hare Ch. 91 ; 8 Wheat 21, ; i Pet. 15: 9 How. 55; 7 Paige Ch. 99, 137; 2 Johns. Ch. 60: Story Eq. Jur. $ 125-138; see 2 M'Cord Ch. 455: 6 Harr. & J. 500: 25 Vt. 603; De Gex M. & G. 76 ; 21 Ala. (N. S.) 252 ; 13 Ark. 129 ; 6 Ohio, 109 : n Id. 480; 21 Ga. 118: Beasl. Ch. 165 n-Story Eq Jur. \ 140. 0-3 Burr. 21 ; 26 Beav. Rolls. 454 : 12 Sim. Ch. 465 ; 9 Ves. Ch. 275 ; 3 Chanc Cas. 56 ; 2 Barb. 475 ; i Hill, 287; ii Pet. 71 ; 8 B. Mon. 580; 4 Mas. C. C. 414 ; 5 R. I. 130. p-i Ves. Ch. 126, 210 : De Gex & S. 83; 6 Binn. 82; u Gratt. 468: 2 Barb. 37; 2 Sandf. Ch. 298; 13 Penn. St. 371. q-Paine C. C. 129; Gilp. Dist. Ct. 235; 4 Call, 158, and some other cases; i Bishop Cr. L. 697: 4 Cranch, 347: n Wheat. I ; H Id. i : i Mass. 347. r-2 B. & P. 371 ; i Dall. 487; i Sneed. 321 ; see 6 Met. (Mass.) 136; 17 How. 344: 6 Pick. 148; 2 Gall. C. C. 61 : 4 N. H. 357; 3 Vt. 308; 6 Id. 529 ; 13 III. 461 ; 2 " . & Aid. 691 ; 3 Id. 237 : i Bingh. 104; i Dowl. & R. 366; i Taunt. 152; 6 Id. 254; 3 C B. 705; 2 Exch. 344: 3 East. 18. S-Adams Eq. 169. etseq.; 13 Gray, 373 : 6 Ired. Eq. 462; 17 Ala. (N. S.| 562. t-See i Bouv. Inst. n. 733. 11-3 McLean. C. C. 330 ; 2 Denio, 403 ; 6 Ired 480 ; i Strobh. 329 ; i G. 294 ; i Dougl. 188. 216 CONTRACTS. and the rule which decides upon the nullity of its effects are borrowed from the civil law. T NEGOTIABLE CONTRACTS. See BILLS OF EXCHANGE, BONDS AND NOTES. NOTICE. When contracts express that they are to be done " on notice," either a gen- eral or some specified notice, such notice is in- dispensable." Generally, where anything is to be done by one party on the performance of some act by the other, this other must give notice of such act. 1 OBLIGATION OF. The legal obliga- tion of a contract consists in the right of either party to have it enforced against the other, or to recover compensation for its breach by due process of law.' Obligations are absolute when they give no alternative to the obligor, but requires fulfilment according to the engagement. Accessory obli- gations are dependent on the original or princi- pal obligation as, if I sell you a house and grounds, the principal obligation on my part is to make you a title for it ; the accessory obli- gation is to deliver you all the title papers which I have relating to it, and take care of the estate till it is delivered to you and the like. Alternative obligations are those where a per- son engages to do or to give several things in such a manner that a payment or performance of one will acquit him of all as if A. agrees to give B., upon sufficient consideration, a horse or one hundred dollars, it is an alterna- tive obligation. 1 It is necessary that two or more things should be promised disjunctively; where they are promised conjunctively there are as many obligations as there are things enumerated ; but where they are in the alterna- tive, though they are all due, there is but one obligation, which may be discharged by the payment or performance of any of them. The choice of performing one of the obligations belongs to the obligor, unless it is expressly agreed that it shall belong to the creditor.* If one of the acts is prevented by the obligee, or the act of God, the obligor is discharged from both. b Civil obligations are those having a binding operation in law, and which gives the obligee the right of enforcing it in a court of justice. They are such engagements as are binding on the obligor. They are divided into express, implied, pure, conditional, absolute, al- ternative, determinate, indeterminate, divisible, indivisible, single, penal, joint, and several ; they are, also, purely personal, purely real, or mixed. Conditional obligations are those whose execu- tion is suspended by a condition which has not been accomplished, and subject to which it has been contracted. Determinate obligations are those having for their object a certain thing; as, a delivery of the horse, H.; this obligation *an only be discharged by delivering the identi- tal horse. Divisible obligations are those that, T-Dijt. 19, 55 ; see Fonbl Eq. 335 : 2 Kent. Comm. 364 : 6 Toubl. 10, n. 13 w-2 Wms. Saund. 62, a. n. (4) ; a Bulstr 144; 23 Pick. 400 ; i Met. 189. X-6M.&W. 44*; 8 Dowl. P. C. 377; 4 Jur. 509; 7 M. & W. 126; V. Arb. "Condition" (A. d.) pL 15 S. C. n*m. Cro. though being a unit, are susceptible of being lawfully divided with or without the consent of the parties. See APPORTIONMENT, above. Express obligations are those by which the obligor binds himself in express terms to per- form his obligation. Imperfect obligations are those which are not binding on us as between individual and individual, but for whose per- formance we are accountable to the Almighty only, such as charity or gratitude; in this sense an obligation is a mere duty.* Implied obligations are those which arise by implication of law ; as, if one send you daily a loaf of bread, a newspaper, or periodical, or the like, as to a regular customer or subscriber, without any express authority, and you make use of it in your family, the law raises an obligation on your part to pay the baker or publisher the value of the bread, newspapers, or periodicals, etc. Indeterminate obligations are those where the obligor binds himself to deliver one of a cer- tain species, as a horse, and the delivery of any horse will discharge the obligation. Indivisi- ble obligations are those not susceptible of di- vision ; as, if I promise to pay you a hundred dollars, you cannot assign one-half of this to another so as to give him a right of action against me for his share. Joint obligations are those by which two or more obligors promise the obligee to perform an obligation. When the obligation is only joint, and the obligors do not promise separately to fulfil their engage- ment, they must be all sued, if living, to com- pel the performance, or, if they be dead, the survivors must all be sued. Natural or moral obligations are those which cannot be enforced by action, but which is binding on the party who makes it in conscience and natural justice. Penal obligations are those embraced in a penal clause, which is to be enforced if the principal obligation is not performed. See DAMAGES, above. Perfect obligations are those which give a right to another to require us to give another something or to do something ; they are either natural, moral, or civil. Personal obligations are those by which the obligor binds himself to perform an act without directly binding his property for its performance ; it also denotes an obligation in which the obligor binds himself only, not including his heirs or representatives. Primitive or principal obligations are those which are contracted with a design that they should be the first fulfilled. Principal obligations are those which are the most important objects of the engagement of the contracting parties. Pure or simple obli- gations are those which are not suspended by any condition; either because contracled with- out condition, or because contracted with one which has been fulfilled. Real obligations are those by which real estate and not the person is Jac. 432 ; 2 C. & P. 610; i Bulstr. 12. y-2 Kas. 135 z-Poth. Ob. Pt. a, Ch. 3, Art. 6, No. 245 a-Dougl 14; i Ld. Raym. 279; 4 Moit. (N. S.) 167. l-See i Evans Poth. Ob. 52-54: Viner. Abr. Condition (S. C.). C-4 Wheat. 197; 12 Id. 318, 337. d-Poth. Obi. Art Prel. B. x. CONTRACTS. 17 liable to the obligee for the performance. As, when a person buys an estate subject to a mort- gage, he is not liable for the debt, but the estate is. Secondary obligations are those which are contracted to be performed in case the primitive cannot be. As, if I sell you my house, I (pri- marily) bind myself to give you a title; if I cannot, my secondary obligation is to pay you damages for my non-performance of the pri- mary obligation. Several obligations are those by which one or more individuals bind them- selves separately to perform an engagement. In this case each obligor may be sued separately ; and if one or more of them be dead, their re- spective legal representatives may be sued. Single obligations are those without penalty, as where I promise simply to pay you one hundred dollxrs. IMPAIRING THE OBLIGATION OF CONTRACTS. The constitution of the United States pro- vides that " no State shall- pass " " any law impairing the obligation of contracts."' In general, only contracts are embraced in this provision respecting property or some object of value, and confer rights which can be asserted in a court of justice. The law of place acts upon a .contract, and governs its construction, validity, and obligation, but con- stitutes no part of it. The law explains the stipulations of the parties, but never supercedes or varies them. This is very different from supposing that every law applicable to the sub- ject-matter, as statutes of limitation and insol- vency, enters into and becomes a part of the contract ; this can neither be drawn from the terms of the contract, nor presumed to be con- templated by the parties to the contract. There is a broad distinction taken as to the obligation of a contract and the remedy upon it. The abolition of all remedies by a law operating at the present time is, of course, an impairing of the obligation of the contract. But a legisla- ture may vary the nature and extent of reme- dies, as well as the times and modes in which these remedies may be pursued, and for suits not brought within such times as may be pre- scribed. A reasonable time within which rights are to be enforced must be given by laws which bar certain suits/ The meaning of the obliga- tion is important with regard to the distinction taken between the laws existing at the time the contract is entered into and those which are enacted afterwards. The former are consid- ered to have been in contemplation of the par- ties, and so far a part of their contract ; the latter are said to impair, provided they affect the contract at all. See LAWS. OFFERS or propositions to do a thing should contain a right, if accepted, of compel- ling the fulfillment of the contract ; and this -Const. U. S. Art. i, j> 10, clause i ; see title LAWS, sxibdiv. IMPAIRING OBLIGATION OF CONTRACTS, f-3 Pet. 290 : i How. 311 : 2 Id. 608 ; a Gall. C. C. 141 : 8 Mass. 430 ; i Blnckf. 36 : 2 Me. 293 : 14 Id 344 ; 7 Ga. 16-?: 21 Miss. 395; i HilHS. C. 1 ) 328; 7 B. Mon. 162; Barb. 489. g-io Ves. Ch. 438; 2 C. & P. 553. h-4 Wheat. 225; 3 Johns. 534; 7 Id. 470; 6 Wend. 103. i- 6 Wend. 103. j-i Chitty Contr. i ; 7 T. R. 350, 351, right when not expressed is always implied. Persons may change their will at any time if it be not to the injury of another; they may, therefore, revoke or recall their offers at any time before they have been accepted, and in order to deprive them of this right the offer must have been accepted on the terms in which it was made.s Any qualification of, or depar- ture from, these terms, invalidates the offer, unless the same be agreed to by the party who made it. h When the offer has been made, the party is presumed to be willing to enter into the contract for the time limited ; and, if it be not fixed by the offer, then until it be expressly revoked or rendered nugatory by a contrary presumption.' See ACCEPTANCE. PAROL CONTRACTS are those which are made verbally or in writing not under seal for those which are under seal are such as deeds or specialties, and embrace bonds, judg- ments, recognizances, undertakings, etc., etc^ A contract which is made under seal, and afterwards modified verbally, becomes thereby wholly a parol contract.* In States where seals are abolished the principle of distinction in contracts is still the same, though no seal be required. PARTIES may act independently and sev- erally, or jointly and severally. They may act as representatives of others, as agents, factors, and brokers, servants, attorneys, trustees, executors and administrators, and guar- dians. They may act in a collective capacity, as corporations, joint-stock companies, and part- nerships. They may be new parties, by novation, as- signment, and by indorsement. They may be parties disabled in whole or in part, as infants, married women, bankrupts or insolvents, non compos mentis, drunkards, etc. In general, all persons may be parties to con- tracts ; but no person can contract with himself in a different capacity (as A., being a member of the firm of A. & Co., he cannot contract with the firm of A. & Co., because he cannot contract with himself ) as there must be an agreement of minds. 1 And no want, immaturity, or inca- pacity of mind, in the consideration of the law, disables a person from becoming a party. Such disability may be entire or partial, and must be proved. In case of death of a sole party the debt or contract survives against his heirs, executors, and administrators. In case of the death of one or more of the joint obligors or promisors the joint debt or contract survives against his heirs, executors, or administrators of the deceased obligor or promisor, as well as against the survivors. n.: 3 Johns. Cas. 60 : i Chitty PI 88. lt-2 Watts. 451 : 9 Pick 298 ; 3 Wend 71. l-i Vern. Ch. 465 ; 2 Atk. Ch. 59: 9 Ves. Ch. 234: 12 Id. 372; 13 Id. 156: Pick 298 ; 3 Wend 71. l-i Vern. Ch. 465 ; 2 . es. Ch. 234: 12 Id. 372; 13 Id. 15 Brown Ch. 400; i Pet. C.C. 373: 3 Binn 54: 7 Watts, . 373: 3 ige Ch. 23 387 ; ii S. & R. 210 ; o Paige Ch. 238, 650 : 3 Sandf 61 : 2 Johns. Ch. 252; 4 How. 503. m-2 Stark. 326; i Esp. 353 i T. R. 648 : n Ad. & E. 634 ; 7 L. J. Exch, 33- 31* CONTRACTS. When all the obligors or promisors die, the debt or contract survives against the heirs, ex- ecutors, and administrators of all the deceased joint obligors and promisors. PARTNERSHIP. See that title. PAYMENT to an agent in the ordinary course of business binds the principal, unless the latter has notified the debtor beforehand that he requires the payment to be made to himself." Payment to an attorney is as effectual as if made to the principal himself, but not so o an agent of the attorney appointed by the attorney to see the debtor ;P and where one con- tracts to do work and sues for the price, the defendant may prove that the plaintiff had a partner in the undertaking, and that he has paid that partner.i It is a general rule that payment to one partner is good, and binds the firm. 11 So payment to one of two joint creditors is good, though they are not partners in business.' Pay- ment to the creditor's wife will not be a good payment,* unless she was his agent, either ex- pressly or by course of business." One may be justified in making payments to a party who is sitting in the creditor's counting-room, and ap- parently intrusted with the transaction of the business, and authorized to receive the money, although he be not so in fact. T In general, it is only a money payment that binds the princi- pal* so that he is not affected by any claim which the debtor may have against the agent. 1 And an agent authorized to receive payment in money cannot bind his principal by receiving goods/ or a bill or note. 1 PAYMENT IN BANK BILLS. A payment in good bank bills, not objected to at the time, is a good payment ; and so is a tender of such bills ; but the creditor may object and demand specie. 5 A tender of copper cents cannot be made under the constitution of the United States." If the bills are forged the payee may treat them as a nullity, for such bills are not what they purport to be. d But such forged notes (or coin) must be returned by the receiver in a reasonable time, or he must bear the loss.* Where the bills of a bank that has failed are paid and received in ignorance of such failure, the loss falls on the party paying/ but they must be returned in a reasonable time. 8 M-II East. 36; 6 M. & S. 166; Cowp. 251 ; 2 C. & P. 49 : i Cowp. 444 ; 2 Id. 24 ; 3 C. & P. 352 ; 5 Scott. TO; 2 Camp. 343. o-i W. Bl. 8; 2 Doug. 623 ; i Wash. (Va.)io; i Call, 147; 4 Conn. 517; 8 Pet. 18 ; i Greenl. 257; i Pick. 347; 8 Dowl. 656 ; 8 Johns. 361 ; 10 Id. Ja2o ; 10 Vt. 471:3 Stew. 23 ; 5 Stew. & P. 34 ; 36 Me. 4<)6. n-2 Doug. 623 ; i Ala. 249 ; 5 Eng. (Ark.) 18 ; 3 Greenl. 373; 15 Me. 144. q-8 Wend. 542. r-6 Ves. 198; 2 Blackf. 371; Breese, 107: 6 M. & S. 156; i Wash. (Va.) 77; 4 C. & P. 108; 7 N. H. 568. *- 4 J. J. Marsh, 367. t-2 Scott N. R. 372. u-Addison, 316 ; i Freem. 178 ; 22 Me. 335. v-Moody & M. 200-238; 5 Taunt. 307; 2 Cromp. & M. 304. w-n Mod. 71. x- 10 B. C. 760. y-2 C. & P. 508. z-s M. & W. 645 ; 2 Ld. Raym. 928 ; Holt N. P. 278. a-9 Pick. 512 ; 7 Johns. 476 ; 8 Ohio, 69 ; 2 Fairf. 475 ; 2 Cromp. & J. 16, n.; Id. 15 ; 3 T. R. 551 ; 5 Yerger, 199 ; 4 Esp. 267 ; 3 Humph. 162; 6 Ala. 226. b-3 Halst. 172 : 4 N. H. 296 ; 4 Dev. & Bat. 435. c-2 Nott& M'Cord, 510. d- 10 Wheat. 333; 2 Johns. 455 ; 6 Hill, 340; 2 Hawks. 326 ; 3 Id. 568 ; 7 Leigh. 617 ; 2 Harris & Johns. 368 ; 3 Scam. 392; 5 Conn. 71 ; 6 Mass. 182 ; n Id. 137; 3 Barr. 330; 4 Gill. & J. 463. e-? Leigh. 617; n 111. iJTJ PAYMENT BY CHECK. Payment is often made by the debtor's check upon a bank. The holder is not bound by receiving it, but may treat it as a nullity if he derives no benefit from it, provided he has been guilty of no negligence which has caused an injury to the drawer ; h nor is it necessary to preserve the payee's rights that it should be presented on the day it was received. 1 And if drawn on a bank in which the drawer has no funds it need not be pre- sented at all in order to maintain an action upon it.i PAYMENT BY DELEGATION. Payment may be made by an arrangement whereby a credit is given or funds supplied by a third party to the creditor, at the instance of the debtor. PAYMENT BY LETTER. In general the debtor is discharged, although the money does not reach the creditor, if he was directed or ex- pressly authorized by the creditor so to send it, or if he can distinctly derive such authority from its being the usual course of business; but not otherwise. 11 PART PAYMENT. Payment of a part of a debt, or of liquidated damages, is no satisfac- tion of the whole debt, even where the creditor agrees to receive a part for the whole, and gives a receipt for the whole demand ;' unless it were a payment of a debt by a fair and well-under- stood compromise, carried faithfully into effect. And if a part be paid before all is due," or in any way more beneficial to the creditor than that prescribed by the contract ; here there is a new consideration for the release of the whole debt. And if a stranger pay from his own money or give his own note for a part of a debt due from another, in consideration of a discharge of the whole, such discharge is good.' If a creditor by his own act and choice compel a payment of a part of his claim by process of law, this will generally operate as an extinguish- ment of his whole claim, under the rule that he shall not divide an entire cause of action as to give himself two suits upon it.i He may often bring his action for a part, but a recovery in that action bars a suit for the remainder. As, if one has a demand for three articles un- 1 Pick. 394. f-n Vt. 576 ; Id. 576; o N. H. 365; 22 Me. 88 ; 1 1 Wend, i ; 13 Id. 101 ; 18 Barb. 545 ; 18 Q. B. 722; 14 Eng. L. & Eq. 64. -17 Mass. 33. h-i Hall, 56 ; 4 A. & E. 954 ; 2 Camp. 515 ; 8 T. R. 451 ; 6 Id. 139; 2 B. & P. 518. 1-6 Wend. 443 : 2 Taunt. 396; 2 Camp. 537; 13 Wend. 540. j-i Hall, 78. k-Peake, 67 ; n M. & W. 233 ; 3 Mass. 249 ; Ryan & Moody, 149; i Exch. 477. 1-Pmnell's Case, 5 Rep. 117; Stra. 426; 2 B. &C. 477; 5 East. 230; 3 N. H. 518; ii Vt. 60; 26 Me. 88; 10 A. & E. 121 ; 4 Gill. & Johns. -^05 ; 5 Johns. 386: 9 Id. 333; n How. Pr. R. 100 ; 27 Me. 362; 5 Cranch, ii ; 3 N. H. 5x8 j 14 Vt. 44 ; i Pike (Ark.> n ; i Camp. 558, n. ; 3 Id. 331 : 18 Q. 6.757; 16 Eng. L. & Eq. 90 ; 10 Exch. 607 ; 28 Eng. L. & Eq. 498 ; 12 C. B. 261 ; 14 Eng. L. & Eq. 243 ; 3 Dowl. L. P. C. 631 ; 15 C. B. 823 ; 29 Eng. L. & Eq. 241. m- i Rawle, 391. n-Pinnelrs Case, 5 Rep. 117; 2 Met. 283; 3 Hawks, 580. 0-15 M & W. 236; i Stra. 42; * B. & C. 477 ; Dyer, 75, a.; 2 Met. 285-6 ; 2 Litt. 40 ; 3 Barb. Ch. 621 ; 5 Day, 359 ; 5 Johns. 386; 13 Mass. 424. p-2 Met. 283; 20 Johns. 76; 14 Wend. 116; i Id. 164 ; 13 Ala. 353 ; 4 B. & C. 506 ; n East. 390. q-n S. & R. 78 ; 15 Johns. 229 ; Id. 432 ; 16 Id. 121 ; Id. 136; 8 How. Pr. R. 514 ; 2 Seld. 179 ;~ 6 Cush. 8z ; i Wend 487; 15 Johns. 433 ; 16 Id. 136. CONTRACTS. 219 Act one contract, and sues for one, he cannot afterwards bring his action for the other two. PENALTY. See DAMAGES, above. PERFORMANCE. To make this de- fence effectual the performance must have been oy him who was bound to do it; and whatso- ever is necessary to be done for the full dis- charge of this duty, although only incidental to it, must be done by him. Nor will a mere readi- ness to do discharge him from his liability, un- less he makes that manifest by tender or an equivalent act. r IMPOSSIBILITY OF PERFORMANCE. If the Crformance of a contract becomes impossible f the act of God, that is, by a cause which could not possibly be attributed to the prom- isor, and this impossibility was not among the contingencies which a prudent man should have foreseen and provided for, this would seem a sufficient defence. 8 But mere hardship or dif- ficulty of performance by the promisor will not suffice.* KIND OF PERFORMANCE. The performance must be such as is required by the true spirit and meaning of the contract, and the intention of the parties as expressed therein. A mere literally accurate performance may wholly fail to satisfy the true purpose of the contract. But if the contract expresses and defines the exact method, and that method is accurately followed, this is a sufficient performance. 11 If the con- tract be in the alternative, as to do a thing on one day or another, or in one way or another, the right of election is with the promisor, if there be nothing in the contract to control the presumption. T A. contracted to deliver " from one to three thousand bushels of potatoes," held he might deliver any quantity he chose within the limits of the contract.* If the con- tract is to do one of two things by a given day the debtor has until that day to make his elec- tion ; but if he suffer that day to pass without performing either, his contract is broken and his right of election gone. x Where A. agreed to deliver to B., by the first of May, from 700 to 1,000 barrels of meal, for which B. agreed to pay on delivery at the rate of six dollars per barrel, and A. delivered 700 barrels, and also before the day tendered to B. 300 barrels more, to make up the 1,000 barrels, which B. refused, it was held that B. was bound to receive and pay for the whole l,ooo barrels; the delivery of any quantity between 700 and 1,000 barrels being at the option of A. only, and for his benefit.* r-8 Exch. 689 ; 20 Eng. L. & Eq. 498 ; 2 M. & W. 223 ; Shep. Touch. 378 ; 2 Brod. & Bing. 163 ; 2 M. & S. 120; 2 J. B. Moore, 274; i Cromp. & M. 178. S-W. Jones, 279 ; S. C. nom Palmer, 543 ; i Gray, 282 ; i Kernan, 25: 2 Id. 99. t-6 T. R. 650; Id. 750 ; 10 East. 530; Pet. C. C. 86 : Addison, 342 : 2 Kernan, 99 ; 4 Ellis & B. 09 ; Id. 963; 30 Eng. L. & Eq. 336; Rev. in 7 Ellis & B. 763. u-i6 Me. 164; ii Vt. 554; 15 Pick. 546. V-n Johns. 59; Doug. 16. W-4Greenl. 497; 7 Johns. 465. x-i Bailey, 136. y-3 Johns. Cas. 81. z-i8 Pick. 555 ; 9 B. & C. 386 ; i Camp. 53 ; Id. 55 n.: 6 J. B. Moore, 114 ; 12 S. & R. 275 ; 15 Vt. 515 ; 3 Bing. 235 ; 5 B. &C. 378; 5 B. & P. 61. a-6 T. R. 320: n Vt. 557 ; 20 Me. 453 ; n Met. 440 ; 4 Conist. 412 ; 8 Vt. 54 : PART PERFORMANCE. A partial performance may be a defence, pro tanto, or it may sustain an action pro tanto ; but this can be only in cases where the duty to be done consists of parts which are distinct and severable in theii own nature (thus, in an entire contract for sale, or manufacture, of a large quantity of an arti- cle or articles, at an agreed price for each, the current of authorities holds that a delivery and acceptance of part, gives a right to recover for that part, deducting whatever damages the other party sustained by the non-fulfilment of the contract; 1 ) and are not bound together by expressions giving entirety to the contract. It is not enough that the duty to be done is in it- self severable, if the contract contemplates it only as a whole." TIME OF PERFORMANCE. If the contract specifies no time, the law implies it shall be performed in a reasonable time, b and will not permit this implication to be rebutted by ex- trinsic testimony going to fix a definite time, because this varies the contract.* What is a reasonable time is a question of law.* If the contract refers to " the day of date," or " the date," and expresses any date, this day and not that of the actual making is taken, but if there is in the contract no date, or an impossible date, then the day of the actual making will be understood to be meant by the day of the date. 9 The rule which makes notes which become due on Sunday without grace, payable on the Mon- day following, applies to all contracts.' No one is bound to do any work in performance of his contract on Sunday,* unless the work by its very nature, or by express agreement, is to be done on that day, and can be then done without a breach of the law. PRESENCE of parties in many contracts and judicial proceedings is necessary in order to render them valid. A party to a deed exe- cuted by himself must personally acknowledge it, when such acknowledgment is required by law to give it its full force and effect; and his actual presence in person is indispensable, un- less another person represents him as his at- torney, having authority from him for that pur- pose. A lunatic, a man asleep, h or insensible,' or if the act were done secretly so that he knew nothing of it,J would not be considered present. PRESENTMENT. See BILLS OF EXCHANGE ; BONDS AND PROMISSORY NOTES. PRICE. See title SALES. PRINCIPAL. See title AGENCY ; and OBLI- GATION, above. 6 Id. 35; Id. 383; 12 Id. 617; 13 Id. 268; 2 Pick. 267; 19 Id. 528 ; 8 B. & C 324 ; 4 Ellis & B. 71 ; 26 Eng. L. & Eq. 144. fo-8 Scott, 544; 16 Pick. 227; 2 Penn. 63; 3 Bibb. 105 ; 3 Sumner, 530 ; 20 Me. 67. C-i6 Pick. ^27 ; 3 Sumner, 530 ; 2 Kernan, 184 ; 3 M. & W. 445. l-Cro. Jac. 204 ; i 'Pick. 43 ; 5 Id. 54 ; 2 T. R. 436 ; 5 M. & S. 479 ; 2 Greenl. 24 ; i Hawks. 41 ; 14 Me. 57 ; 16 Id. 164 ; 24 Id. 131 ; 3 Sumner, 530; 15 Me. 350. e-4 B. & C. 908 ; Co. Litt. 46, d.: 2 L. Ray. f-io Gray, 306. jr-i8 Conn. 18 ; 2 Id. 69 ; 6 Johns. 326, and note (a) in zd Ed.: 20 Wend. 205 : 10 Ohio, 426 ; 7 Blackf. 479 ; Contra (. Gill & J. 268 ; 10 A. & E. 57. h-Dig. 4. 2. i. . !- Dougl. 241 ; 4 Brown Part. Cas. 71 ; 3 Russ. C^. 441 j-i P. Wms. Ch. 740. CONTRACTS. PROPOSALS or formal offers to perform some undertaking, stating the time and manner of performance, and price demanded, or one or more of these particulars, either directly or by implied or direct reference to some an- nouncement requesting such an offer,* are not to be considered as subject to different rules from any other offer. 1 Until it has been ac- cepted, a proposal may be .withdrawn by the party who makes it. To be binding, the ac- ceptance must be in the same terms without any variation whatever." 1 PUNCTUATION is not regarded in the construction or interpretation of a written instrument, or in written law. RATIFICATION. See title AGENCY; and AF- FIRMANCE; CONFIRMATION, above. READING. When a person signs or exe- cutes an instrument of writing it is presumed that it has been read to him ; but this presump- tion may be rebutted. See BLIND; ILLITER- ATE; PRESENCE; above. REFERENCE. See AGENCY; ARBITRATORS. RESCISSION. Whatever party has the right to rescind must do it within the time specified, if there be such a time, or otherwise within a reasonable time. n What is a reason- able time is a question of law for the court only.* Generally, as a contract can be made only by the consent of all the contracting par- ties, it can be rescinded only by the consent of all.P But this consent need not be expressed as an agreement. 1 Generally, where one fails to perform his part of the contract, or disables himself from performing it, r the other party may treat the contract as rescinded. 8 No con- tract can be rescinded by one of the parties, unless both can be restored to the condition in which they were before the contract was made.* If, therefore, one of the parties has derived an advantage from a partial performance, he can- not hold this and consider the contract as re- scinded because of the non-performance cf the residue," but must do all that the contract obliges him to do, and seek his remedy in damages. RELEASES may either give up, discharge, or abandon a right of action, or convey a man's interest or right to another who has possession of it or some estate in the same. T A release is a good defence, whether it be made by the creditor himself, or result from the operation of law." No special form of words is necessary, if it declare with entire distinct- ness the purpose of the creditor to discharge the debt and debtor. It may expressly extend to only a part of a claim or debt,* or to the h-Se 35 Ala. (N. S.) 33. 1-Pierce Am. Rly. L. 364. m-i La. 190 ; 4 Id. 80. n-2 Camp. 530 ; i Starkie, 107 ; i J. B. Moore, 106. 0-14 Me. 57 ; 22 Pick. 546 ; 6 Scott. 187. p-4 Man. & G. 898. q-The rescission by one party may be as strongly expressed by acts as by words, i Pick. 57; 4 Id. 114; 5 Greenl. 277; 7 Ring. 266; i T. R. 133. r-2 C. B. 905 ; 2 Penn. 454 ; Id. 445 ; 8 Foster, 561 ; 9 La. An. 31 ; 4 Wend. 285. s-6 Taunt. 154 t-5 East. 249 : 2 Young & J. 278 ; 4 Man. & G. 903 ; 2 Bitch. 783; 14 Me. 364; i Met. 547: 4 Blackf. 515; 2 Watts, 433; loOhio, 742 : 27 Miss. 498 : 3 Vt. 442 ; 4 N. H. 298 : i Id. 17; 22 Pick. 283; 32 Vt. i. n-i M. & W. 231. v- Sh. Touch. 320; Litt. 444; Bac. Abr.; Vin. Abr.; Roll. Abr.; Nelson Abr. w-ia M. & W. 441 ; Co. Litt. 291, party released, with express reservation of rights against other parties ; in which case it will be construed only as a covenant not to sue.' But if a plaintiff is met by a general release under his seal to the defendant, he can- not set up an exception by parol ;' and where a release is general it cannot be limited or quali- fied by extrinsic evidence, although a receipt may be. A release may be by operation of law, as, if parties intermarry. 1 " REQUEST. In some cases the necessity of a request is implied from the nature of the transaction; as where a horse is sold to A., to be paid for on delivery, A. must show a re- quest, or impossibility on the part of the ven- dor to comply if requested," 1 previous to bring- ing an action ; so, on a promise to marry. 9 If the contract, in terms, provides for a request, it must be made. f It should be in writing and state distinctly what is required to be done.* RESTRAINT OF TRADE. An agree- ment by one who exercises a certain trade, business, or occupation, to abandon the same, and thereafter exercise it no more, whether under seal or not, or whether with or without consideration, is void. The unreasonableness of " contracts in restraint of trade," and busi- ness, are: i. Such contracts injure the parlies making them, by diminishing their means for obtaining livelihoods and a competency for their families. They tempt improvident per- sons, for the sake of present gain, to deprive themselves of the power to make future acqui- sitions. 2. They tend to deprive the public of the services of men in the employments and capacities in which they may be most useful to the community as well as to themselves. 3. They discourage industry and enterprise, and diminish the products of ingenuity and skill. 4. They prevent competition and enhance prices. 5. They expose the public to all the evils of monopoly. Against evils like these, wise laws protect individuals and the public, by declaring all such contracts void. h But contracts which are limited as to time, or place, or persons, for a good consideration, are valid, and may be enforced. 1 These rules extend to all branches of trade and all kinds of busi- ness .J SAID means " before-mentioned." In con- tracts and pleadings it is usual and proper, when it is desired to speak of a person or thing before-mentioned, to designate them by the term " said," or " aforesaid," or by some similar term ; otherwise the latter description may be ill for want of certainty. k a. X-2 Roll Abr. 413, tit. ; Release (H.) pi. I. y-C. B. 1858; 21 Law Ren. 376. z-8 A. & E. 854. -i B. & C. 704; i McLean. 194. b-i Ld. Raym. 515; 2 P. Wms. 242 ; Hob. 216; 5 T. R. 384. c-s T. R. 409: i East. 209. d-io East. 359 ; 5 B. & Aid. 712. e-2 Dowl. & R. 55. f-i Johns. Cas. 327. er-i Chitty Pr. 497. h- 57: 21 We iq Pick. 51 ; 7 Cowen. 307; Hoff. Ch. 479: 7 Blackf. t jnd 157: Id. 166; > 44: ii Ohio St. 349. 14 Mass. 223; 9 Id. 522 : 4 Bibb. 486; i Pick. 413: 3 Id. : 7 Cow. 397; 6 Pick 206: 19 Id. 51 ; Id. s3- The whole subject examined by Branson 7. in 21 Wend. 157: T 344: ii Ohio St. lt-2 Lev. 207 ; Com. Dig. PI. Id. 166: i Hoff. Ch. 470: 7 Blackf. 344: n Ohio 349- J-'9 Pick. 51. Goulcf Pi. C. 3, ? 63. CONTRACTS. SET-OFF. Set-off is a mode of defence by which the defendant acknowledges the jus- tice of the plaintiff's demand, but sets up a demand of his own against the plaintiff, to counterbalance it in whole or in part. m SETTLEMENTS are agreements by vrhich two or more persons who have dealings together so far arrange their accounts as to ascertain a balance due from one to the other. They are also payments in full. SHIPPING ARTICLES are agreements in writing or print between the master and sea- men or mariners on board of his vessel (except such as shall be apprenticed or servant to him- self or owners), declaring the voyage or voy- ages, term or terms of time for which such sea- men or mariners shall be shipped. It is also required that at the foot of every such contract there shall be a memorandum, in writing, of the day and the hour on which each seaman or mariner, who shall so ship and subscribe, shall render himself on board to begin the voyage agreed upon. For want of shipping articles the seaman is entitled to the highest wages which have been given at the port or place where such seaman or mariner shall have been shipped for a similar voyage, within three months next before the time of such shipping, on his performing the service, or during the time he shall continue to do duty on board such vessel without being bound by the regulations, or subject to the penalties or forfeitures con- tained in said act of Congress; and the mas- ter is further liable to a penalty." Shipping articles ought not to contain any clause which derogates from the general rights and privileges of seamen ; and if they do, the clause will be declared void. A seaman who signs shipping articles is bound to perform the voyage, and he has no right to elect to pay damages for non-performance of the contracts SIGNATURE is the act of putting one's name at the end of an instrument to attest its validity. It is the name thus written. It is not necessary that a party should write his name him- self to constitute a signature ; his mark is suffi- cient, though he is able to write.i A signature may be made by another party at the request, and in the presence of the contracting party. A signature may be made by a party, another person guiding his hand with his consent.' SILENCE cannot be considered as a con- sent to a contract, except in cases where the silent person is bound in good faith to explain himself; in which case silence gives consent." But no assent will be inferred from a man's silence unless he knows his rights, and knows what he is doing, nor unless his silence is voluntary. m-Barbour on Set-off, p. 17 ; see PRACTICE ; SET- OFF AND COUNTER CLAIM. ll-Act Congress, July 20, 790. 0-2 Sumn. C. C. 443; i Mas. C. C. 541. p-2 Va. Cas. 276. q-8 A. & E. 94 : 3 Nev. & P. 228 ; 3 Curt. C. C. 752 ; 5 Johns. 144. r-4 Wash. C. C. 262, 269. - Foull. i. 3, t. 3, n. 32 note; 14 S. & R. 393; 2 Belt. ipp. Ves. Ch. 442 ; i Dane Abr. C. i, Art] 4, ? 3 ; 8 -. R. 483: 6 Penn. St. 336; i Greenl. Ev. 3 201 : 2 Bouv. Inst. n. 1313 t-i Chitty Contr. i ; i Chitty PI 8*. u-a S. &R. 502; Willes, 189; iP. Wros. Ch 6 Touli: Su T SIMPLE CONTRACTS are those the evidence of which is merely oral or in writing not under seal nor of record.* See introduction to the subject " CONTRACTS," above. SPECIALTIES are writings sealed and delivered containing some agreement. 11 See in- troduction to the subject "CONTRACTS," above. SPECIFICATIONS are the particulars and details of the cpntract at large. SPELLING though bad will not avoid a contract when it appears with certainty what is meant. For example, where a man agreed to pay threty pounds he was held to pay thirty pounds; and seutene was holden to be seven- teen* and undirtood to be understood.'' STAKEHOLDERS must deli verlhe thing holden by them to the person entitled to it, on demand. It is frequently questionable who is entitled to it. In case of an unlawful wager, although he may be justified for delivering the thing to the winner, by the express or implied consent of the loser," yet if before the event has happened he has been required by either party to give up the thing deposited with him by such party, he is bound so to deliver it ;' or if, after the event has happened, the losing party gives notice to the stakeholder not to pay the winner, a payment made to him afterwards will be made to him in his own wrong, and the party who deposited the money or thing may recover it from the stakeholder.' STRANGER. See CONSIDERATION, above. STRATAGEM. See CONCEALMENT; FRAUD; MISREPRESENTATION, above. STATUTE. All contracts made in viola- tion of a valid statute are absolutely void and of no effect. SUB-CONTRACTS are those made bj persons who have contracted for the perform- ance of labor or services with a third party for the whole or part performance of that labor or service.* See AGENCY; "Sub-Agents," above. SUIT. It is a good cause of abatement of an action upon contract that another is then pending for the same cause and between the same parties. b But the prior action must be between the same parties; and the plaintiff must sue in the same capacity." 1 For no man can use the machinery of the law merely to vex and distress another. SUNDAY. Labor of whatever kind, other than the household offices of daily necessity, or other works of charity and necessity, on the first day of the week, commonly called Sun- day," is, in general, under penalty, prohibited, but all persons do not come under prohibi- tion.' If a contract is commenced on Sunday, but not completed until a subsequent day, or if 130. T-Cro. Jac. 607; 10 Co. 133, a.; 2 Rolle Abr. 147. Id. 492- z-i6 S. & R. 147; 7 T. R. 536; 8 Id. 575! 4 Taunt. 474; 2 Marsh, 542. a-9 M. & W. 710; 3 Gray, 362; 17 Wend. 550; 22 Id. 395 ; i E. D. Smith, 716; a Id. 558. b-4 Blackf. 56; 4 Dana, 62; 7 S. & Marsh, 333. c-2 Dev. 244; 15 M. & W. 494; i Camp. 60; * Sumn. 586 ; 2 Bailey. 362 ; Id. 412; 17 Vt. 138. d-i Penn. St. 434. 6-4 Ohio St. 566; 3 Id. 400, 391. f- 222 CONTRACTS. it merely grew out of a transaction which took place on Sunday, it is not for this reason void.* Thus, if a note is signed on Sunday, its validity is not impaired if it be not delivered on that day. h But, a contract made in violation of the express provisions of the Lord's day Acts, is void, like any other illegal and prohibited con- tract. 1 SURETYSHIP. See title PAYMENT. SURPRISE. See DELIBERATION, above. TENDER. If the tender be of money, it can be a defence only when made before the action was broughU A tender may be made to a quantum meruit* A tender does not bar the debt as a payment would, for in general he is bound to pay the sum which he tenders whenever he is required to do so. 1 But it puts a stop to accruing damages or interest for delay in payment, and gives the defendant costs. It need not be made by the defendant personally ; if made by a third person, at his request, it is sufficient ; n and if made by a stranger without his knowledge or request, a subsequent assent of the debtor will operate as a ratification of the agency and make the tender good. Any per- son may make a valid tender for an idiot.P If an agent, furnished with money to make a ten- der, at his own risk tenders more, it is good.i So, a tender need not be made to a creditor personally ; but it must be made to an agent actually authorized to receive the money. 1 " If the money be due to several jointly, it may be tendered to either, but must be pleaded as made to all.* The whole sum due must be tendered,* as the creditor is not bound to receive a part of his debt. If the tender be for the whole debt, it is valid." If the obligation be in the alternative, one thing or another, as the cred- itor may choose, the tender should be of both, that he may make his choice. T To make a ten- der of money valid the money must be actually produced and proffered,"" unless the creditor expressly or impliedly waives this production.* The debtor is not bound to count out the money, if he has it and offers it.' No condition must be annexed to the tender,* which the creditor can have any good reason whatever for object- It -3 Foster, 229 ; 19 Vt. 358; 24^.187; n Ala. 885: 3 B. & C. 282 ; 4 Bing. 84 ; 2 Ohio St. 387. 11-35 Me. 143 ; 18 Vt. 379 ; 2 Penn. St. 448 ; 9 N. H. 500 ; 7 Gray, 543. 1-6 Vt. 219; 12 Met. 24; 4 Cush. 322. j-Bac. Abr. Tender (D I 5 Pick. 106 ; 8 East. 168 ; 3 Pick. 414 ; 5 Id. 187. k-Stra. 576; B. R. 10 W. 3 ; 2 Salk. 622. 1-3 Taunt. 95 ; 6 Pick. 340; 2 B & P. 550; 5 Bing. 31 ; 5 Pick. 291 : 4 B. & Ad. 132 ; 2 B. 377 ; 5 M. & W. 94 ; > Id. 9 ; i Man & G. 873; 12 M.& W. 743 ; 5 Jur. 317. m-5 C. B. 365 ; 3 Bing. 290 ; 9 Cowen, 641 ; 3 Johns. Cas. 243 ; 17 Mass. 389 ; 12 Johns. 274 ; 10 S. & R. 14 ; 2 Cush. 475 ; 5 Pick. 106. n-Cro. Eliz. 48 ; i Rol. Abr. 421, K. pi. 2 ; 2 Fairf. 188. 0-2 C. & P. 78; 2 Fairf. 188 ; 2 M. & S. 86. p-Co. Litt. 206, b ; i Rawle, 408. q-2M.&S.86. r-i M. &W. 313; i Camp. 477 ; ; Fairf. 475 : i Gray, 600; 5 Taunt. 307 ; i Car. & K. 36; 48. & C. 28; 6 Dowl. & R. 132: 3C. & P. 453; Moody & M. 200. s-3T. R. 683; i6S.&R. 371. t- 5 C. 8.365; 2 Conn. 659. n-2 Stra. 916; 5 Rep. 115; 48. & Ad. 546: 3 T. R. 683; Peake, 88; 5 D. & R. 289 ; 5 M. & W. 306 ; 3 Camp. 70 ; 6 Taunt. 336 ; i C. 6 P- 365 I 5 D. & R. 289 ; 3 Bing. 304 ; 22 Vt. 440. V- Fordlev's Case, i Leon, 68. w-tfoy, 74 ; Com. Dig. pi. (2 W.) 28 ; 10 East. loi ; 4 Esp. 68 ; 7 J. B. Moore, 59 ; 3 C. fc P. 342 ; i Scott. 70 ; 5 Esp. 48 ; 8 Greene, ing to ; as, for instance, that he should give a receipt in full of all demands.* The tender should be in money made lawful by the State in which it is offered. Generally, a tender is valid, and effectual if made at any time after the debt is due ; and a demand made after the tender if for more than the sum tendered, will not avoid the tender. Certainly not, if the demand is for more than the real debt, although the excess was for another debt truly due. 4 ( TENDER OF CHATTELS. The thing ten-f/ dered may not be money, but some specific arA tide. If one is bound to deliver chattels at a particular time and place, it may not be enough if he has them there; they may be mingled with others of a like kind which he is not to deliver. Or they may need some act of sepa- ration, or identification, or completion, before they could become the property of the other party.' Generally, if no time or place be spe- cified, the articles are to be delivered where they are at the time of the contract/ unless col- lateral circumstances designate a different place.* If the time be fixed, h but not the place, then it will be presumed that the deliverer was to bring the articles to the receiver at that time, and for thai purpose he must go with the chattels to the resi- dence of the receiver, 1 unless something in their very nature or use, or some other circumstances of equivalent force, distinctly implies that they are to be left at some other placed It may happen, from the cumbrousness of the chattels or other circumstances, that it is reasonable and just for the deliverer to ascertain from the re- ceiver, long enough beforehand, where they shall be delivered ; and then he would be held to this as a legal obligation. 11 So, too, in such a case, the receiver would have a right to desig- nate to the deliverer, a reasonable time before- hand, a place of delivery reasonably convenient to both parties, and the deliverer would be bound by such direction. 1 If no place be indi- cated, and the deliverer is not in fault in this, he may deliver the chattels to the receiver, in person, at any place which is reasonably conve- nient. m And if the receiver refuses or neglecU, to appoint any place, or purposely avoids re- 107 ; 5 N. H. 440 : 7 Id. 535 ; 15 Wend. 637 ; 6 Md. 37. x-2 M. &S. 86; 6 Pick. 356; 2 C. & P. 77. y-8 Ohio. 169, 172 ; Walker CMiss.) 369 ; 6 Pick. 356. Z-B_-vans vi. Rees, 5 M. & W. 306. a-Glasscott vs. Day, 5 Esp. 48 ; 12 Mass. 450; 3 Pick. 48; 20 Wend. 47; 8 C. & P. 259 ; 2 Id. 50; Id. 51, n.; 3oConn.344. b-Wade's Case, 5 Rep. 114; 13 Mass. 235; 4 N. H. 296. c-ii Vt. 440. l-s C. B. 378; ii M. & W. 356. e-7 Greenl. 91 : 2 Fairf. 398; 24 Me. 316: 32 Id. 31 ; 5 Johns. 119; i D. Chip. 399 ; Walker, 401 ; 4 Cowen, 452 ; 7 Conn. no; 4 Mass. 474 ; 4 N. H. 40; 14 Id. 4^9; 13 Vt. 2587 14 Id. 457; 3 Wash. C. C. 140. f-7 Barb. 472 ; 3 WatU & S. 295 ; i Stew. 524 ; 6 Ala. 326 ; Id. 24 ; Hardin. 80, n.; i Wash. (Va.1 326; 5 Cowen, 518; 20 Wend. 196; 2 Denio, 145. u-Bronson vs. Gleason, 7 Barb. 472. h- If the time fall on Sunday, tender on Monday is good, 10 Ohio, 426 ; 3 Cush. 137 ; 18 Conn. 18 ; 2 Id. 69 ; 20 Wend. 205 ; 5 Yerg. 410 ; i Greenl 120 ; 3 Wash. C. C. 140; iq Vt. 587; 2 Scott, N. R. 485. 1-3 Watts & S. j 295; 2 Penn. 63; j Greenl. 120. J-n Vt. 612; i Leon, I 69; 8 Vt. 340 : '10 Id. 274; 303^,327; i Kern. 80; 2 Seld. 585. It-Co. Litt. 210, b.'; 3 Watts & Serg. 295 ; i 20 Me. 325; 5 Greenl. 192; 16 Me. 49; 3 Dev. 78; 2 ! Penn. 63. 1-2O Me. 325; i Greenl. 120. Hi-Howard ' vs. Miner, 20 Me. 325. CONTRACTS. 123 giving notice of a place, the deliverer may appoint any place, with a reasonable regard to the convenience of the other party, and there deliver the articles. 11 If the promise be to pay money at a certain time, or deliver certain chattels, it is a promise in the alternative ; and the alternative belongs to the promisor ; he may do either the one or the other, at his election ; nor need he make his election until the time when the promise is to be performed; but after that day has passed without election on his part, the promisee has an absolute right to the money, and may bring his action for it.P A contract to deliver a cer- tain quantity of merchandise at a certain time means, of course, to deliver the whole then.' If by the terms of the contract certain spe- cific articles are to be delivered at a certain time and place in payment of an existing debt, this contract is fully discharged and the debt is paid, by a complete and legal tender of the ar- ticles at the time and place, although the prom- isee was not there to receive them ; and no action can thereafter be maintained on the con- tract. 1 " But the property in the goods has passed to the creditor, and he may retain them as his own. If there be a contract to deliver wares or goods which are merchandise, and belong to a certain trade, this means wares or goods of the kind, fashion, and quality in common use in that trade, and not such as are antiquated and unsalable.* TERM is that space of time allowed for the performance of a contract, as if a builder en- gage to construct a house for you, you must allow a reasonable time for fulfilling his engage- ment. TRANSPORTATION. See DELIVERY; PER- FORMANCE, above. TRIPARTITE consists of three parts. See CONVEYANCING. UNCONSCIONABLE bargains are those contracts which no man in his senses not under delusion would make, on the one hand, and which, on the other, no fair and honest man Would accept. T UNCERTAINTY. See CERTAINTY, above. UNINTELLIGIBLE CONTRACTS have no effect arhatever. See CONSTRUCTION ; INTERPRETA- TION, above. UNLAWFUL CONTRACTS are of two kinds : those which are void and those which are not. When the law expressly pro- n-Co. Litt. 210; 25 Wend. 405; 2 Hill, 351 ; 20 Me. 325. 0-7 Ala. 775; 4 Y-rger, 177; 5 Humph. 423 ; 14 iVt. 457. p-3 Day, 327 ; 2 Penn. 63, 301 ; 2 Greene, >; 17 Vt. 105; i Greenl. 120. q-2 Penn. , 457. p-3 Day, 327 ; 2 Penn. 63, 301 ; 2 Greene, (205; 3 Scam. 389; 17X1.105; i Greenl. 120. q-2 Penn. 63; 9 B. & C. 386; 15 Vt. 515; 18 Pick. 555. r-2 Blackf. 87; 8 Johns. 474; 24 Vt. 536: 4 Barr, 669; 2 Greene, 254 ; i Stew. 272; 5 Watts, 262; 9 Yerg. 414; Peck. 212; 10 Yerger, 245; 2 Penn. 63; 7 Conn, no; Brayton, 223; 5 Johns. 119; 4 Cow. 552; i Root, 443, 55.- 8-See preceding note, i N. H. 295; Co. Litt. 207; 9 Co. 79 : i Root, 55, 443 ; 8 Johns. 474 ; 3 Johns. Cas. '43. t-Dennet vs. Short ; 7 Greenl. 150. n-iWis. 314. V-4 Bouv. Inst. n. 3838. w-3 Binn. 533. x-12 S. & R. 237; Chitty Contr. 230; 23 Am. Jur. 1-23; i Mod. 35; 8 East. 236,237; 3 Taunt. 244; Hob. 14. y-Bac. Abr. Inf. (i. 3.); Com. Dig. En/.; Fonbl. Eq. B. i,C. hibits the transaction in respect of which the agreement is entered into, and declares it to be void, it is absolutely so." But when it is merely prohibited without being made void, although unlawful it is not void.* See CONDITIONS; CONSIDERATION ; CONSTRUCTION, above. USURY. See INTEREST ; PAYMENT. Vis MAJOR. See title ACCIDENT. VOID CONTRACTS are those which have no force or effect whatever. Wagers upon the result of an election have always been considered as void, as being con-' trary to sound policy, and tending to impair the purity of elections. 1 All wagers are considered illegal, and contrary to good policy.* Wagers as to the mode of playing, or the result of any illegal game, as boxing, wrestling, cockfighting, etc., are void at common law. b See STAKE- HOLDER, above. VOIDABLE CONTRACTS are those which have some force or effect, but which, in consequence of some inherent quality, may be legally annulled or avoided ; for example, a contract made by an infant with an adult may be avoided or confirmed by the infant on his coming of age. Voidable contracts are, gener- ally, of binding force until avoided by the party having the right to annul them.? WAIVER. If after knowledge of a sup- posed fraud, surprise, or mistake, a party per- forms a contract in part, he will be considered as having waived all objection." One may renounce or waive that which is in his favor, provided it be of no detriment to, or prejudice another's rights. WARRANTY. See INSURANCE; SA.LES. WORDS are to be understood in a proper or figurative sense, and they are used both ways in law. Every one is required to use words in the sense they are generally under- stood ; for as speech has been given to man to be a sign of his thoughts for the purpose of communicating them to others, he is bound, in treating with them, to use such words or signs in the sense sanctioned by usage that is in the sense in which they themselves understand them or else he deceives them. d WORK AND LABOR. See BAILMENTS. CONTRACT FORMS. Articles of agreement consist of a written memor- andum of the terms of an agreement. They may relate either to real or personal estate, or both ; and if in proper form will create an estate or trust, such that a specific performance may be enforced. 2, j! 4, n. b; 3 Burr. 1794 ; i Nels. Ch. 55 ; i Atk. Ch. 354 ; Str. 937 : Perkins, \ 12. z-i T. R. 56 ; 16 S. & R. 147; 2 Browne (Pa.) 182 ; 4 Johns. 426; 8 Id. 454; n Id. 23 ; 12 Id. i ; 9 Cowen, 169 ; i R. & I. i ; 12 Johns. 376; 5 Wend. 250; 7 Watts, 295; Id. 343; 4 Harris & McH. 284; i Bailey, 486; i Greene, 3-3; i La. An. 176 ; 18 Vt. 9 : 9 Dana, 31 ; 2 Gratt, 257 ; 10 Ala. 316 ; 15 Conn. 28 ; 2 Humph. 131 ; i Hairing. (Del.) 517; 3 Id. 420; 8 Mo. 8; 24 Ohio St. 328. a-2 Vt. 144; a Mass, i; 3 Pick. 446; 12 Met. 399; 6 N. H. 104; i Strobh. 8a; 6 Whart. 176; 15 Me. 233: 3 Cal. 328. b- 2 H. Bl. 43; i C. & P. 613 ; 3 Camp. 140; i Bing. I ; i Hall, 300; i Nott & M'Cord, 180; 4 M'Cord, 211 ; 3 Denio, 107, 340; 13 Penn. St. 601 : i Cowp. 729; 4 Camp. 152 ; i Rawle, 42 ; i B. & Aid. 683. c-i Brown Parl. Cas. 289. d-Heccen. Prael. Puffend. Lib. i, } 197 ; Wolff Inst. Jur. Nat. J 798. 224 CONTRACTS. The instrument should contain : z. The date, which should be truly stated, a. The names of the parties, stated clearly and explicitly, with their additions, for the purposes of dis- tinction, as well as a designation as panics of the first, second, etc., part. 3. The subject-matter of the contract, including the time, place, and more important details of the man- ner of performance. 4. The covenants to be performed by each party. 5. Should be signed by the parties, or their agents. When signed by an agent, the proper form is, A. B., by his agent (or attorney) C. D. (or as in the form below).* To render an agreement complete, six things must concur. There must be : i. A person to contract. 2. A person able to be contracted with. 3. A thing to be contracted for. 4. A lawful consideration. 5. Clear mid explicit words to express the agreement; and, 6. The assent of the contracting parties. Contract Introductions. We agree : That, etc. ; or, We hereby agree : That, etc. ; or, It is hereby agreed : That, etc. ; or, This agreement witnesseth : That, etc. ; or, -, be- Know all men by these presents: That, etc. ; or, This agreement, made this day of - tween A. B. and C. D., witnesseth: or, A. B., of county, farmer, and C. D., of county, trader, have this day of , agreed together as follows : or, This agreement (or contract) for building, etc. (or merchandise, or work, etc.) entered into this day of , bv and between A. B., of , of the first part, -md C. D., of , of the second part, witnesseth: or, Articles of agreement made and concluded (or had, made, concluded, and agreed upon) this day of , between A. B.,of the city of , merchant, andC. D.,of the city of .manufacturer; or, Know all men by these presents : That this agreement (or these articles of agreement, or thi^con- tract, or indenture) had, made, entered into, con- cluded, and agreed upon, this day of , A. D. , witnesseth : or, To all to whom these presents may come greet- ing (or To all whom it may concern) : Know ye that this agreement, etc., between the , a corpora- tion, existing under the laws of the State of , of the first part, and C. D., E. F. and G. H.,a company, doing business under the firm-name and style of The C. D. Manufacturing Com- pany of , of the second part, witnesseth: Contract Conclusions. Signed (and sealed).' or. Signed, sealed and acknowledged.* or, Witness our hands (and seals), or, Given under our hands (and seals), or, In witness whereof, we hereunto set our hands, etc. ; or, e-Plowd. i6i : Co. Litt. 35, h. f-Inmany of the States private seals are abolished, if -Mod. h-Bac. Abr. Leases, 1,10; 5 Pet. 319, 359 ; 9 M. & W. 79. 1-5 Wheat. 326, 337 : ii Mass. 197 ; 6 Cush. 54 ; 7 Id. 217:2 East. 154 ; 3 Blackf. 55 ; 6 B. Mon. 612 ; 12 Ired. L. 95 ; i Busb. L. 422; 8 Texas, 98; 12 Id. 75 : 21 Conn. 627; 33 Me. 106 : 3 Fla. 262 ; 9 Barb. 528 ; 4 Comst. 208 ; 32 E. L. & E. 127; i DUCT, 89. J-ia Q. B. 310; 8 M. & W. 34; In witness whereof, the parties to these pre*. ents have hereunto set their hands, etc. ; or, In witness whereof, we have hereunto set our hands (and affixed our seals) (at ) this day of . or, In witness whereof, we have hereunto set our hands (or subscribed our names) the day and year first (or last) above written, or, In witness whereof, A. B., the party of the first part, and C. D., the party of the second part, in their own proper persons, have hereunto respect- ively and severally set their hands and seals, thi day of (or the day and year first, or last) above written. Contract Testatum or Witness Clauses. Test; or, Attest; or, In witness ; or, Witnesses; or, In presence of; or, Executed (and delivered) in presence of; or, Signed and interchanged in presence of; or, Signed, sealed, and delivered in presence of; or, Signed, sealed, and acknowledged in presence of: See title WILLS, post. Contract Oeneral Form. By Agent or Attorney in Fact. If A. signs "A., for B.," this is the signature of A., and he is the contracting party, although he makes the contract at the instance and for the benefit of B. But if he signs " B., by A.," then it is the contract of B., made by him through his instrument A. In the first case, A. is principal ; in the second, B. is the principal and A. his agent. The name of the principal must appear as such in the signature of a deed ;* and in agreements, the words must be sufficient to bear that construction of the signature.' Parol evidence may always be admitted to charge an unnamed principal, but not to discharge an actual signer j This agreement, made this of , A. D. , by and between A. B., of county, in the State of , of the first pait, by C. D., his attorney in fact, and E. F., of county, in the State of , of the second part, by G. //., his attorney in fact, witnesseth, That said party of the first part, etc. (here fol- low as in other agreements, below). In witness whereof, the parties have hereunto set their hands, the day and year first above written. A. B., By E. F., his attorney in fact. C. D., By G. H., his attorney in fact. Contract General Form. With provisions fixing damages in case of breach. ASCERTAINED, FIXED, or LIQUIDATED DAMAGES ar damages whose amount has been determined by antici- patory agreement between the parties to an agreement. A stipulation for liquidated damages will be sustained as liquidated damages in the following cases : First, Where the agreement is of such a nature that the damages are uncertain, and are not capable of being ascertained by any known rule. k ii A. & E. 594; Q M. & W. 79; ii Mass. 97, 27; 16 Pick. 350; 9 1^. H. 263 ; 7 Wend. 68: 10 Id. 87; fl Whart. :. 79 ; 10 B. Mon. 347 : Paine C. C. 252 ; 8 Met. ?4; i Cal. 48: ; 10 B. & C. 671 ; 2 Cranch. 419; - Cush. 37 T ; 5 Sanf. 101. k-2 T. R. 32 ; i Ale. & N. Ir. 389 : 2 Burr. 2225 ; 10 Ves. Ch. 429 ; 3 M. & W. 535 ; j C. & P. 240; 8 Mass. 223 ; 7 Cow. 307 ; 4 Wend. 468: 5 Sandf. 192; 12 Barb. 137, 366; 18 id. 336: 14 Ark. 315; a Ohio St. 519. CONTRACTS. 225 Second, Where, from the tenor of the agreement, or the nature of the case, it appears that the parties have ascertained the amount of damages by fair calculation and adjustment. 1 This agreement, made this day of , A. D. , by and between A. B., of the town of , in the county of (merchant), and C. D., of the town of , in the county of , (manu- facturer), witnesseth : That said party of the second part shall (here insert thr subject-matter or object of the agreement). That said party of the first part shall pay unto said party of the second part, for the same, the urn of dollars, as follows: dollars, on the day of , A. D. , and dollars, on the day of , A. D. , with the inter- est on the amount due, payable at the time of each payment. And for the performance of this agreement, the said parties bind themselves, each to the other, in the sum of dollars, as liquidated damages, to be paid by the failing party. In witness whereof, the said parties have here- unto set their hands, the day and year first above written. (Signed) A. B. [Witnesses.] C. D. Contract General Form. With Liquidated Damages, etc. This agreement, made this day of , A. D. , by and between A. B. (of etc.) of the first part, and C. D. (of etc.) of the second part, wit- nesseth : That said party of the first part, for the consid- eration hereinafter mentioned, covenants and agrees with said party of the second part, to (here stiite the agreement). In consideration of which, said party of the second part covenants and agrees with said party of the first part to (here state agreement). And for the true and faithful performance of each and all the covenants and agreements above mentioned, said parties bind themselves, each to the other, in the sum of dollars, as liquidated damages, to be paid by the failing party. In witness whereof, the parties to these pres- ents have hereunto set their hands, the day and year first above written. A. B. C. D. Contract Arbitration. See title ARBITRATORS, ante. We, the undersigned, A. B., of , and C. D., of , agree: To submit a controversy now existing between us, in relation to an exchange of horses, made between us at , on the day of , to A. R. v B. I., and T. R., of , or any two of them. That the award to be made by said arbitrators, or any two of them, shall, in all things, by us and each of us, be well and faithfully kept and ob- served. That said award shall be in writing, signed by each of said arbitrators, or any two of them, and ready to be delivered to said parties in difference, or either of them , on the day of . Witness our hands (and seals) this day of [Witnesses.] (Signed) A.B. C. D. Contract Assignment. Of Lease. See title ASSIGNMENT, ante. See CONTRACT SALE AND ASSIGNMENT, post. This agreement witnesseth : That C. D., of , for a consideration of dollars, shall, on or before the day of , at (his own expense, or the expense of E. F.), assign, (convey, grant, and transfer) unto E. F., of , all his (demand estate), interest, right, and title in and to the following described premises, to wit : 1 copying the description from his lease) (demised and) leased unt him by A. B. , for a term of years. To have and to hold the same unto the said E. F., his heirs and assigns, during the residue of said term of years, by virtue of the said lease, 1-2 Story Eq. Jur. g 1318 ; 2 Greenl. Ev. 259 ; i Bing. %w; 7 Conn. 291; n N. H. 234; 6 Blackf. 206; 13 subject to the rents, covenants, and agreements therein specified. In witness whereof, etc. (Signatures.) Con tract A uctioneer'a. Auctioneer's Agreement. This agreement, made this day of , be- tween A. B., purchaser, and E. F., auctioneer, witnesseth : That A. B. has this day become the purchaser at public auction of the following described prop- erty, situated in , to wit (describing the prem- ises). That said A. B. has this day paid unto said E. F. dollars of the purchase money therefor. That said A. B. agrees to pay the remaining sum of dollars, purchase money therefor (on the day of , or upon the execution of a good and sufficient warranty deed, etc.) That said E. F. , in consideration thereof, hereby covenants and agrees that the vendor, C. D., shall execute and deliver said A. B. a good and sufficient warranty deed (with full covenants), for the premises above described, upon the payment of said remaining sum of dollars. In witness whereof, said parties have hereunto set their hands, etc. A. B. [Witness.] E. F. Contract Auctioneer's. Another Form. Whereas A. B. has this day of , become purchaser at public sale of (describe the land ) and paid unto me dollars of the purchase montiy therefor, I therefore hereby agree that the ven- dor, C. D., shall, in all respects, fulfil the conci- tions (hereunto annexed) of this sale, upon payment of dollars, the residue of said purchaie money. (Signed) A. B. [ Witness.] E. F. Contract Auctioneer's. By Purchaser at Auction. Whereas I have, this day of , become purchaser at auction sale of (describe the land) and paid unto E. F. dollars of the purchase money therefor, I therefore hereby agree to pay the sum of dollars to the vendor, C. D., c.a (or before) the day of , upon the perform- ance of the conditions (hereunto annexed) of said sale. (Signed) A. B. [Witnesses.] Contract Barter or Trade. Salt for Cheese. This agreement, etc. That said A. B. shall sell and deliver to said C. D. , at his store, in , on the day of , one hundred barrels of fine salt, in good, substantial barrels, suitable for packing beef and pork, and for use of the dairy and kitchen. In consideration whereof, said C. D. shall sell and deliver to said A. B., at the storehouse of E. F., in , on the day of , one thousand pounds of good, merchantable cheese, and four hundred pounds of sweet table butter; both well packed, in tierces or firkins, and made in dairies where at least fifteen cows are kept. In witness whereof, etc. Contract Bond. Bond for Performance. See BONDS, UNDERTAKINGS, post. Contract Apprenticeship. Indenture of Apprenticeship. This agreement, made this day of , A. D. , witnesseth : That A. A., of the county of , and State ef , now aged years, of (his or her) own free will, does hereby bind (himself or herself) to serve M. M., of the county of , and State of , as apprentice (or clerk) in the trade of a blacksmith (or other trade, profession, or employment), and to j learn said trade (or profession, etc.), until (he or she j is of the age of eighteen or sixteen years, which will i be nn the) day of , A. D. . That during said term said apprentice shall serve said master faithfully, honestly, and indus- I Wend. 507 ; 17 Id. 447 ; 22 Id. 201 ; 26 Id. 630 ; 10 Mass. I 459; 7 Met. (Mass.) 583: 2 Ala. (N. S. 5425; 14 Me. 250. 226 CONTRACTS. triously, his secrets keep, and lawful commands everywhere obey ; at all times protect and pre- serve the goods and property of the said master, and not suffer or allow any to be injured or wasted. That said apprentice shall not buy, sell, or traffic in his own goods, or the goods of others, nor be ab- sent from the said master's service day or night without leave : but in all things behave as a faith- ful apprentice ought to do, during said term. That said master shall clothe and provide for the said apprentice in sickness, and in health, and supply (him or her) with sufficient and suitable food, raiment, and lodging ; and shall use and omploy the utmost of his endeavors to teach or cause said apprentice to be taught and instructed in the trade of (here state the trade, etc., as above). That said master shall cause said apprentice to be taught to read and write, and the ground rules of arithmetic, the compound rules, and the rule of three. That said master shall at the expiration of said apprentice's time of service give (him or her) suits of clothes, of the value of forty dollars, and dollars in current money of the United States. (If money is paid with the apprentice, insert here} and the said M. M. acknowledges receipt of dollars with said A. A., from (his father or mother, F. A.), as a compensation for his instruction, as above mentioned. ( Or if wages are to be paid for the service of the apprentice, insert) and said M. M. further agrees to pay said A. A. the following sums of money, to wit : for the first year of his service dol- lars; for the second year of his service dollars ; for every subsequent year until the expiration of his term of service dollars ; which said pay- ments are to be made on the day of in each year. And for the true performance of all and singular the covenants and agreements aforesaid, the said parties bind themselves each unto the other. In witness whereof, the parties aforesaid have hereunto set their hands the day and year first above written. (Signature of Apprenticed) (Signature of Master. ) (Signature of Parent or Guardian.) Form of Affidavit of Master to be In- dorsed on the Indenture. State of , county, ss. I do solemnly swear that I will faithfully per- form the duties required by the within indenture and enjoined on me by law. M. M . Subscribed and sworn to before me this day of , A. D. . C. C., Clerk of the Court, or}. P., Justice of the Peace. Contract Building. I^ong Form, This agreement, made this day of , A. D. , by and between A. B. (builder or con- tractor), of , of the first part, and C. D. (manu- facturer or farmer, etc.;, of , of the second part, witnesseth : That said party of the first part, for the consid- eration hereinafter mentioned, covenants and agrees to make, erect, build, and finish, in a good, substantial, and workmanlike manner, and in conformity with the plans, drafts, specifications, and explanations thereof, which is hereunto an- nexed and made a part hereof, a (dwelling house, business house, or other building, naming it), on (here tlescribe the location), in county, State of , on or before the day of , A. D. . That said building shall be made, erected, built, and finished out of good and substantial ma- terials, to be furnished as follows, to wit : By said party of the first part (here give kind, quality , and quantity . etc.) By said party of the second part (same as above). That as soon as the roof thereof is put on and covered, said party of the first part shall effect full insurance on said building, in the sum of dollars, the policy to be in the name and for the benefit of said party of the second part, his heirs, executors, administrators, or assigns, payable, in case of loss, to whom it may concern. That each party to this agreement shall pay one-half the cost of said insurance. In consideration of which, said party of the second part does hereby covenant, promise, and agree, to pay, or cause to be paid, unto said party of the first part, or his legal representatives, the sum of dollars, in the manner following, to wit : (Here state the times, amounts, and manner of payment, etc.) And it is further agreed by and between the parties to this agreement as follows : Alterations. That no charge of any kind shall be made by said party of the first part against said party of the second part beyond or in excess of the sum of dollars for the full performance of this agreement, unless said party of the second part shall alter the afore- said plans, drafts, specifications, and explanations, in which case the value of such alterations shall be added to the amount to be paid under this contract, or deducted therefrom, as the case may require ; it being expressly understood that said party of the second part may, fromv time to time, make any alterations of, to, and in the said plans, drafts, specifications, and explanations, upon the terms aforesaid. Arbitration. That the parties of the first part, and of the second part, severally, respectively, and mutually, agree to submit each, all, and every demand between them hereinafter arising, if any, concerning the manner of performing or completing the work, or the time or amount of any payment to be made under this agree- ment, or the quantity or quality of labor or materials, or both, to be done, furnished, or provided under this agreement, or any other cause or matter touching the work, materials, or the damages contemplated, set forth, or referred to, in or by this agreement, to the determin- ation of A. R., B. I., and T. R., the award of whom, or any two of whom, being made in writing, and deliv- ered to said parties to this agreement, or either of them, within days of the time hereinbefore fixed for the final completion of this agreement, shall be final. Damage sustained by persons or property. That said party of the first part shall be solely responsible for any injury or damage sustained by any and all person and persons, on property, during or subsequent to the progress and completion of the works hereby agreed upon, from or by any act or default of said party of the first part, and shall be responsible over the party of the second part for all costs and damages which said party of the second part may legally incur by reason of such injury or damage ; and that said party of the first part shall give all usual requisite and suitable notices to all parties whose estates or premises may or shall be in any way interested in or affected by the performance of said 'works. Extra work. That no extra work of any kind shall be performed, or extra materials furnished by said party of the first part, unless first authorized by the said party of the second part, in writing ; and That said party of the first part, or his representatives, shall not be delayed in the constant progress of the work under this agreement, or any of the extra work under the same or connected therewith, by said party of the second part : and for each and every day said party of the first part shall be so delayed, additional days shall be allowed to complete the work aforesaid, from and after the day hereinbefore appointed for its entire completion, unless upon the contingency provided for below in the article of this agreement. That for each and every day's delay in the perform- ance and completion of this agreement, or for any extra work under it, after the time hereinbefore fixed for the final completion of this agreement, there shall be al- lowed, and paid by said party of the second part to said party of the first part, or his legal representatives, dam- ages for such delay, if the same shall arise from any act or default on the part of said party of the second part. Foreman. That said party of the first part shall engage and provide at his own expense during the pro- gress of the work, under, and until the complete fulfil- ment of this agreement, a thoroughly competent "fore- man," whose duty it is to attend to the general super- vision of all matters hereby undertaken by said party of the first part, and also the correct and exact marking, preparing, laying out and locating all patterns, moulds, models, and measurements in, to, for, and upon the work hereby agreed upon, from, and in conformity with said plans, drafts, specifications, and explanations. Forfeiture of contract. That if at any time during CONTRACTS. rh progress of said work said party of the second part shall find that said work is not carried forward with sufficient rapidity and thoroughness, or that the materials furnished, foreman, sub-contractors, or workmen em- ployed by said party of the first part, are unskilled, in- competent, and insufficient for the completion of said work within the time and manner stipulated in the plans, drafts, specifications, and explanations aforesaid, he shall give notice of such insufficiency and defects in progress, materials, foreman, sub-contractors, or work- men, to said party of the first part ; and if within days thereafter such insufficiency and defects are not remedied, then said party of the second part may enter upon the work, and suspend or discharge said party of the first part, and all employed under him, and carry on and complete the work by " day's work," or otherwise, as said party may elect, providing and substituting proper and sufficient materials and workmen ; and the expense thereof shall be chargeable to said party of the first part, and be deducted from any sum which may be due to him on a final settlement : all questions arising out of this eighth article of this agreement shall be sub- ject to the final decision of the arbitrators hereinafter mentioned. Liens. That in case any lien or liens for labor or materials shall exist upon the property or estate of said party of the second part, at the time or times when by the terms and provisions of this agreement a payment is to be made by said party of the second part to said party of the first part, such payment, or such pait thereof as shall be equal to not less than double the amount for which said lien or liens shall or can exist, shall not be payable at the said stipulated time or times, notwithstanding anything to the contrary in this agree- ment contained ; and that said party of the second part shall, and may be well assured that no such liens do, or can attach or exist, before he shall be liable to make either of said payments. Work, whether described or not, etc. That all the works described or referred to in the annexed spe- cifications and explanations are to be executed by said party of the first part, whether or not said works are illustrated by the aforesaid plans or drafts : and that said party of the first part is to execute all works shown by said plans and drafts, whether or not said works are described or referred to in said specifications or expla- nations. In witness whereof, the said parties have here- unto set their hands and seals the day and year first above written. A. B. (Witnesses.) C. D. SPECIFICATION OF MATERIALS AND LABOR, ETC. (We here enumerate a majority of the subjects of con- tract which may be agreed upon, and recommend that aid C. D. shall direct. That said A. B. will use his utmost care and diligence in using and working up said C. D.'s materials for said building to the bust and most advantage. That said A. B. will pay and discharge all his workmen to be employed in and about said build- ing in full and at the end of each week during the time he is employed upon said building. That said A. B. shall completely finish all said work belonging to the bricklayer and plasterer, in said building, on or before the day of next. That no lien or liens for work, labor, or ma- terials shall attach or exist at the completion of said building against the same. That in consideration therefor said C. D. shall pay or cause to be paid for all such work as shall by said A. B. be done or performed in and about said building, the following rates: for every thousand brick, by actual count \or measured by custom of bricklayers), laid. per yard for every yard, by actual measure- ment of plastered surface (or measured by custom of plasterers), ornamental work excepted. dollars in full for all ornamental work to no done and performed as aforesaid. That nothing is to be measured or paid for that Ss not covered with plaster. That no extra charge is to be made or allowed t'qr arches, closets, corners, fire-places, jambs, ji lints, recesses, or any other kind of work what- erer, usually or at any time rated as extra, but tlie whole is to be measured actually, singly, and vt ithout repetition, or regard to or for any custom or usage among bricklayers and plasterers, or otherwise. That said C. D. shall pay all said money in the manner following, viz. (state the amounts and dates of payment, etc.) In witness, etc. Contract Building 1 . Materials furnished by Builder, etc. This agreement, etc., witnesseth: That said A. B., for the considerations herein- after mentioned, shall within months from the date hereof, erect, build, and completely cover and finish a dwelling-house and buildings for said C. D., upon lot No. , in street, in the city of , according to the plan and elevation set forth in the schedule hereunder written (or here- unto annexed). That said A. B. shall do, perform, and execute, all and singular, the works also mentioned in said schedule, and according to the plan and elevation therein contained or mentioned. That said A. B. shall provide such good, proper, and sufficient materials of all kinds whatsoever, as shall be suitable for erecting the said dwelling- house and buildings and completely finishing aid works. That said dwelling-house and buildings shall be completed in a good, substantial, and work- manlike manner (to the satisfaction and approval of S. A. [surveyor or architect), for this purpose to be testified by a writing or certificate under the hand of said S. A. That if said A. B. shall be guilty of any delay whatsoever in building and finishing said dwell- ing-house, buildings, or works, then it shall be lawful for the said C. D. to give notice in writing, at the dwelling-house of said A. B., and after days from so giving said notice to purchase proper And sufficient materials, and employ a sufficient number of workmen to complete said dwelling-house, buildings, and works, and to de- duct and retain the cost of said materials and sums of money paid said workmen, out of the money that would be due said A. B. upon the performance of this agreement, and that in such events said A. B. shall not do any act or thing to prevent, hinder, or molest said C. D., or any per- son employed by him, from using said materialr and completing and finishing said dwelling- house, buildings, and works in the manner afore- said. That said C. D. , in consideration of the premises, and subject to the conditions and stipulations in this agreement contained, shall pay or cause said A. B. to be paid the sum of dollars, as fol- lows, viz. (giving terms, time and amounts of caJk payment). Arbitration. See preceding forms. Extra work, etc. That in case said C. D. shall direct more work to b done in and about said dwelling-house, buildings, and works than is contained in the schedule hereunder written (or hereunto annexed), then and in such case he shall pay said A. B. so much money as such extra work and the materials used therein shall cost and amount to (not exceeding dollars). Omitted work, etc. That in case said C. D. shall direct less work to be done in and about said dwelling-house, buildings, or works, or to diminish or omit any work thereon, then and in such case he shall deduct, and said A. B. shall allow, out of said sum of dollars, so much money as the work so diminished or omitted shall amount to, upon a reasonable and true valuation (not exceeding dollars). Workmen's wages to be paid by owner. That said C. D. sh;ul, , very week during the progress of said buildings and works, pay and supply said A. B. with such sums of money as shall be sufficient for pay- ing and discharging the workmen and laborers for their labor and wages, as the same shall become due and pay- able, not exceeding the sum of dollars (in any one week or month), and that said payments shall be ascer- tained by said S. T. by a certificate under his hand. That said A. B. shall receive (weekly or monthly) the sum of dollars. That the remainder of said sum of dollars shall be paid said A. B. upon the completion of said buildings and works ready for use and occu- pancy, the same to be ascertained as aforesaid. In witness, etc. Contract Buildiuars, etc. Rebuilding Mills. This agreement, etc., witnesseth : That said party of the first part, for the consid- eration hereinafter mentioned, will, on or before the day of next, completely and thor- oughly rebuild or cause to be rebuilt the mills of said party of the second part, situate on the outlet of the lake, in the town of , with such materials and workmen as said party of the second part shall find and provide for the same. That said party of the first part shall not absent himself nor depart from the work and rebuilding aforesaid, without leave of said party of the second part. That if said party of the first part shall absent himself without leave, he shall pay said party of the second part dollars for every day of such absence, to be deducted from the wages becoming due to said party of the first part, as hereinafter provided. That said party of the second part, in consid< eration of the premises, shall pay said party of the first part, for all such time as he shall be env- ployed in such work and rebuilding weekly, each week, the sum of dollars, and so, in propor- tion, for a less time than a week ; and in addition thereto the sum of dollars on the completion of said work and rebuilding. In witness whereof, etc. Contract Building, etc. Taking Down and Rebuilding. This agreement, etc., witnesseth : That said A. B., for the consideration herein-, after mentioned, shall forthwith take down the dwelling- (or store-) house of said f, D., situated at , etc. 230 CONTRACTS. That in the place and stead thereof he will make, erect, build, and finish one new dwelling- s-store- , house (or tenement), forty feet in width, fifty feet in length, a cellar of corresponding size, and feet deep, and two and one-half stories high, with four rooms on the first two, and two rooms on the attic floors. That said A. B. shall find and provide at his own costs and charges, all manner of brick, iron, lath, lead, lime, nails, sand, shingles (slate), stone, tin, tiles, and all and every other material and manufactured article customary or necessary to the proper construction of the same. That said A. B. shall cleanse and carry away and dispose of all rubbish whatsoever which ehall arise in the execution or by virtue of this agreement. That said A. B. shall, on or before the day of , well and substantially, and in a work- manlike manner in all things complete the said building ready for immediate occupancy. That said C. D. shall, in consideration thereof, pay unto said A. B. the sum of dollars, as follows (stating terms, time, and amount of pay- ment). In witness whereof, etc. Contract Building', etc. Taking Doivn and Rebuilding. This agreement, etc., witnesseth : That A. B., for the consideration hereinafter mentioned, shall forthwith take down and re- move the dwelling-house of C. D., situated on lot No. , in street, in ; and in the stead thereof shall, on or before the day of next, make, erect, build, and finish one new tenement or dwelling-house, of the following di- mensions, viz. : width of front , length or depth backwards , height , of stories, each high ; all divided into rooms as follows, . The dimensions of the cellars shall be as follows, viz., , etc., etc. That said A. B. shall furnish at his own cost and expense, all stone, brick, lumber, sand, lime, iron, hardware, nails, oils, paints, glass, putty, and all and everything necessary in the complete erection and finish of said building, fit and ready for occupancy. That said C. D., in consideration of said build- ing being so made, erected, built, and finished, shall pay or cause to be paid unto said A. B. the sum of two thousand dollars, at three several payments, to wit : Five hundred dollars thereof at the beginning of said work. Five hundred dollars when the roof of said building is framed and covered. The one thousand dollars remaining, when the whole building is completed as aforesaid. In witness whereof, etc. Contracts Building and Construction. Engines and Machinery for Steamship, etc. This agreement, etc., witnesseth : That said A. B. shall, for the consideration hereinafter mentioned, build, construct, and fin- ish, and set in position, and secure complete and perfect in all its parts, together with all appurte- nances, ready for sea and service, furnishing all materials therefor, according to the specifications hereunto annexed, and in a good, substantial, and workmanlike manner, the following engines and machinery for said C. D., to the satisfaction and under the direction of the superintendent of such construction, in said specification named. That said engines and machinery shall consist of two side-lever low-pressure steam marine en- gin-is and four boilers, of the capacity, dimen- sions, material, and workmanship mentioned in the specification hereunto annexed ; and with all tools, fixtures, and appurtenances therein men- tioned, or referred to, or properly appertaining or belonging thereto. That in every particular which is not specifically named and provided for in said specification, and said engine and boilers, tools, fixtures, and ap- purtenances shall be built, constructed, and fully completed, of such materials, and in such man- ner in every respect as said superintendent shall approve and direct* That said engines, boiltrs, tools, fixtures, ani appurtenances shall be set in position, secured fixed, and fully completed in readiness for sea and service, on board of the steamship , now building for said C. D. at , and in every re- spect ready for use on or before the day of . That said C. D. shall, in consideration thereof, pay unto said A. B. the sum of dollars, as fol- lows: dollars upon the execution of these presents, dollars upon, etc. Etc. And the residue of said sum of dollars so soon as said engines, boilers, tools, fixtures, and appurtenances are proved by a satisfactory trial to be built, constructed, completed, fixed, set in position, and secured in all respects according to the provisions of this agreement. In witness, etc. Contract Building 1 and Construction. Locomotive, Agreement between A. B. and C. D. , composing the firm of A. B. & Co., of , and P. T. and T. R., president and secretary of the Company, witnesseth : That said A. B. &Co. shall build for said com- pany one locomotive engine and tender, as here- inafter described (or of the same model, make, kind, and description as the now in use at by the Company; or of the same model, make, descrip- tion, and finish as that described on pages and inclusive, in a certain book, the title of which is as fol- lows : ), and deliver the same at , on or be- fore the day of next. That said P. T. and T. R. shall, in consideration thereof, pay unto said A. B. & Co. (by the draft of P. T., accepted by T. R., and payable from date, with interest), the sum of dollars. DESCRIPTION. Said engine shall be constructed from the most approved and best quality of materials, and in th most perfect system and manner, and (of the sam* model, make, description, and finish, etc., as above). The power and efficiency of said engine to be warranted at , and sufficient to carry one hundred tons, of two thousand pounds to the ton, of empty cars on an ascending grade not ex- ceeding forty feet to the mile, with a curve not less than six hundred feet radius, at a speed not exceeding miles per hour. In witness whereof, said parties have hereunto set their hands (and seals) this day of . A. B. & Co. [Seal.] Co., By P. T., President, rc , , andT. ^..Treasurer, i^^-l Contract Building: and Construction. Paving Streets, etc. This agreement, made this day of , be- tween A. B., party of the first part, and the city of , party of the second part: That the said party of the first part, for and in consideration of the sum of one dollar to him in hand well and truly paid by said city of , the receipt of which is hereby acknowledged, and of other good and sufficient considerations, here- by covenants and agrees to and with said party of the second part, to pave street from street to street with pavement, in accordance with resolution of councils (an ordinance entitled, etc.) approved (or passed) . That said party of the first part further cove- nants and agrees that he will execute and finish said paving in accordance with all the ordinances (or resolutions) of said city relating to paving, and that he will fully and faithfully comply with all their provisions. That said party of the first part also hereby agrees that he will keep the said street in good order and repair for at least three years after the same shall have been paved and thrown open for public use, and that the said city of shall be at no expense for said paving, excepting the fol- lowing intersections of cross streets, etc. (describ- ing them fully). That said party of the first part shall not trans- fer his right or authority to other parties to pave aid street, without first having obtained the cn- CONTRACTS. 231 ient, in writing, of the chief commissioner of highways (or other proper officer, naming him} ; nor shall said paving be commenced without a writ- ten order from the said chief, etc., and shall be completed on or before the day of , and if the work is not completed within the time specified, said chief, etc., is hereby authorized to annul this contract upon three days' notice. That said party of the first part shall properly enclose the said work, and to place signal lights thereon at night. That said party of the first part shall be respon- sible for and pay all loss or damages which may arise by reason of the prosecution of the said work, and in case of the happening of such loss or damages, the amount thereof shall be retained by the party o; the second part out of any payment or payments due or to grow due hereunder. That said party of the second part, for and in consideration of the covenants hereinbefore men- tioned to be done, shall pay the said party of the first part for the work done under and in pursu- ance of this contract, in assessment bills, made out and signed by the proper officers, at the rate or sum of dollars and cents for each and every square yard of said pavement laid in pur- suance hereof, except for the intersections of cross streets, etc., aforesaid, which shall be paid for by warrants on the city treasurer, drawn by said chief, etc., at the rate of dollars and cents for each and every square yard of said in- tersection paved in pursuance hereof, the total cost of said intersections not to exceed in any event the sum above specified. That it is, however, expressly stipulated and provided by said party of the second part, that said assessment bills and said warrants shall be accepted as so much cash, and that in the event of a failure to collect said assessment bills, no recourse shall be had against said party of the second part for the whole or any part of the amount for which they have been issued. That the said party of the first part may use the name of the city, and employ all her legal remedies, by lien or otherwise, in the collection of said assessment bills at the cost of said par- ties of the first part. This agreement shall not be construed to allow paving to be done after the first day of Decem- ber, or before the first day of April, in any year. In witness whereof, the said party of the first part has hereunto annexed his hand (and seal), and said chief, etc., of the said city of , has hereunto set his hand and seal, the day and year first above written. The words from "And " to " hereunder " in , the margin being firstadded and made a part of the contract. Sealed and delivered in the presence of A. B. [Seal.] The City of , By C. D. ( Chief, etc. [Seal.'] . ISeal.] Guaranty of Performance. For a good and valuable consideration by us received, we, the undersigned, do hereby guar- antee a faithful compliance with the terms of the above agreement, upon the part of the said A. B. S. R. [Seal.] T. Y. [Seal.] Sealed and delivered in the presence of W. T.,N. S. Contract Building: and Construction. Ship or Yacht. This agreement, etc., witnesseth : That said A. B., for the consideration herein- after mentioned and with materials to be fur- nished by said C. D. , at his yard, in , shall, in a good, substantial, and workmanlike manner, build the hull of a new ship, of dimensions as follows : (giving them}. That said A. B. shall launch said ship on or be- fore the day of next. That said C. D., in consideration therefor, shall pay said A. B. after the rate of dollars per ton for every ton of said ship's burthen or tonnage (carpenter's or other) measure. That said s"m sha" ^e payable (as follows, goring terms, etc.) within days after launching saii ship. In witness, etc. Contract Building and Construction. Skip or Vessel. This agreement, etc., witnesseth: That said A. B. shall, at his present place of building, on or before the day of next, in a good, substantial, and workmanlike manner, build for said C. D. the hull of a ship or vessel of the dimensions hereinafter mentioned, for the sum of dollars, and such other and further sum and sums of money to be ascertained and paid at such times and in the manner hereinafter specified. Calking, finishing, etc. The hull and deck of said vessel shall be thoroughly calked with well teased oakum and filled up and finished in a substantial and workmanlike manner with all things of the best quality, and necessary and usually made and provided by shipbuilders for ships of such burthen and construction as said vessel shall be. Description, dimensions, materials, work, etc. The keel of the hull shall be in length, within the posts, eighty feet; the rake afore to be ten feet, and the rake abaft in suitable proportions ; the harpings to lie at fourteen feet forwards and fifteen feet aft ; the hull at the dead flat to be in breadth twenty-eight feet, the birth thereof to be nineteen feet from the top of the ceiling to the top of the covering board ; the square of the floor to be fifteen inches on the keel and eleven inches at the sir- monk ; the timbers to be eight inches square at the binds and four inches at the top timber heads ; the transom to be eighteen feet long ; the post four feet broad ; the plank from the keel to the binds to be three inches thick, except five strokes on each side, viz.: three on the bilge and two under the binds, which are to be four-inch plank ; the hull to have three binds, each ten inches deep and seven inches thick ; one stroke immediately above the binds to be four-inch plank ; all the rest to the channel binds to be two and a-half-inch plank ; to have twelve hold beams, thirteen inches square, with eight hooks forward, all whole transoms aft, and one hook to be ceiled with three-inch plank from the keel to the underside of the hold beams, excepting three strokes on the bilge on each side, four-inch plank ; all the ceil- ing from the hold beams to the upper deck beams to be two and one-half-inch plank, excepting one long plank under the main deck beam, which is to be four inches thick ; to be ceiled fore and aft with two and one-half- inch plank, and above the binds forward with two-inch plank ; to have one four-inch plank to be bolted to the fore beam and transom, knees to be bolted through the side into the beams : the main deck to be laid with Nor- way deals three inches thick, two abaft the mainmast, and from thence to be two and one-half-inch plank : to have sufficient number of main deck beams ; to have two feet ten inches waste, and two drifts fore and aft two feet deep ; the quarter deck and forecastle deck to be laid with Norway deals two inches thick ; the floors to be sixteen feet long, with fourteen inches rise, the binds to have two feet and a half hang ; the covering boards in the midships to be two and a-half-inch plank. All timbers and planks to be made use of in building the hull of said vessel, except the Norway deal planks with which the decks are laid as aforesaid, are to be oak of English growth, well seasoned and dried, and in every respect fit and suitable for the purposes to which the same shall be applied. The trenules shall be purchased at , and of the best quality. Said vessel shall have a windlass, capstan, cathread=, rudder, and tiller, all of good, sound oak, as aforesaid, of a size and construction fit for sucli vessel. Said vessel shall have fourteen gun ports. Etc., etc. That said C. D. shall, in consideration thereof, pay unto said A. B. , on the execution of these presents, the sum of dollars, and the further sum of dollars upon laying the bankings of said vessel, and dollars upon laying the deck of said vessel, and dollars, the rest and resi- due of all sum and sums due said A. B. by reason of the premises, upon launching and mooring said vessel in safety in port (or harbor). That the hull of said vessel, from time to time, during the building thereof, and until the same shall be safely rqoored nnd delivered *s afoi^said. CONTRACTS. shall stand charged with and be a security unto said C. D. for the sum of dollars, paid on the execution of these presents ; and for such further and other sums of money paid to said A. B. , in pursuance of this agreement. That said hull shall not be or become liable or subject to the contracts, debts, or engagements, or otherwise affected by any act of said A. B., or his legal representatives, to the prejudice of said C. D. That said A. B. shall, after said vessel is moored and delivered in safety in said port (or harbor;, by some proper instrument in writing, assign the same, free from all incumbrances, to said C. D at his request and costs and charges In witness, etc. (Contract Building; and Construction. To hold shares in it Yacht or Ship. This agreement, etc., witnesseth : That A. B., E. F., G. H., and I. K. shall each hold the several parts of a new ship by them respectively subscribed hereunder, of a new yacht (or ship, to be called ), of the burthen cf tons burthen, or thereabout, for the build- ing of which A. B. has contracted with C. D., f . That each of said first-named parties so holding said parts shall pay his respective full propor- tioned part of the money to be paid for the build- ing of said vessel, at the time and times the same shall become due by the contract respecting tho same. That said E. F. shall, when said vessel is com- pleted and delivered, be master thereof. That the charge of outset and fitting said vessel for service shall be paid by said first-named par- ties, in such proportion as the majority of the owners thereof shall agree. In witness, etc. Contract Building or Construction. Steamship. This agreement, etc., witnesseth : That said A. B. shall build, construct, and com- plete a steamship, of the dimensions and ma- terials mentioned in the specifications hereunto annexed, and in all particulars conform to said specifications and directions by the superintend- ent of such building herein named, for the sum of dollars, to be paid as hereinafter men- tioned. That said A. B. shall furnish all the materials for said steamship according to said specifica- tions, saving and excepting only such as by the express terms of said specifications are to be fnrnished by said C. D. That S. T. shall be superintendent of the build- ing and construction of said steamship. That the whole of said vessel shall be built, constructed, and finished of materials of the best quality, and in the best, most durable, and work- manlike manner. That said steamship shall be built, constructed, and completed of such materials, and in such proportions of each, and in such manner, in all respects as said superintendent shall direct. That said steamship shall be launched on or before the day of next, and thereupon placed at the disposal and under the direction of said superintendent, at , for the purpose of receiving her engines and machinery, and shall thereafter be fully completed as soon as said superintendent shall direct (not exceeding, how- ever, therefrom). That in consideration thereof said C. D. shall pay to said A. B. the sum of dollars, in in- stalments, as the material is delivered and work progresses, as follows : The first payment of dollars when the keel is laid. All other payments at the end of every thereafter in the same proportion to the whole amount to be paid, which the work done and materials delivered shall bear to the whole work and materials required for the full perform- ance of this agreement. In witness, etc. Contract Building and Construction. Railroad. Articles of agreement, made and concluded this day of , A. D. , by and betweea the P. R. R. Co., of the first part, and A. B. &Co., of the second part, witnesseth : That for and in consideration of the covenants and payments hereinafter mentioned to be made and performed, by the said party of the second part, the said party of the first part doth hereby covenant and agree to complete in the most sub- stantial and workmanlike manner, to the satis- faction and acceptance of the engineer of said company: All bridges, etc., etc. All buildings, etc., etc. All grading, masonry, etc., etc. Etc., etc. The said work to be finished as described itt the following specifications, and agreeably to the directions received from the said engineer or his assistants, on or before the day of . SPECIFICATIONS FOR GRADING. 1. Under this head will be included all excavations and embankments required for the formation of the road-bed; cutting all ditches or drains about orcontigu- ous to the road ; the foundations of culverts and bridges, or walls : the excavations and embankments necessary for reconstructing turnpike or common roads, in cases where they are destroyed or interfered with in the forma- tion of the railroad ; and all other excavations or em- bankments connected with, or incident to, the construc- tion of said railroad. 2. All cuttings shall be measured in the excavations, and estimated by the cubic yard, under the following heads, viz., earth, loose rock, solid rock, embankment. Earth will include clay, sand, loam, gravel, and all other earthy matter, or earth containing loose stone, or boulders intermixed, which do not exceed in size three cubic feet. Loose rock shall include all stone and detached rock lying in separate and contiguous masses containing not over one cubic yard ; also, all slate or other rock that can be quarried without blasting, although blasting may be occasionally resorted to. Solid rock includes all rock occurring in masses ex- ceeding one cubic yard which cannot be removed with- out blasting. 3. Earth, gravel, and other material taken from exca- vation (except when otherwise directed by the engineer} shall be deposited in the adjacent embankment, the cost of removing which, when the haul is not more than feet, will be included in the price paid for excavation ; all material necessarily procured from without the road, and deposited in the embankments will be paid for as embankment only, but all material necessarily procured from within the line of the railroad, and hauled more than feet, will be paid for as excavation and also ai. embankment. In procuring materials for embankment from without the line of road, the place will be desig- nated by the engineer in charge of the work, and in ex- cavntmg and removing it care must be taken to injure or disfigure the land as little as possible. 4. The embankment shall be formed in layers of such depth, and the materials disposed and distributed in such manner, as the engineer may direct, with the re- quired allowance for settling. Material necessarily wasted from the cuttings shall be used in widening the embankments, or be deposited in the vicinity of the road, according to the directions of the engineer. 5. The ground to be occupied by the excavations and embankments, together with a space of twelve feet be- yond the slope stakes on each side, or ten feet beyond the berm ditch where one is required, shall be cleared of all trees, brush, and other perishable matter. Where the filling does not exceed two and a half feet, the trees, stumps, and saplings must be grubbed : but under all other portions of the embankment it will be sufficient that they be cut close to the earth : no separate allow- ance will be made for grubbing and clearing ; but its cost will be included in the price for excavation. 6. Contractors, when desired by the engineer in charge of the work, shall deposit on the side of the road, or at such convenient points as may be designated, any stone or rock that they may excavate : and if, in so do- ing, they should deposit material required for embank- ment, the additional cost, if any, of procuring other ma- terials from without the road, will be allowed. AR stone or rock excavated and deposited as above, together with all timber removed from the line of the road, will be considered the property of th said company, aad CONTRACTS. 233 the contractors upon the respective sections will be re- sponsible for its safe-keeping until removed by said company, or until the work herein contracted for is finished. 7. The line of road, or the gradients, may be changed if the engineer shall consider such change necessary or expedient ; and for any considerable alterations the in- jury or advantage to the contractor will be estimated and such allowance or deduction made in the prices as the engineer may deem just and equitable ; but no claim for an increase in prices of excavation or embankment on the part of the contractor will be allowed or consid- ered unless made in writing before the work, on that part of the section where the alteration has been made, shall have been commenced. The engineer may also, on the conditions last recited, increase or diminish the length of any section for the purpose of more nearly equalizing or balancing the excavations and embank- ments. 8. Whenever the route of the railroad is traversed by public or private roads, commodious passing places must be kept open and in safe condition for use ; and in passing through farms the contractor must also keep up *uch temporary fences as may be necessary for the pres- ervation of the crops. 9. No charge shall be made by the contractor for hin- drances or delay from any cause in the progress of any portion of the work in this contract, but it may entitle him to an extension of time allowed for completing this work, sufficient to compensate for the detention, to be determined by the engineer, provided he shall give the engineer in charge immediate notice in writing of the cause of the detention. Nor shall any claims be allowed for extra work unless the sae shall be done in pursuance of an order from the engineer in charge, and the claim made at the first settlement after the work was executed, unless the engineer, at his discretion, should direct the claim, or such part as he may deem just and equitable, to be allowed. 10. The quantities exhibited to the contractor at the time of soliciting proposals for the work herein con- tracted for are necessarily only approximate ; they fur- nish only general information, and will in no way govern or affect the final estimate, which will be made out on the completion of the work from actual measurements and established facts not determinable at time of letting the work. Form vf Bids. See below. SPECIFICATIONS FOR MASONRY. i. AH masonry will be estimated and paid for by the cubic yard of twenty-seven cubic feet, and will be in- cluded under the following heads, viz., Brick work, bridge masonry , rectangular culvert masonry, arched culvert masonry, vertical and slope wall masonry, and rip-rap. 2. Brick work. Where bricks are used in arches, piers, or abutments of bridges, they shall be made of the best clay, well-tempered, moulded and burnt ; they shall be thoroughly wet, and laid in thin mortar made of the best hydraulic cement mixed with such portion of sand as the engineer in charge may direct. Laying of bricks dry and subsequent grouting will not be per- mitted, excepting in the courses which form the keys of arches. The joints to be of such thickness, and the bond to be of old English, Flemish, or such other char- acter as the engineer may prescribe, either for the walls or arches. No bats, cracked, broken, or salmon brick to be used in the work. Brick Drains, where required, shall be of such form as the engineer in charge may designate ; if barrel or circular, the lower half shall invariably be laid dry upon bed duly dressed to radius of exterior of drain; the upper half to be laid in hydraulic cement, or lime-mor- tar, at the engineer may direct. Form of Bids. See below. 3. Bridge masonry. When rock foundation cannot he had for abutments and piers the masonry shall be started upon hewn timber sunk to such a depth as to protect it from decay and to prevent the possibility of tinderwashing. The timber platforms will be composed of one or more courses, according to the depth of the water, the height of the masonry, or other circumstances of which the engineer shall judge and determine. The masonry will be of two qualities, either to be adopted at th^ discretion of the engineer. First quality bridge masonry will be rock range work. The stone to be accurately squared, jointed and bedded, and laid in courses of not less than twelve nor ex- ceeding twenty inches in thickness, regularly decreasing from bottom to top of pier or abutment. The stretchers shall in no case have less than sixteen inches bed for a twelve-inch course, and for all courses above sixteen inches they shall have at least as much bed as face ; they will generally be at least four feet in length. The headers shall be of similar size with the stretchers, and shall hold the size in the heart of the wall that they show on the face, and be so arranged as to occupy one-fifth of the face of the wall, and they shall be similarly disposed in the back. When the thickness of the wall will admit of their interlocking they shall be disposed in that manner. When die wall is too thick to admit of that arrangement, stones not less than four feet in length shall be placed transversely in the heart of the wall to connect the two opposite sides of it. The stone for the heart of the wall shall be of the same thickness as those in the face and back, and must be well fitted to their places; any re- maining interstices shall be filled with sound stone chips. The face stone to be set in hydraulic cement mortar, the interior stones to be laid dry, and every course to be thoroughly grouted. The proportion of sand, cement, and lime, in the mortar and grout, to be as directed by the engineer. The upper surface of each course shall be level throughout with the upper bed of the face stone thereof. The stones, forming the points of piers, which act as ice-breakers, shall be neatly dressed on their faces ; the other face stones may be left with the face as they come from the quarry, unless the projections should exceed two inches, in which case they shall be roughly scabbled down to that point. The abutments and piers, or such portions of them as the engineer may direct, shall be covered with a course of coping, not less than inches thick, well dressed, and fastened together with clamps of iron. Second quality of bridge masonry shall be rubble work, laid in irregular courses, and shall consist of stone containing, generally, six cubic feet each, so disposed as to make a firm and compact work ; and no stone in the work shall contain less than two cubic feet, except for filling up the interstices between the large blocks in the heart of the wall ; at least one-fifth of the face shall be composed of headers, extending full size four feet into the wall, and from the back the same proportions and of the same dimensions, so arranged that a header in the back shall be between two headers in the face. The corner-stones shall be neatly hammer-dressed so as to have horizontal beds and vertical joints. 4. Culvert masonry Arched. The foundations of arched culverts, when the bottom of the pit is com- mon earth, gravel, etc., will generally consist of a pave- ment formed of stone set edgewise, not less than twelve inches in depth, secured in the same manner as described below for rectangular culverts. When the founda- tion upon which a culvert is to be built is soft and com- pressible, and where it will at all times be covered with water, timber well hewn, and from eight to twelve inches in thickness, according to the span of the culvert, shall be laid side by side crosswise upon longitudinal sills ; and where a strong current will be forced through during floods, three courses of sheet piling are to be placed across the foundation, one course at each end, and one in the middle; to be sunk from three to six feet below the top of the timber according as the earth is more or less compact. The abutments are to be built of range work or in broken courses, the face stones bedded and jointed. The stretchers in the face are to have beds of at least fifteen (15) inches, and in no case less bed than rise, and they are to be not less than two feet long, measured in the face of the wall. The headers shall extend through the wall in cases where it does not ex- ceed three and a half feet thick, and they shall not have less than eighteen (18) inches length of face. There shall be not less than one header to ever)' seven feet of face, measured front centre to centre of headers, and so arranged that a header in a superior course shall be placed between two headers in the course below; the backing stones shall be of large size, and have parallel beds, laid so as to break joints with one another, and when the thickness of the wall exceeds three and a half feet, headers of the same dimensions as those in the face shall be placed in the back of the wall, in the pro- portion of one for every two headers in the face. The arch stone shall have accurately cut beds and joints and shall be laid in courses throughout. The ring stones shall be neatly cut and composed of alternate long and short bond stones of not less than three feet, and eighteen CONTRACTS. inches, respectively. The parapet and wing walls shall be built similar to the abutments and covered with a well-dressed coping, not less than ten inches thick and three feet wide. .The outside stones to be laid in cement mortar, and the whole wall thoroughly grouted. The spandrel backing to be good rubble work, built as di- rected by the engineer. Culvert masonry Rectangular. All rectangular culverts will be built dry, with a water way of not less than two and a half by three feet ; the abutments will rest on a pavement of stone, set edgewise, of at least ten inches in depth, confined and secured at the ends by deep curbstones, which must be protected from under- mining by broken stone placed in such quantity and po- sition as the engineer may direct. The abutment walls shall not be /ess than two feet thick, and built of good- Sized and well-shaped stone, properly laid and bound to- gether by stones occasionally extending entirely through the walls. The upper course to have at least one-half of the stones headers ; and the stretchers in no case to be less than twelve inches wide ; no stone in this course to be less than six inches thick. The covering to be of sound, strong ston-;, at least twelve inches thick, and to lap its whole width not less than ten inches on each abutment. The thickness of the covering stone and di- mensions of the whole walls to be increased at the dis- cretion of the engineer. 5. Rip-rap. Where the excavation of the road-bed does not furnish sufficient stone for the protection of walls and embankments, the same shall be procured at such places, and disposed in such manner as the engineer may direct, and shall be estimated and paid foras rip-rap. 6. Slope wall and vertical masonry. The vertical walls shall be good, dry rubble work, and of such di- mensions and built with such batter as the engineer may direct. Slope walls shall be built of such thickness and slope as may be required by the engineer, no stones, however, to be used in their construction which do not reach through the walls, or that are less than six inches in thickness and twelve inches in length ; the beds of the stones to be placed at right nagles to the face of the bank ; the joints must be close and free from spalls. 7. In all masonry the stone or brick must be of a quality, size, and shape to be approved of by the engi^ neer. Such portions of the masonry as the engineer may require to be laid in lime mortar, or hydraulic ce- ment, snail be so laid ; the furnishing or paying for the lime and cement used. If, in the progress of the masonry, an increase in the number of headers specified should be required by the engineer, such additional number shall be laid in the work as he shall designate. The price per cubic yard paid for all masonry, whether of brick or stone, shall in every case include the furnishing of all materials, together with (or less) the cost of scaffolding, centring, etc., and all expenses at- tending the delivery of these materials, and all risks from floods or otherwise. And the said party of the second part does promise and agree to pay to the said party of the first part, for all the work to be performed under this contract, as follows, to wit : Earth excavation, per cubic yard, 20 cents. Rock excavation, " " 60 " Bridge masonry, " " $5.00. Etc., etc. On or about the last day of each month during the progress of this work, an estimate shall be made of the relative value of the work done, to be judged of by the engineer, and 90 per cent, of the amount of said estimate shall be paid to the party of the first part, on or about the isth day pf the following month. And when all the work embraced in this contract is completed, agreeably to the specifications and in accordance with the directions and to the satisfaction and acceptance of the engineer, there shall be a final estimate made of the quality, character, and value of said work, according to the terms of this agreement, when the balance appearing due to the said party of the first part shall be paid to him within thirty days thereafter, upon his giving a release, under cat, to the party of the second part, from all claims or demands whatsoever growing in any manner out of this agreement, and upon his pro- curing and delivering to the parties of the second part full releases in proper form and duly exe- cuted, from mechanics and material men, of all liens, claims and demands fpr materials furnished and provided, and work and labor done and per- formed upon or about the work herein contracted for under this contract. It is further covenanted and agreed between the said parties, that the said party of the first part shall not sub-let or transfer this contract, nor any part thereof, to any person (excepting for :he delivery of materials;, without the written con- sent of the engineer, but will at all times give per- sonal attention and superintendence to the work. It is further agreed and understood that the work embraced in this contract shall be com- menced within five days from this date, and pros ecuted with such force as the engineer shall deenr. adequate to its completion within the time speci fied ; and if at any time the said party of the firs part shall refuse or neglect to prosecute the work with a force sufficient, in the opinion of the said engineer, for its completion within the time specified in this agreement, then, and in that case the said engineer in charge, or such other agent as the engineer shall designate, may proceed t employ such a number of workmen, laborers, and overseers as may, in the opinion of the said engineer, be necessary to insure the completion of the work within the time hereinbefore limited, at such wages as he may find it necessary or ex- pedient to give, pay all persons so employed, and charge over the amount so paid to the party of the first part as for so much money paid to him on this contract ; or for the failure to prosecute the work with an adequate force, for non-com- pliance with his directions in regard to the man- ner of constructing it, or for any other omission or neglect of the requirements of this agreement and specifications on the part of the party of the first part, the said engineer may, at his discre- tion, declare this contract or any portion or sec- tion embraced in it forfeited ; which declaration and forfeiture shall exonerate the said company from any and all obligations and liabilities arising under this contract the same as if this agreement had never been made ; and the reserved percent- age of ten per cent, upon any work done by the party pf the first part may be retained forever by the said company. And the said party of the first part has further covenanted and agreed to take, use, provide, and make all proper, necessary, and sufficient precau- tions, safeguards, and protections, against the occurrence or happening of any accidents, inju- ries, damages, or hurt to any person or property during the progress of the construction of tho work herein contracted for, and to be responsible for, and to indemnify and save harmless the said parties of the second part, and the said engineer, from the payment of all sums of money by rea- son of all or any such accidents, injuries, dam- ages, or hurt, that may happen or occur upon or about said work, and from all fines, penalties and loss incurred, for or by reason of the violation of any city or municipal ordinance or regulation, or law of the State, while the said work is in pro- gress of construction. In witness whereof, the parties herein named have hereunto set their hands and seals, the day and year herein first above named. [ Witness.} Contract Building and Construction. Railroad Zsub- Division, This agreement, etc. (See the preceding form}. SPECIFICATIONS FOR A PERFECT SUB-DIVISION. Road Bed and Ballast. i. The ballast must be broken evenly and not large than a cube that will pass through a two and one-hah inch ring. There must be a uniform depth of at leas' twelve inches of clean broken stone under the ties. The ballast must be filled up evenly between, but not above the top of the ties, and also between the main tracks and sidings where there are any. In filling up between the tracks, coarse, large stones must be placed in the bottom in order to provide for drainage, but care should be taken to keep the coarse stone away from the ends of the ties. At the outer ends of the ties the ballast must be sloped off evenly to the sub-grade. a. The road crossing planks must be securely spiked ; the planking should be three-quarters of an inch below the top of the rail, and two and one-half inches from the CONTRACTS. gauge line. The ends and inside edges of plank should be beveled off. Ditches. 3. The cross section of ditches at the highest point must be of the width and depth as shown on the stand- ard drawing, and graded parallel with the track so as to pass water freely during heavy rains and thoroughly drain the road bed. 4. The lines must be made parallel with the rails and well and neatly defined. 5. The necessary cross drains must be put in at proper intervals. 6. Earth taken from ditches or elsewhere must be dumped over the banks and not left at or near the ends of the ties, but distributed over the slope. Earth taken Out of the ditches in cuts must not be thrown on the slope. 1 7. The channels or streams for a considerable distance above the road should be examined, and brush, drift, and other obstructions removed. Ditches, culverts, and box drains should be cleared of all obstructions and the outlets and inlets of the same kept open to allow a free flow of water at all times. Policing. 8. The telegraph poles must be kept in proper posi- tion, and trees near the telegraph line must be kept trimmed to prevent the branches touching the wires during high winds. 9. All old material, such as old ties, old rails, chairs, car material, etc., must be gathered up at least once a week and neatly piled at proper points. 10. Briers and undergrowth on the right of way must be kept cut close to the ground. n. Station platforms and the grounds about stations must be kept clean and in good order. Superstructure. 12. The track must be "n good surface ; on straight Jines the rails must be on the same level, and on curves the proper elevation, as set down in the table, must be given to the outer rail, and carried uniformly around the curve. This elevation should be commenced from 100 to 150 feet back of the point of curvature, depending on the sharpness of the curve, and increased uniformly to the latter point where the full elevation is attained. The same method should be adopted in leaving the curve. 13. The track must be in good line. 14. The splices must be properly put on with the full number of bolts, nuts, stop washers and stop chairs. The nuts must be screwed up tight. 15. The joints of the rails must be exactly midway between the joint ties, and the joint on one line of rail must be opposite the centre of the rail on the other line of the same track. In winter a distance of five-six- teenths of an inch, and in summer one-sixteenth of an inch, must be left between the ends of the rails to allow for expansion. 16. The rails must be spiked both on the inside and outside on each tie, on straight lines as well as on curves. 17. Thecross ties must be properly and evenly spaced, 16 ties to a 30 ft. rail, with 10 inches between the edge of bearing surfaces at joints, with intermediate ties evenly spaced a distance of not over two feet from cen- tre to centre, and the ends on the outside, on double track, and on the right hand side going north or west on ingle track, must be lined up parallel with the rails. 18. The ties must not, under any circumstances, be notched, but should they be twisted, must be made true with the adze, and the rails must have an even bearing over the surface of the ties. ip. The switches and frogs must be kept well lined up and in good order. Switches must work easily and afety blocks must be attached to every switch head. 20. The switch signals must be kept bright and in .jfood order. In witness, etc. roiitrsu'l Building? and Construction. Railroad Ticket Office. SPBCIFICATIONS FOR BUILDING TICKET OFFICE. The specifications are intended to embrace the entire structure complete and ready for occu- pancy, the whole to be comprised within any con- tract or contracts that may be made for the same. The entire work is to be constructed and fin- ished in every part in a good, substantial, and workmanlike manner, according to the accom- panying drawings and these specifications, to the full extent and meaning of the same, and to the entire satisfaction, approval, and acceptance of the engineer and architect, and under the super- vision and direction of such agent or agents as may be appointed. The following is a list of the drawings which accompany these specifications, and which form part thereof. No. i. Ground plan. No. 2. Front elevation. No. 3. Cross section. No. 4. Plan and details of roof. GENERAL CONDITIONS. All the work to be done in the best and most workmanlike manner, of approved materials, ac- cording to these specifications, and the plans and drawings hereinbefore referred to ; and every- thing necessary to the proper and complete exe- cution of the said plans and drawings, whether the same may have been herein particularly spe- cified or not, or indicated on the plans referred to , to be done and furnished in a manner correspond- ing with the rest of the work, as well, as truly, as faithfully as though the same were herein paiticu- larly described and specifically provided for. Every part of the building is to be executed under the direction and subject to the approval of the engineer in charge, who shall act as the agent and representative of the engineer and architect, and in all matters or questions relating either to the work or the contract for the same, the decision of the engineer and architect shall be final and conclusive and without appeal. Drainage. Terra cotta drainage of sufficient size to be provided from roof conductors and from water closets, running into the main sewers nearest thereto. Foundations. The foundations are to be set on vertical columns of stone set in the ground, not less than two feet deep, and on a stone two (2) feet square, and from seven (7) to ten (10) inches in thickness (or posts planted in the ground not less than four (4) feet deep. Each post to be set on a piece of plank at the bottom, two (2) feet long, three (3) inches thick, and twelve (12) inches wide. The earth to be well rammed around the posts.) Upon the tops of these columns (or posts) are to set the main sills, upon which rest the main framing and floor joists of the building. The posts are to be not less than ten by ten (10x10) inches section, placed not more than ten (10) feet apart, and the sills are to be ten by ten (10x10) inches section. This timber may be hemlock. Gas Pipe and Fitting. Gas pipe of sufficient size to supply fifty (50) burners to be furnished and laid throughout the building in con- formity to the rules and regulations of the Gas Company, and fitted up with outlets at the option of the engineer in charge. All pipes to be laid so as to be easily got at for re- pairs, and to have such descents as will prevent the accumulation of water arising from condensation. It is understood that the gas fixtures are not to be fur- nished by the party contracting for gas pipe and fitting. Hardware. Entrance doors are to have eight (8) inch rabbeted bronze store door locks. All doors in partitions to have five by three and a. half (5x3^) inch mortise locks. Union Butt Company's cast butts, with loose wrought pins, will be required for all swinging doors. Water closet doors to have rim latch, porcelain knobs, and three (3) inch, half (%} inch round bolt on inside, and coat hook on inside. The furniture of locks to be bronze (or cast iron). Windows to be provided with strong spring bronze sash fasteners and lifts. All swinging or ventilating sash to be provided with a satisfactory apparatus for opening and closing, to be operated from the floor of the building. All swinging on centre to have extra heavy cast transom plates. All general hardware, nails, screws, hinges, etc., neces- sary to complete the work to be furnished as may be re- quired during the progress of the building, and to be of the best American manufacture. Iron Work. All the clamps, ties, tension bars, truss rods, bolts, stirrups, bars, and other iron work, required in the vari- ous parts of the building, to be furnished of the firsl quality wrought iron, and made in the best manner, subject to the approval and directions of the engineer in charge, it being understood by the parries to the CONTRACTS. contract, that such bolts, bars, etc., are to be introduced at the discretion of the said engineer, wherever he may deem it necessary to assure strength to the building. The wrought iron in the tension members of roof trusses over general ticket office must be tough and fibrous, and capable of resisting an ultimate tensile stress of fifty-five thousand (55,000) pounds to the square inch. All the castings required in the execution of the work to be made of good tough iron, true and sound, free from flaws, cracks, bubbles, or defects of any kind. Lumber and Carpenter Work. All the lumber throughout the building, except when particularly specified to the contrary, to be first quality white pine, free from shakes and flaws and unsound knots, and in every way suitable for the various purposes intended. Doors. Outside doors to be in two (2) thicknesses of one and one-half (ij^) inch clear white pine, the outside thickness to be framed and chamfered, and the interior thickness to be diagonal boards, tongued, grooved, and beaded, not exceeding three (3) inches in width, the whole to be well pinned and screwed together, all single doors to be one and a half (1%) inches thick, panelled and moulded on both sides. The water closets to have short slat doors, hung twelve (12) inches above the floors. Finish.. The casing for windows and doors, cornices, porch, lantern, dormer windows, and all general finish to be of first quality white pine, in strict accordance to the elevations, sections, and details. Floors. Floors are tobeof one and a quarter (i^) inch southern yellow pine, not over three (3) inches wide, tongued and grooved, dressed on the upper surface, and secret nailed to the joist. The joist to be of three (3) by six (6) inch hemlock, laid eighteen (18) inches to cen- tres, except on second floor, where they are to be three by twelve (3x12) inches section, laid sixteen (16) inches to centres. Main Walls and Partitions. The main framing of all outside walls is to be white pine dressed. The cor- ner posts are to be eight by eight (8x8) inches, and the intermediate posts four by eight (4x8) inches section, and filled in with three by four (3x4) inch rough hemlock scantling. To be well braced and bridged. Roof. All roof timbers to be of white pine of the sizes, and framed as shown in the drawings, to be dressed and chamfered. The roof sheathing to be of one (i) inch first quality spruce sheathing boards, planed on the upper side to a surface, and not exceeding eight (8) inches in width. The posts of porch to be cased and finished as shown on elevations. Sash. Ail sash to be one and a half (ij^) inches thick : tHose in windows to be double hung on approved axle pulleys : the lantern sash to be hung in centre on tran- som plates, and opened and closed with sections of rods with arms connecting with sash and operated by cords from the floor with wheel on end of shafts. The venti- lator to be opened and closed by cord and pulley ar- ranged as shown on the section. Wainscoting. All the walls and partitions on the inside and outside of building to be wainscoted to the height of the window sills with one (i) inch white pine, tongued, grooved and beaded, and laid vertically inside and diagonally outside with base and cap as per draw- ings. Windows. All windows, except lanterns, to have box frames, fitted with the necessary pulley, styles, etc. All the carpenter mark throughout the building to bo executed according to these specifications and the drawings hereinbefore referred to, and such additional drawings as may hereafter be made in exemplification f the same, and all carpentry not herein mentioned, and which may be necessary for the complete and proper execution of the work, to be faithfully done and furnished. Painting and Glazing. The entire interior and exterior, wood and .ron work, f the building, except interior surface of roof sheathing, to be painted in three (3) coats pure white lead, in best linseed oil, in such tints as may be directed by the engi- neer and architect. The plastered surface of the main ticket office and the exterior of the building to be painted and stencilled as way be directed. The interior surface of roof sheathing to be calsomined in two coats. Tke windows and transom lights throughout to be glazed with best American glass, well bedded, bradded, and left clear and perfect on the completion of the work. Lanterns- to be glazed with dark claret-colored glass. Plastering. The interior of all rooms and the exterior to be well plastered hi two (2) coats sand finish ; ceilings to be finished in the side rooms in hard white coat. The materials to be of the best quality, and the work executed in a good and workmanlike manner. Whatever jobbing and repairing that maybe necessary to render the building perfect before its final acceptance by the engineer and architect, is to be well and truly done, without extra charge. Plumbing. Urinals. Large size corner Bedfordshire porcelain urinal to be placed as shown. To have a three-quarter (J) inch brass supply, and a five-eighths (fi) inch stop* cock, with a cap on top, and a one and a half (i^) inch waste pipe and trap. Washstands. Two washstands to be placed as shown, to have one and one-eighth (iJ4) inch marble counter- sunk top, twelve (12) inch back, and fourteen (14) inch porcelain bowl, with plated cocks, plugs, and chains, and the necessary waste pipe and trap. Everything in connection with the plumbing which may be necessary to a creditable and proper completion of the building to be provided as may be directed by the engineer in charge, and all the work to be done in the best and most substantial manner. Water Closets. Water closets to have Travis regular valve containers, with (our (4) inch cast iron trap to each, connecting by a six (6) inch iron soil pipe with the drainage. Roofing. The roof to be covered with first quality tin (sheet iron, or other material), painted with two coats slate color metallic (or fire-proof) paint. All gutters to be formed in the most approved man- ner, of first quality I C roofing tin well painted with two coats metallic paint, and securely connected to down spouts running into the drainage. The down spouts used to be four (4) inches square, and in sufficient number to insure proper drainage. Spouts to be protected by wooden boxes, extending four (4) feet above the ground. The upper floor on porch to be covered with tin, and painted as above. Sundry Details. Additional Drawings. Additional detail and work- ing drawings will be furnished in exemplification of the foregoing, from time to time, as they may be required ; and it is to be distinctly understood that all such addi- tional drawings shall be of equal force with those which are herein specifically cited ; and the said additional drawings are to be considered as virtually embraced within and forming part of these specifications. Alterations. It is also understood that the engineei and architect of the building shall have the right to make any alterations, additions, or omissions of work or materials herein specified or shown, or in the draw- ings, during the progress of the building, that he may find to be necessary, and the same shall be acceded to by the contractor or contractors, and carried into effect without in any way violating or vitiating the contract. And the value of all such alterations, additions, or omissions shall be agreed upon, in writing, between the said engineer and architect and the contractor, before going into execution, or no allowance will be made for them by either party. Care of Finished Work. Particular care must be taken by the contractor of all the finished work as the building progresses, which work must be covered up and thoroughly protected from injury or defacement during the erection and completion of the building. Removal of Rubbish, etc. All refuse material and rubbish that may accumulate during the progress of the work to be removed, from time to time, as may be directed by the engineer in charge, and on the comple- tion of the work all the grounds must be thoroughly cleaned up, and the surplus material and rubbish carted away. Risks, Blame, etc. The contractor is to assume all risks, and bear any loss occasioned by neglect or acci- dent during the progress of the work, until the same shall have been completed and accepted by the engineer and architect. He is also to assume all blame or loss by reason of neglect of city or district ordinances, or from any other cause. The engineer in charge of the work shall have full power at any time during the progress of CONTRACTS. rue same, to reject any materials he may deem unsuit- able for the purposes for which they are intended, or which are not in strict conformity with the spirit of these specifications. He shall also have the power to cause any inferior or unsafe work to be taken down and altered at the cost of the contractor. Form of Bids. In making bids, parties will state the total sum for the building complete. They will also state the earliest time they can com- mence and complete the building. Contract Building: and Construction. Sewer. ' Articles of agreement made and concluded this day of , A. D. , by and between the C it y of on the first part, and C. D.,of the econd part, witnesseth : That for and in consideration of the payments hereinafter mentioned, to be made by the said party of the first part, the said party of the second part .shall furnish all material and labor, and complete to the satisfaction and acceptance of the chief engineer and surveyor of the city of , all of the excavation, brick-work, filling in, repaving, and such other work as may be requi- site to construct a sewer, upon the line of (line of tkt sewer to be constructed), and complete the same on or before the day of , in accordance with the following SPECIFICATIONS. Said sewer shall be circular in form, and built of brick, with a inch arch and counter arch, and have a clear inside diameter of feet and inches. Excavations. The ground to be excavated in open trenches to the necessary width and depth, and of such lengths, at one time, as shall be directed by the sur- veyor. Such portions of the excavations not required for filling after completion of the brick work, to be hauled off and deposited in such localities as shall not interfere with future regulations of the city. The bottom to be hollowed out to the exact form and size of the lower section of sewer to be laid in it. Adjacent property. Said contractor shall, at his own expense, shore up, sling, protect, alter, divert, restore, and make good, as may be necessary, all water pipes, gas pipes, sewers, drains, buildings, fences, or other properties, which may be disturbed or injured during the progress of the work. Bad ground, running sand, water, etc. Said con- tractor shall, at his own expense, pump out, or other- wise remove any water which may exist in the trenches, and shall form drains or other works necessary for keep- ing the excavations clear of water during the progress of the work. In case of running sand, or other bad or treacherous ground, the work shall be proceeded with night and day without interruption, and the counter shall be laid in a timber cradle, if so directed by said surveyor. The material excavated to be disposed of so as to be as little inconvenience as possible to the public traffic, or adjoining tenants, and, unless sanctioned by said sur- veyor, must not be thrown or deposited to obstruct the sidewalks, or the footway crossings at street intersec- tions ; and there must be at all times a space at least two feet in width, open for public use, and a safe bridge- way over the sewer trench, at least three feet wide, at all street crossings, and the gutters shall also be kept free from surface drainage. The sides of the excavation shall be supported with suitable timber whenever necessary, the contractor to be held responsible for all damage which may happen to 'individuals or to the neighboring properties, from neglect of this precaution. In all cases in which the surveyor shall so direct, timber shoring shall be left and buried i the trench, without extra charge. Material and construction. That said sewer shall be built of good, sound, hard-burnt bricks, uniform in length and size, with arch laid in mortar composed of clean, sharp gravel or sand and fresh-burnt lime, mixed in such proportions as shall be approved by the sur- veyor. The brick work must be well bonded, the joints to be struck flush with face of work, and, unless other- wise directed, the invert will be laid in good mortar or hydraulic cement, and the arch plastered on the outside with good mortar at least one-half inch in thickness. All centring to be furnished by the contractor. All junctions and connections -with drains or fftuert to be made with a cunre in th direction of the current of the sewer, with the largest admissible radius ; to be given by the surveyor. All sewers or drains met with or cut through shall be connected as directed, or if so desired, they shall be perfectly restored to the same condition as before the commencement of the work. The ground shall be carefully filled in and the work backed up in a proper manner as it proceeds, and shall be properly puddled, after the completion of such lengths of the sewer as may be directed. Inlets and man-hole shafts (the latter with nine-inch walls laid in cement) shall be constructed in such posi- tions, and of such forms and dimensions as may b di- rected by the chief engineer and surveyor. Signal lights. That said party of the second part shall properly enclose the said work, and place sign J lights thereon at night. Surfaces disturbed, etc. AH paving, or other sur- face material which may have been disturbed, shall be replaced to the satisfaction and approval of the chief commissioner of highways (or other proper officer, naming him). Tunneling. Any tunneling necessary, to be taken out of sufficient size to admit of requisite timbering, outside the sewer, leaving room for proper keying to in- sure stability : but in no case will tunneling be allowed, unless with the express sanction of the chief engineer and surveyor. GENERAL PROVISIONS, ETC. That said contractor shall be responsible for and psiy all loss or damage, which may arise by reason of the prosecution of the said work ; and in case of the hap- pening of such loss or damage, the amount thereof shall be retained by the party of the first part out of any pay- ment or payments due or to grow due hereunder. That said contractor shall pay the charges of the sur- veyor and regulator of the district for furnishing the lines and levels, as directed in section of an ordi- nance entitled (reciting the title of the ordinance). COMPENSATION. That said party of the second part will perform the work embraced in this contract, in conformity with existing ordinances, and to the satisfaction and accei't- ance of the chief engineer and surveyor ; and also that the city of , through the chief commissioner of highways (or other proper officer, naming hint}, w ill pay in manner hereinafter specified, the following sun) s, and at the following rates : For each and every linear foot of sewer constructed, inclusive of removing and replacing the paving-stones. excavating the material and refilling, dollars ana cents. For each and every linear foot of sewer, two and a half feet diameter, for inlet connection, chargeable under this agreement, dollars and cents. For each and every man-hole, constructed with nine- inch wall, cast-iron curb and grating, and wrought-iron hinged cover, dollars anil cents. For each and every brick and stone inlet, with circu- lar connection two and a half feet in diameter, not ex- ceeding fifteen feet in length, dollars and cents. For each and every cast-iron inlet, and connection not exceeding fifteen feet in length, dollars and cents. That the prices above specified shall be in full com- pensation for all materials and labor required to put the same into the work herein contracted for, and complet* the whole in all respects, as provided in this specifica- tion and contract. Payments. That the payments therefor shall be made by the chief commissioner of highways, upon estimates signed by the chief engineer and surveyor, in assess- ment bills prepared as specified in section II of an ordinance (setting out the title of the same), and war- rants upon the city treasurer, to an amount as author- ized by an ordinance, etc., in payment for the street intersections, man-holes, and legal deductions. All of which payments shall be received as so much cash, and be collected without recourse to said city of , but for the purpose of the better enabling them to collect the same, the name of the said city may be used, and all her legal remedies, whether by bill or otherwise em- ployed. That the work herein contracted for and noted in specifications hall be kept in good order by the party "" t.h second part, for a term of three years after the CONTRACTS. Kite of final estimate therefor, as provided in an ordi- nance (or resolution) approved (or passed), , and that in case of failure to comply with the requirements of this contract, by completing the work according to specification within the time herein specified, there may l>e deducted from, the final estimate, for the use of said city of , the sum of five dollars, as stipulated dam- ;igjs, for each and every day the date of completion and acceptance may exceed the time fixed in this contract. That in case the specifications, which are a part of this contract, or the directions of the chief engineer and Mirveyor, have not been complied with, the said chief engineer and surveyor is hereby authorized to withhold ihe final estimate until the work is prop-rly and satis- factorily completed ; or he shall make such deduction therefrom as, in his judgment, will compensate for, or repair any neglect on the part of the contractor. That no payment will be made, except upon a certifi- cate from the chief engineer and surveyor. In witness, etc. C. D. The City of , By ( Official signature and title.) Executed in presence of ) W. T.,N. S. j Contract Building and Construction. Turnpike Road. This agreement, etc., witnesseth : That A. B. has agreed with C. D., for the sum of dollars, to construct and finish a turnpike road, in width, in a good, substantial, and workmanlike manner, as surveyed and laid out, from to , on or before the day of , next ensuing. Ascent, cuts, fills, grade, etc. That in constructing said road over any hills that may be in said survey or route, said A. B. will cut the same down and fill the valleys between the same, removing all obstructions in such a manner that the ascent of any such hill shall not in any place be greater than four de- grees from the base thereof. That the sides of all cuttings which shall be made through any such hills shall be at an angle of twenty- two and one-half degrees, descending towards and end- ing at the bounds of said road. Bridges, culverts, ditches, sluices, etc. That said A. B. will at every brook, creek, gnlley, ra- vine, and every other place where the same shall be necessary, erect and make gcod and sufficient bridges, culverts and sluices of suitable, solid, and substantial stone work for the passage of all water under the same. That all ditches shall be made in the most efficient and suitable manner, with sufficient outlet, and that whenever said road is over hills that said A. B. will, at the distance of every ten or twelve rods, raise mounds in the road of sufficient height to turn off the water that may fall upon it to the sides thereof, so that said road may not be washed or gullied thereby. Construction, etc. That in constructing said road said A. B. shall proceed as follows : First (state -what) ; second (state what), etc., etc. That he will crown it uniformly in the middle, so that the same shall be raised nine inches from the level thereof. That in soft or spongy ground he will raise it still more, as the situation of the road and circumstances may require. That in finishing snid road where the land is loamy he will, after grading, laying and rolling, etc., deposit and spread atleast six inches ol gravel upon the surface of the same, finishing the same in a compact and uniformly firm surface, ready for use. That in constructing said road over low lands they will raise and construct the same (as hijjh as the highest water mark of the year last pr.st, or) so high that water shall not overflow it at a:iy season of the year, but that said road shall at ::11 times remain dry, so that it may be travelled with ca_;e and safety. That said road shall, upon completion thereof, be free from all obstructions, stones, etc., and its surface uni- form, and travel thereon safe and without annoyance from irregular or obstructed surfaces thereof. Materials. That said A. B. shall take and apply all materials which they may find suitable for building said road, at all places within four rods width of said road as now surveyed and laid out. That all waste and waste materials as shall remain after the completion of said road may be scattered upon the lind contiguous thereto, not exceeding, however, four rods width. That said A. B. shall commence the construction of said road during the present month, and shall complete and finish the same on or before the month of . That it shall be so completed and finished two rods (or feet) within such good, substantial, and work- manlike manner, uniformity, that horses, cattle, car- riages, carts, drays, teams, and vehicles of every de- scription, with customary loads, may, throughout its entire extent, and upon all and every part thereof, pass and travel with ease and safety. That said A. B. shall receive said sum of dollars in payments as follows: (giving terms, times and amounts). In witness, etc. Contract Construction and Interpro* tat ion. Of Previous Contract. This agreement, etc., witnesseth : That a difference has heretofore arisen between the parties to these presents, in relation to their respective rights and obligations under a certain contract bearing date the day of , between them. That said parties thereto have now come to a mutual understanding and agreement respecting all the matters in difference aforesaid, and for the government of themselves under the same henceforward, hereinafter in these presents set forth the same as declaratory of their respective rights and obligations, to wit : 1. That the first paragraph of said agreement is intended to set forth the date of making and parties to said agreement only. 2. That the second paragraph of said agree- ment is intended to, etc., etc. (running thus through the entire agreement). In witness whereof, etc. Contracts-Charter Party. General Charter. This charter party, made and concluded upon in the city of , the day of , in the year of our Lord one thousand eight hundred and , between M. R., of the of , of the burthen of tons, or thereabouts, register measure- ment, now lying in the harbor of , of the first part, and S. R., of the second part, witnesseth: That the party of the first part agrees on the freighting and chartering of the whole of the said vessel (with the exception of the deck, cabin, and ne- cessary room for the crew and storage of provisions, sails, and cables), or sufficient room for the cargo hereinafter mentioned, unto said party of the sec- ond part, for a voyage from P unto , on the terms following : The said vessel shall be tight, staunch, strong, and in every way fitted for such voyage, and receive onboard during the aforesaid voyage the merchandise hereinafter mentioned, and no goods or merchandise shall be laden on board otherwise than from the said party of the second part, or agent. The said party of the sec- ond part doth engage to provide and furnish to the said vessel . And to pay to the said party of the first part, or agent, for the use of said ves- sel during the voyage aforesaid ($ ), . It is agreed that the lay days for loading and dis- charging the vessel shall be as follows, commenc- ing from the time the captain reports himself ready to receive or discharge cargo : . And that for each and every day's detention by default of said party of the second part, or agent, dollars per day, day by day, shall be paid by said party of the second part, or agent, to said party of the first part, or agent. The cargo or cargoes to be received and delivered alongside within reach of vessel's tackles. A commission of percent, upon the gross amount of this charter, payable by the vessel, is due to , upon the signing thereof. To the true'and faithful performance of all and every of the foregoing agreement, we, the said parties, do hereby bind ourselves, our heirs, ex- ecutors, administrators, and assigns, each to the other, in the penal sum of . In witness whereof, we hereunto set our hands, the day and year first above written. M.R. Signed in the presence of I 3. R. W. T..N. S. / CONTRACTS. 239 CERTIFICATE OF COPY We hereby certify this to be a correct copy of the original charter party in our possession. (.'on tract Charter Party. Cuba, or Porto Rico, etc. Charter. This charter party, made and concluded upon in the city of , this day of , in the year of our Lord , between M. R., of the good , of , of the burthen of tons, or thereabouts, register measurement, now lying in the harbor of , of the first part, and S. & R., merchants, . , of the second part, witnesseth : That the said party of the first part agrees on the freighting and chartering of the whole of the said vessel (with the exception of the deck, cabin, , and necessary room for the crew and stowage of provisions, sails and cables), unto the said party of the second part, for a voyage from to one or more ports in the island of , and back to the breakwater for orders to or , on the following terms : The said vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board during the voy- age the merchandise hereinafter mentioned. The said party of the second part doth engage to pro- vide and furnish to the said vessel for the out- ward voyage a full cargo of lawful merchandise, or ballast, , for the homeward voyage a full cargo of sugar, and of molasses in hogsheads, with ten tierces or twenty barrels, either of which at charterer's option, to each 100 hogsheads for under deck, and hogsheads molasses on deck, vessel agreeing to carry out on deck one thousand hoops or fifteen hundred feet lumber to every two hogsheads molasses, , and to pay to the said party of the first part, his or their agent, for the use of the said vessel during the voyage afore- said, as follows: Fir outward cargo, nothing in consideration of charterer paying all foreign port charges, including lighterage, pilotage, consul fees for deposit of ship's papers, and furnishing cargo or ballast to change ports . For home- ward cargo, cents per 100 Ibs. net custom house weight delivered for sugar under deck, and or per no gallons gross custom house gauge of casks of molasses delivered under deck, , and for the deck load per no gallons gross custom house gauge of casks of molasses deliv- ered, freight payable in , without dis- count, or commission on proper delivery of home- ward cargo. It is agreed, that running lay days shall be allowed for loading and discharging the vessel in , commencing from the time the vessel is ready to receive and discharge cargo, and the captain reports himself to be so prepared, hours shall be allowed the party of second part to hand the captain orders at .commencing from the time the captain goes on shore to com- municate his arrival. And for each and every day's detention, by default of the said party of the second part, or their agent, dollars per day, day by day, shall be paid by the party of sec- ond part, or thoir agent, to the party of the first part, or his or their agent. The cargo or cargoes to be received and deliv- ered according to the customs and usages of the respective ports, alongside within reach of ves- sel's tackles. Lumber to be rafted to the water's edge by captain, if required. Time used in changing ports in to count in lay days. Vessel to haul to wharf designated by charter- ers to load and discharge in the United States, and to employ their stevedore at customary rates. Charterers agree to advance captain in foreign ports not exceeding dollars, if actually re- quired by him for ship's disbursements, on ac- count of this charter, free of commission or insurance. Captain to sign bills of lading as required by charterers or their agents, without prejudice to this charter party. To the true and faithful performance of this charter, we, the said parties, do hereby bind our heirs, executors, administrators, and assigns, each to the other, in the penal sum of estimated amount of charter. In witness whereof, we hereunto set our hands the day and year first above written. M. R., Master. S. &R., Merchants. Signed in the presence of ) W. T..N. S. ; CERTIFICATE OF COPY. We hereby certify the foregoing to be a true and correct copy of the original stamped charter of , now on file at our otiicc. Place , Date . S. & R. Contract ('barter Party. The direct Port Form of Charter, as approved by the Philadelphia Maritime Exchange. This charter party, made and concluded upon in the city of , the day of , in the year of our Lord, , between M. R., master and agent for the owners of the , of , built , at , of tons, or thereabouts, register measurement, now lying in the harbor of , , and guaranteed to class , at , of the first part, and S. R., of the second part, wit- nesseth : That the said party of the first part agrees on the freighting and chartering of the whole of the said vessel (with the exception of the deck, cabin, and necessary room for the crew, and storage of provisions, sails, and cables), for the cargo hereinafter men- tioned, unto said party of the second part, for a voyage from , to discharge at a safe port (where vessel can lie afloat), say to , on the terms following : The said vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board the merchandise hereinafter mentioned. The said party of the second part doth engage to provide and furnish to the said vessel a full and complete cargo of wheat and (or) Indian corn, say as much as she can reasonably stow and carry on the draft of water allowed by the surveyors appointed by the Board ol Ma- rine Underwriters, under whose inspection the vessel is to load ; and, furthermore, it is hereby agreed that the vessel shall prepare for bulk and (or) bag grain, at her expense, according to the rules and regulations of the Board of Marine Underwriters, and shall furnish from them to charterers a certificate of proper lading before clearing at the customhouse; and it is further- more agreed that the party of the second part shall pay to the said party of the first part, or his agent, for the use of the said vessel during the voyage aforesaid, ( ) shillings and ( ) pence British sterling, per quarter of 480 pounds delivered . Freight, payable on right delivery of cargo, if dis- charged in the united kingdom, in cash in British sterling, if discharged on the continent, as above, by goodand approved bankers' sight bills on London, with- out discount or allowance ; and it is further agreed that the freight as per bills of lading, shall be taken without deduction in payment of this charter, any deficiency to be paid here by the charterers, in cash, less insurance, and any surplus over and above estimated charter to be settled here before vessel clears at the custom house by captain's draft in charterer's favor upon consignee, payable ten days after arrival of vessel at port ol dis- charge. The master to call at broker's office as re- quested to sign bills of lading as presented, without prejudice to this charter party. It is further agreed that ( ) running lay days, to commence when the vessel is all ready and prepared to load bulk grain, and written notice thereof given to charterers, shall be allowed for loading the vessel at , and discharging (days expended at to be in- dorsed on bills of lading). And 'f the vessel be longer detained, charterers to pay demurrage at the rate of ( ) pounds British sterling or its equivalent per day, payable day by day, to the party of the first part, or authorized agent; Provided, such detention shall hap- pen by default of the said party of the second part or their agent. Vessel to employ charterer's stevedore at the usual customary rates for such labor, and to load at such elevator, elevators, wharf, or wharves as may be designated by the charterers, who are to pay the ordi- nary expense of towage after the first move. Cargo to be received and delivered alongside within reach of vessel's tackles. Lighterage, if any, at expense and risk of cargo. The charterer's responsibility under this charter to cease upon shipment of the cargo, but the vessel to have a lien thereon for all freight, dead freight, 16 240 CONTRACTS. demurrage, or average. Vessel is likewise to discharge in such dock or at such wharf, as may be specified by consignees, on arrival, provided no extra detention or expense is thereby incurred by the vessel. A commission of five per cent, on the amount of this charter is due and payable by vessel and owners upon signing hereof, vessel lost or not lost, to , whose agents ai port of destination are to attend to ship's business on customary terms. Funds, for ordinary expenses of vessel, if desired by master, to be advanced by charterers at port of loading, subject to commission and insurance only. To the true and faithful performance of all and every of the foregoing agreements, we, the said parties, do hereby bind ourselves, our heirs, exec- utors, administrators, and assigns, each to the ther, in the penal sum of estimated amount of freight. In witness whereof, we have hereunto set our hands the day and year first above written. M. R. Signed in the presence of ) S. R. W. T., N. S. / Contract Charter Party. Mediterranean Out and Home Charter. This charter party, made and concluded upon in the city of , this day of , A. D. , between M. R., of the good and coppered , called the , of , of the register measure- ment of tons, or thereabouts, and guaranteed to carry tons dead weight of 2,240 Ibs., classed , Lloyds, now lying in the harbor of , of the first part, and S. R., of the second part, wit- nesseth : That the said party of the first part agree on the freighting and chartering of the whole of the said vessel, including poop (with tho exception of the cabin and necessary room for the crew and stowage of provisions, sails, and cables), unto the said party of the second part, for a voyage from New York, Philadelphia, or Baltimore, at charterer's option, to for discharging outward cargo . And thence for return cargo back, from another port as above, to either New York, Philadelphia, Bos- ton, Baltimore, or a port in the united kingdom, at charterer's option. AU ports east of the west coast of Italy are excluded. Ports of loading and discharging to be named on signing bills of lading for the respective cargoes. If home cargo is fruit and (or} other merchandise from Sicily, charterer has the privilege of using a second port there, but the time used for changing ports to count as lay days. Vessel to call at Gibraltar for orders, if required, for outward cargo only, allowing 48 hours for waiting for orders there ; on the terms following : The said vessel shall be tight, staunch, strong, and every way fitted for such a voyage, and re- ceive on board during the voyage aforesaid the merchandise hereinafter mentioned, and no goods or merchandise shall be laden on board otherwise than from the said party of the second part, or agent. The said party of the second part doth engage to provide and furnish to the said vessel a full and complete cargo of such lawful merchandise, as the charterers may require, for the voyage out and. home, including petroleum and (or) its pro- ducts, and marble in blocks, the latter, if any shipped, not to be more than about tons of twenty-five cubic Genoese palms each, customary mercantile Carrara measurement. If any piece of marble exceeds five tons, all extra expense for loading and discharging same to be paid by the party of the second part. And to pay to the said party of the first part, or agent, for the use of the said vessel during the voyage aforesaid, the sum of in full for the round voyage, both out and home, of which , or its equivalent, is payable upon correct delivery of the outward cargo at port of discharge in the Mediterranean, and balance of amount of this charter, or its equivalent, to be paid upon correct delivery of the homeward cargo at the port of discharge. Vessel to consign to charterer's friends at port of loading and discharge, paying one commission of two per cent, only on amount of this charter, payable at port of loading or discharge, at char- terer's option. Captain to sign bills of lading as presented, without prejudice to this charter party, and differ- ence, if any, between the amount of bills of lading for the outward freight and the amount due vessel on the same is to be settled here in cash ; if in captain's favor, before vessel sails ; or if in charterer's favor, by captain's draft, due ten days after arrival of vessel at port of dis- charge ; the rate of exchange and gold for out- ward freight to be taken at rates ruling at New York on the day of vessel's clearing at the custom house. After leaving Gibraltar on homeward passage vessel to proceed to the northward of the West- ern Islands, and keep north of that latitude dur- ing homeward passage, unless absolutely forced south by stress of weather, in which case vessel's logbook shall furnish evidence of that fact. Charterers have the privilege of constructing ven- tilators over vessel's hatchway, at their own expense, and the master to keep the same open and hatches off in all weather that will not en- danger vessel's safety ; and the vessel is to be cleaned as customary previous to loading such homeward cargo. In case of head winds on ar- rival at Gibraltar with homeward cargo vessel to tow through the straits, charterer paying ha'f towage. The master to employ charterer's stevedore in loading the vessel, at the usual rates. Vessel to haul once for loading and discharging to custom- ary loading and discharging berth, as ordered by charterer or agent ; and for any subsequent haul- ing charterer to pay the towage. If outward cargo is petroleum, vessel to load under inspection as to stowage of the authorized inspectors appointed by the charterer, free of charge to the vessel for such inspection. For loading at port in the United States and foreign ports it is agreed running lay days shall be allowed, commencing from the time the vessel is ready, and written notice thereof to be given by the master twenty-four hours before the time to count, and customary despatch for dis- charging vessel and homeward cargo. Demur- rage over and above the said laying days at per day, provided the detention shall happen by default of charterer or agent. Charterer has the privilege of re-chartering the vessel, and captain to sign any such re-charter, if required, without prejudice to this charter party. The cargo is to be received and delivered as customary at the respective ports of loading and discharging, within reach of vessel's tackles. Dangers of the seas and navigation of every nature and kind always mutually excepted. Penalty for non-performance of this agreement amount of charter. A commission of per cent, upon the gross amount of this charter is due and payable by the vessel to , upon signing hereof. In witness, we hereunto set our hands, the day and year first above written. M. R. Signed in the presence of ) S. R. W. T., N. S. / Contract Charter Party. Charter for Orders, as approved by the Philadelphia Maritime Exchange. This charter party, made and concluded upon in the city of P , the day of , in the year of our Lord, , between M. R., master and agent for the owners of the , of , built , at , of tons, or thereabouts, register meas- urement, now lying in the harbor of , and guaranteed to class , at , of the first part, and S. R., of the second part, witnesseth : That the said party of the first part agrees on the freighting and chartering of the whole of the said vessel (with the exception of the deck, cabin, and necessary room for the crew, and storage of provisions, sails, and cables', for the cargo hereinafter men- tioned, unto said party of the second part, for a voyage from Philadelphia to Queenstown, Fal- rnouth, or Plymouth for orders (which are to be given witkin forty-eight (48) hours after arrival of vessel CONTRACTS. At port of call or lay days to count), to discharge at a safe port (where vessel can lie afloat), in the united kingdom, or on the continent, between Havre and Hamburg (both included), or to a direct port within the above limits, if named before vessel sails from Philadelphia, on the terms follow- ing: The said vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board the merchandise hereinafter mentioned. The said party of the second part doth engage to provide and furnish to the said vessel a full and complete cargo of wheat and (or) Indian corn, say as much as she can reasonably stow and carry on the draft of water allowed by the surveyors appointed by the P Board of Ma- rine Underwriters, under whose inspection the vessel is to load ; and, furthermore, it is hereby agreed that the vessel shall prepare for bulk and (or) bag grain, at her expense, according to the rules and regulations of the P Board of Marine Underwriters, and shall furnish from them to charterers a certificate of proper lading before clearing at the customhouse; and it is further- more agreed that the party of the second part shall pay to the said party of the first part, or his agent, for the use of the said vessel during the voyage aforesaid, if ordered from Queenstown, Falmouth, or Plymouth, to discharge at a port in the united kingdom, ( ) shillings and ( ) pence British sterling, per quarter of 480 pounds delivered : if ordered from Queens- town, Falmouth, or Plymouth, to discharge at a port on the continent as above, ten per cent, additional to be paid per quarter of 480 pounds delivered ; if ordered to a direct port before vessel sails from P , or if dis- charged at port of call, oral Cork, should vessel have called at Queenstown, a deduction of ( ) pence British sterling per quarter of 480 pounds, to be made from the rate the vessel would have received if ordered to that port via Queenstown, Falmouth, or Plymouth. Freight, payable on right delivery of cargo, if dis- charged in the united kingdom, in cash in British ster- ling, if discharged on the continent, as above, by good and approved bankers' sight bills on London, without discount or allowance ; and it is further agreed that the freight as per bills of lading shall be taken without de- duction in payment of this charter, any deficiency to be paid here by the charterers, in cash, less insurance, and any surplus over and above estimated charter to be settled here before vessel clears at the custom house by captain's draft in charterer's favor upon consignee, pay- able ten days after arrival of vessel at port of discharge. The master to call at brokers' office as requested to sign bills of lading as presented, without prejudice to this charter party. It is further agreed that ( ) running lay days, to commence when the vessel is all ready and prepared to load bulk grain, and written notice thereof given to charterers, shall be allowed for loading the vessel at P , waiting orders at port of call (after expi- ration of 48 hours as above), and discharging (days ex- pended at P , to be indorsed on bills of lading). And if the vessel be longer detained, charterers to pay demurrage at the rate of ( ) pounds British sterling or its equivalent per day, payable day by day, to the party of the first part, or authorized agent ; Pro- vided, such detention shall happen by default of the said party of the second part or their agent. Vessel to employ charterer's stevedore at the usual customary rates for such labor, and to load at such elevator, eleva- tors, wharf or wharves as may be designated by the charterers, who are to pay the ordinary expense of towage after the first move. Cargo to be received and delivered alongside within reach of vessel's tackles. Lighterage, if any, at expense and risk of cargo. The charterer's responsibilty under this charter to cease upon shipment of the cargo, but the vessel to have a lien thereon for all freight, dead freight, demurrage or average. Vessel is likewise to discharge in such dock or at such wharf, as may be specified by consignees, on arrival, provided no extra detention or expense is there- by incurred by the vessel. A commission of five per cent, on the amount of this charter is due and payable by vessel and owners upon signing hereof, vessel lost or not lost, to , whose agents at port of destination are to attend to ship's business on customary terms. Funds, for ordinary expenses of vessel, if desired by master, to be advanced by charterers at port of loading, subject to commission and insurance only. Te the true and faithful performance of all and every of the foregoing agreements, we, the said parties, do hereby bind ourselves, our heirs, ex- ecutors, administrators, and assigns, each to the other, in the penal sum of estimated amount of freight. In witness whereof, we have hereunto set our hands, the day and year first above written. M. R. Signed in the presence of ) S. R. w. T..N. s. ; Contract Charter Party. Petroleum Charter, as approved by the Philadelphia Maritime Exchange. This charter party, made and concluded upoa in the city of P ,the day of ,in the year of our Lord , between M. R., master and agent for the owners of the of , built , at ,of tons, or thereabouts, register meas- urement, now lying in the harbor of , and guaranteed to class at of the first part, and S. R., of the second part, witnesseth : That the said party of the first part agrees on the freighting and chartering of the whole of the said vessel (with the exception of the deck, cabin, and necessary room for the crew, and storage of provisions, sails, and cables), for the cargo hereinafter men- tioned, unto said party of the second part, for a voyage from , to discharge at a safe port, where a vessel can lie afloat, say to , on the terms following : The said vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board the merchandise hereinafter mentioned. The said party of the second part doth engage to provide and furnish to the said vessel, a full and complete cargo of petroleum, in customary barrels, . And it is furthermore agreed that the party of the second part shall pay to the said party of the first part, or his agent, for the use of said vessel during the voyage aforesaid, ( ) shillings and ( ) pence for each and every forty (40) gallons, gross American gauge of bar- rels, with five per cent, primage thereon, per barrel de- livered, whether full, part full, or empty, etc. Freight, payable on right delivery of cargo, if dis- charged in the United Kingdom, in cash in British sterling: if discharged on the continent, by good and approved bankers' sight bills on London, without dis- count or allowance ; and it is further agreed that the freight, as per bills of lading, shall be taken without de- duction in payment of this charter, any deficiency to be paid here by the charterers, in cash, less insurance, and any surplus over and above estimated charter to be set- tled here before vessel clears at the custom house by captain's draft in charterer's favor upon consignee, pay- able ten days after arrival of vessel at port of discharge. The master to call at broker's office, as requested, to sign bills of lading as presented, without prejudice to this charter party. It is further agreed that ( ) running lay days, to commence when the vessel is all ready and prepared to receive cargo at wharf designated by charterers, and written notice given them of same, shall be allowed for loading the vessel at P , and customary despatch to be allowed for discharging cargo at port of dis- charge. And if the vessel be longer detained, charterers to pay demurrage at the rate of ( ) pounds Brit- ish sterling, or its equivalent, per day, payable day by day, to the party of the first part, or authorized agent. Provided, such detention shall happen by default of the said party of the second part, or their agent. Vessel to load under inspection, as to stowage, of the authorized inspectors appointed by charterers free of charge to the vessel for said inspection, to employ charterers' steve- dore at the usual customary rates for such labor, and to load at such wharf or wharves on the or rivers, where she can lie afloat, as may be designated by the charterers, and if required to move mote than once charterers to pay the ordinary expense of towage. Cargo is to be received and delivered along- side within reach of vessel's tackles. Lighterage, if any, at expense and risk of cargo. The charterers' responsi- bility under this charter to cease upon shipment of the cargo, but the vessel to have a lien thereon for all freight, dead freight, demurrage or average. Vessel is likewise to discharge in such dock, or at such wharf as may be specified by consignees, on arrival provided no extra detention or expense is thereby incurred by the vessel. A commission of five per cent, on the amount of this 242 CONTRACTS. charter is due and payable by vessel and owners upon signing hereof, vessel lost or not lost, to , whose agents at port of destination are to attend to ship's busi- ness on customary terms. Funds, for ordinary expenses of vessel, if desired by master, to.be advanced by charterers at port of loading, subject to commission and insurance only. To the true and faithful performance of all and every of the foregoing agreements, we, the said parties, do hereby bind ourselves, our heirs, ex- ecutors, administrators, and assigns, each to the other, in the penal sum of estimated amount of freight. In witness whereof, we have hereunto set our hands the day and year first above written. M. R. Signed in the presence of ) S. R. W. T..N. S. } STOWAGE CERTIFICATE FOR PETROLEUM LADEN VESSELS. Issued by the Board of Surveyors and Inspectors ap- pointed by the Philadelphia Board of Marine Under- writers, and approved by the Board of New York Underwriters, Vereitt Bremer See-Versicherungs- Gtss:llschaften, and the Philadelphia agents of the London Lloyds' Liverpool, and Finland Underwriters. SURVEYOR'S OFFICE. This may rertify, that we have surveyed for Messrs. -. the stowage of the cargo, consist- ing of -, of the tons register, bound from to . This vessel was well and sufficiently ballasted, and there was ample dunnage, boards, and planks, of the proper descriptions, used in the stowage of the cargo. The vessel now draws feet -^ inches of water, is not overloaded, and, in our opinion, is in a seaworthy condi- tion. Approved by the Board of Marine Surveyors. C. C., Clerk. S. R., Surveyor. PETROLEUM BILL OP LADING. Shipped in good order and condition, by , on board the , called the , whereof M. R. is master for this present voyage, and now lying in the port of , and bound for , which are marked and numbered as per margin, and are to be delivered in like good order and condition at the aforesaid port of , gallons (the dangers of the seas, fire, and collision only excepted), unto , or to assigns, he or they paying freight upon the said merchandise, at the rate of shillings pence per forty gallons, gross gauge of barrels delivered, with five per cent, primage and average accustomed, and all other conditions as per charter party dated . In witness whereof, the master or purser of the said vessel hath affirmed to two bills of lading, all of this tenor and date, one of which being ac- complished, the rest to stand void. Dated in , this day of , A. D. . Gauge and contents unknown ; not accountable for leakage or breakage. Freight payable on barrels or cases delivered full, part full, or empty. If cases be shipped, vessel not to be accountable foi rust. Contract Charter Party. For Timber to Gulf Ports. Place , Date . It is this day mutually agreed between M. R., master of the good ship or vessel called the V., of the measurement of tons, or thereabouts, now , and S. & R., merchants : That the said ship being tight, staunch, and strong, and every way fitted for the voyage, shall, with all convenient speed, sail and proceed to , and there load, from the factors of the said merchants or agents at such safe anchorage as they may direct, a full and complete cargo of square pitch pine timbers, or and deals, at mer- chants' option. Merchants to supply suitable timber or and planks for beam filling and broken stowage, at their option. Deck load, if required by the captain, to be supplied at full freight. No timber or deals to be cut without the written permission of the shippers, and the stevedore to be approved of by them. The cargo to be deliv- ered alongside at merchants' risk and expense, and to be received by the master and secured with the ship's dogs and chains when so delivered, and to be then at ship's risk. Should the master order more timber alongside than the ship can carry, the expense of towing it back to the booms to be paid by the ship. The ship to discharge each lighter having lumber for cargo or broken stowage, without unreasonable detention, and to give charterer's agents written notice three clear days before broken stowage is required, not ex- ceeding what she can reasonably stow and carry, over and above her tackle, apparel, provisions and furniture ; and being so loaded, shall therewith proceed to (.state where), or so near thereunto as she may safely get, and deliver the same on being paid freight as follows : For timber per load of 50 cubic feet calliper measure as cus- tomary at port of dis- charge. For deals per St. Petersburg stand- ard hundred. 165 cubic feet. All timber or and deals used for stowage and beam filling to pay two-thirds freight. (The act of God, public enemies, fire, and all and every other danger and accidents of the seas, rivers, and navigation of whatever nature and kind soever, during the said voyage, always excepted.) Freight to be paid as follows : One-third in cash on unloading and right delivery of cargo, and the remainder by good and approved bill, payable in London at four months' date follow- ing, or in cash, less two per cent., at merchants' option. Cash for ships, ordinary disbursements, at port of loading to be advanced by charterer's agents at current rate of exchange, subject to cost of in- surance and the customary two and a half per cent, commission, and to be deducted from first payment of freight. For any money advanced to the master, he shall give a receipt on the bill of lading, and the charterers shall in no way be responsible for the appropriation of such advances. working days are to be allowed the mer- chants (if the ship be not sooner despatched^, for fur- nishing cargo, and said cargo to be unloaded as customary at port of discharge, and ten days on demurrage over and above the said lay days, at pounds per day. Vessels to be addressed to , or their agents, at port of loading, paying them two and a half per cent, commission on gross freight for doing the ship's business. This charter being concluded by , on behalf of another party, it is agreed that their liability shall cease as soon as the cargo is shipped, and the names of their principals given up. Penalty for non-performance of this agreement, estimated amount of freight. It is understood that the vessel insures at the regular rates on cargo, or is chargeable with the difference. Captain is not permitted to take any timber or deals on board beside the cargo, except on written permission of the shippers. A commission of five per cent, is due by ship on signing this charter. M. R., Master. (Witness.) S. & R., Merchants. Contract Copyright Matter. General Form. See title ASSIGNMENTS, ante. This agreement, made this day of , be- tween A. B. (of , author) and C. D. (of , pub- lisher), witnesseth : That said A. B. shall, on or before the day of .complete (or compile' 1 and furnish to said C. D. the copy for a work to be entitled . That said A. B. shall copyright said work in his own name. That said C. D. shall, on or before the day of , publish said work, and have the same ready for sale. That said C. D. shall sell said work, paying said A. B. the sum of per cent, per copy for all CONTRACTS. 243 copies thereof sold, as follows : (stating the terms tnd times of payment). That this agreement shall continue during the term allowed by law for the existence of a copy- right, and the renewal thereof. In witness, etc. VARIOUS STIPULATIONS, ETC. Advancements and reimbursement. That said C. D. shall, in the meantime, advance said A. B. the following sums (giving amounts and pay- ments}, and no more. Or, That said C. D. shall, from to time, during the completion of said manuscript, advance said A. B. such sums of money, the aggregate of which shall not ex- ceed dollars, as follows : That said C. D. shall reimburse himself from the first proceeds of the sale of said work, and failing with rea- sonable diligence so to do within from the publica- tion thereof, shall, etc. (as the parlies agree). Accounting. That said C. D. shall, at the date of each payment, t the same time give unto said A. B. a statement of the amount of sales during the time between the same and the last payment. That said C. D. shall, on the day of , in each year, render unto said A. B. his full account of all sales of said for the year last past, and at all other times when by said A. B., in writing, demanded. Advertisements. That pages of said work shall, if necessary, be devoted to the advertisement of the interests of (state what) only, at the rate of dollars per page. That said advertisements shall be canvassed for and solicited by . That said A. B. shall receive per cent., and said C. D. per cent, of the proceeds of said advertise- ments. That dollars shall be annually spent by said C. D. in advertising said work. Arbitration, etc. That all and every controversy, demand, dispute, and difference which shall hereafter arise, affecting or con- cerning the construction, or any portion or stipulation in this agreement contained, the quantity or quality of the subject-matter therein contained, the time or man- ner of any payment or payments, or the performance or non-performance of any stipulations therein contained : then and in such case the same shall be submitted and referred to (two credible persons, one to be chosen by each of said parties, they being authorized to select a third) any person said parties may agree upon, whose award (or the award of a majority of which) shall be binding and final. Assignment. That said A. B. will, after a sale of copies of said work, assign, transfer, and set over all his title and in- terest in and rights under this agreement and said work as required by law to said C. D., for the further consid- eration of dollars, payable as follows (stating terms and times of payment) : or That said C. D. will, after a sale of copies of said work, assign, transfer, and set over to said A. B. all his title and interest in, and rights under this agreement and said work, together with all the electrotype and stereo- type plates, cuts, and illustrations, and all and every matter and material necessary thereto or connected therewith, for the sum of dollars, payable as fol- lows (stating time and manner, etc.) Copyright. That said A. B. shall copyright said work in his own name as author and proprietor, and at his own expense. That said C D. shall copyright said work in his own name as publisher and proprietor, and at his own ex- pense. Cuts and Illustrations. That said A. B. shall provide subjects, together with their appropriate illustrations for said work. That said C. D. shall procure at the hands of compe- tent and efficient engravers the execution of said illus- trations in a purely artistic and workmanlike manner, subject to the approval of and . Material and Finish. That said work shall be printed on (state the grade, kind, and tint of paper), weighing pounds to the 'earn. That the same shall be bound in the following styles giving kinds, color, etc., etc., of binding). That said binding shall be ornamented and finished as follows : , etc. Numbering. That all books published shall be regularly numbered by a numbering machine as soon as bound and before delivery for sale or stock. Payments. That the payment of said shall be as follows (stating the terms of each payment, the amount of each payment, and the time of each payment). Plates. That said work shall be executed in electrotype or stereotype) plates, cast, formed, made, modelled, and molded after the manner known as the system, and in the best and most substantial manner. That said plates shall be included in the terms of thi assignment in this agreement provided for. That said plates, if taken and sold under execution at any time hereafter, shall not carry with them any right now or hereafter to be vested in said C. D. by virtue of this agreement or otherwise. Presentation Copies. That said A. B. shall receive for presentation copies of said work free of all costs and charges for the same. That said C. D. shall receive for presentation copies of said work free of all costs and charges for copyright fee of the same. Publication. That the copy for said work shall be ready for publi- cation on or before the day of . That said work shall be published on or before the day of . That the right to publish and vend said work shall rest solely and only in said C. D., and shall not be trans- ferable by any act soever, whether of said C. D. or by operation of law, and he shall be wholly and utterly in- capable to transfer the same, by any act whatever ; and should said C. D. at any time become incapable of exer- cising said right the same shall thereupon lapse to and vest solely in said A. B. and his legal representatives ; or, That the right to publish and vend said work s>hall vest in the said C. D. and his legal representatives dur- ing the full term of the copyright thereof, and its renewal, if made. Royalty Amount and Payments. That said A. B. shall, in the manner and times afo.'e- said, receive a royalty of per cent, (on the re.ail selling price) of every copy of said work published and sold. That said royalties shall be payable on the fir^r day of each month (or payable on the first days of Jai.viary, April, July, and November) of each year. That said A. B. shall receive a sum equal to the pro- portion of pages should the same be less than the num- ber herein agreed upon, but no greater amount than that already agreed upon shall be paid if the number of page* exceed that herein agreed upon. Another Form. That said A. B. shall receive the following royalties : per cent. Cof the retail selling price) of the first thousand sold. per cent, (of the retail selling price) of the thousand sold. per cent, (of the retail selling price) of all copies thereafter sold. That said royalties shall be payable, etc., as above. Sales. That said C. D. (or A. B.) hereby guarantee? a sale of at least thousand copies of said work during the first year. That the succeeding years the sales thereof shall nt be less than thousand copies per year. That failing the above sales said C. D. shall forfeit aH rights by, in, and under this agreement. That the amount of sales shall be in aU cases verified by affidavit in the accountings herein stipulated to be made, and failing this, shall at all events once ill each year be so made. Shape and Size. That said work, exclusive of contents and index, shall contain (or not exceed ) pages. That said work shall be in shape and size the same ai that of a book entitled , published by , of That said work shall be in proportion, as follow*; length , breadth , 244 CONTRACTS. Territory Reserved. That the following territory shall be reserved to the author's own disposition and use (describing it). Time of Author. That in the meantime he shall devote hours of the part of the day to the work aforesaid ex- clusively, and in nowise allow any matter to interfere with this portion of his agreement. Title, Title-page, and Description. That the title of said work shall be in the words and figures as follows, viz.: That the same may be altered, abandoned, modified, or substituted at any time before publication upon the mutual consent of said parties : or That no change or modification of any character whatever shall be made in the above-named title-page. Type. That said work shall be set in such type only as said parties shall mutually agree upon ; or That said work shall be set in such type only as said A. B. (or C. D.) shall agree upon ; or That said work shall be set in the type and style as follows (giving the same minutely). Warranty, etc. That said A. B. warrants said copy free from all and every liability from piracy, or otherwise, or in any way subject to any penalty, liability, or forfeiture under the laws relating to copyrights. That said A. B. shall be liable to the extent of all penalties, liabilities, and forfeitures incurred through his arelessness in this behalf, or anywise in the premises, or throughout said entire work. *oiitraet Copyright Matter. General Form. See title ASSIGNMENT, ante. This agreement, made this day of , A. D. , between A. B., of , and C. D., of , witnesseth : That A. B., for the consideration hereinafter mentioned, shall prepare a (naming the subject], to comprise volumes (or parts, etc.), which he shall complete for press as rapidly as practicable y>r on or before the day of ). That the copyright of said work shall be se- cured by and in the name of (as author and proprietor, or proprietor). That said C. D. shall publish, republish, and vend said . That said C. D. shall give said A. B. for presen- tation of said work. That said C. D. shall pay said A. B. for said work as follows: . In witness whereof, said parties have hereunto et their hands this day of , A. D. . A. B. C. D. Contract Copyright Blatter. General Form. See title ASSIGNMENT, ante. This agreement, etc., witnesseth : That A. B. shall, on or before the day of , furnish C. D. copy for a work entitled (giving the title of the work). That A. B. shall copyright the same in his own name. That C. D. shall, on or before the day of , publish the same (in the style to be agreed upon), and thereafter sell the same by subscrip- tion, paying A. B. per cent, of the subscrip- tion price therefor as the same is sold by him. That the title-page of said work may at any time before publication be changed as assent of parties and circumstances require. That after the expiration of (or after the sale of copies of said work) C. D. shall sell at least copies each succeeding year, or make up such deficiency at the expiration thereof, or in lieu thereof turn over all plates and release all title and interest in and rights under this agree- ment to said A. B. (Signed) A. B. In witness, etc. C. D. Contract Copyright Blatter. Publication upon yoint Account. This agreement, etc., witnesseth : That said A. B. is proprietor of the following wrks, vt. (describing them). That said C. D. shall become publisher of said works. That the cost of manufacturing said works shall be made up by said A. B. by charging the printing plates, book and plate paper at first cost, the press work at cents per token, and the collecting and delivery at the usual cost. That said works shall be delivered to C. D. in sheets to be folded and bound at cost price, and at his own cost and expense for materials and labor. That said books shall be put up in the same style and quality, and uniform with the volumes of , formerly published by said A. B., a copy of which is herewith submitted. That the expense of circulars and advertising said series of works shall be divided between said parties and limited to such an amount as may hereafter be agreed to. An accurate account of which expense shall be kept and rendered on the days of in each year. That all copies of each new volume, not ex- ceeding , given or presented for editorial pur- poses, shall be charged at cost as an item of ad- vertising, and the amount thereof equally borne by said parties. An accurate account of which, and to whom given or presented, shall be kept and rendered at the time of accounting aforesaid. That the profits of each volume shall be equally divided between said parties. That said profit shall consist of the difference between the actual cost of manufacturing each volume and the wholesale price of the same, which shall be per copy. That said C. D. shall sell said works at said wholesale price, saving only small lots of in number when the actual profits thereon shall be equally divided. An accurate account of all which, and to whom sold shall be kept, shall be truly kept and rendered at the time of accounting aforesaid. That this agreement shall be in full force and binding for a term of five years from this date, and thereafter until one of said parties shall give to the other six months notice, in writing, signi- fying his wish to annul the same. That in case no satisfactory arrangement can be made for the settlement of each party's inter- est an arbitrator shall be chosen by each party, and by said two chosen another shall be selected, the decision of whom or any two of them, in writing, shall be final, binding, and conclusive. In witness, etc. Contract Employment. Attorney and Clerk. See title APPRENTICESHIP, ante. Articles of agreement made and entered into this day of , A. D. , by and between A. B., of , attorney, and C. D., of , farmer (and I. D., his son), witnesseth : That I. D. shall faithfully serve said A. B. as his clerk for the space of years, from the day of . received oy mm or committed to nis care, or knowingly permit or suffer the same to be done. That he shall not disclose or make known any secrets of his master or his master's clients, or any matter relating to his master's business or to his prejudice. That he shall not absent himself from his mas. ter's service during said term without his con- sent, and that he shall in all things be faithful and true to his said master. That said C. D. shall pay said A. B. the sum of five hundred dollars upon the (signing of this agree- ment) day of (or, at follows). That said C. D. shall clothe and bear all ex- penses incident to ill-health of said I. D. That said A. B., in consideration thereof, shall during said term instruct said I. D. in the profes- sion of law and practice of an attorney in the court, etc., and in the meantime provide him with good and sufficient food and lodging, and allow him a year for washing his linens (and his income as notary). CONTRACTS. 245 It is further covenanted and agreed that in case said A. B. or I. D. dies within the first year of said term, then said A. B. , or his legal represen- tatives, shall repay to said C. D. the sum of four hundred dollars. And if either should die during the second year, then said A. B., or his legal rep- resentatives, shall repay said C. D. the sum of three hundred dollars, etc In witness whereof, said parties have hereunto set their hands (and seals) the day and year first above written. (Signed) A. B. f Witness.} C. D. I. D. Con tract Employ ment. Book-Keeper and Merchant. This agreement, etc., witnesseth : That said A. B. will, during a term of years "rotn date hereof, dwell with, faithfully, per- fectly, and truly keep the books and accounts of, and diligently serve said C. D. That said A. B. will perform the reasonable di- rections of said C. D.,and from time to time, during said term, upon request, make and deliver him a complete and perfect account, in writing, of all money received and paid out, and of all goods and commodities which he shall at any time during said term receive or deliver on ac- count of said C. D. That said A. B. will pay said C. D. all such sums of money received and due from the footing of every account. That said A. B. will not disclose any of the se- crets of his imployment or business, nor matter concerning the business of, or to the prejudice of said C. D., nor of his correspondence to any per- son whomsoever. That said A. B. will not destroy, embezzle, or waste any of the goods, moneys, or effects of said C. D. or of any other person intrusted to his care. That said A. B. will not correspond with any person corresponding with his said employer, nor use any traffic or dealing for himself or any other person, or carry on or be interested in any other business or trade whatsoever, without the consent of the said C. D., in writing. That said A. B. will not deliver upon credit any of the goods, merchandise, or moneys of said C. D., or any of his correspondents, to any person or persons whomsoever, without the express con- sent of said C. D. That said C. D., in consideration of said ser- vices, shall pay said A. B. the yearly sum of dollars, in equal payments, on the days follow- ing, viz.: That said C. D. shall, in further consideration of said services, during said time, provide said A. B. with sufficient and suitable board, lodging, and washing. In witness whereof, etc. Contract Employment. To Cultivate Land on Shares. This agreement, etc., witnesseth: That said A. B. will, on or before the day of , break, properly fix, and sow with , all that twenty acres of field belonging to, and lying immediately north of the dwelling-house and garden of said C. D., in the town of . That one-half of the seed wheat shall be found by said C. D. That when said crop shall be in fit condition, he will cut, harvest, and safely house it in the barn of said C. D. That he will properly thresh and clean the same. That the straw shall be equally divided between the parties. That he will deliver one-half of said wheat, be- ing the produce thereof, to saidC. D., at the gran- ary near his dwelling-house, on or before the day of . That said A. B. shall perform all the work and labor necessary in the premises, or cause the same to be done. In witness, etc. Contract Employment. Clerk or Workman. This agreement, etc., witnesseth : That said A. B. shall enter the service of C. D. as clerk (or journeyman;. That said A. B. shall faithfully, honestly, and diligently perform the duties of a clerk (or jour- neyman) in the store (or shop) of said C. D., and well and truly obey all the reasonable commands and wishes of said C. D., during the space of from this date. That he will guard the interests and keep the secrets of his employer, absenting himself only upon said employer's consent. That said C. D., in consideration of said ser- vices, will feed, clothe, and care for said A. B., and pay him a yearly sum of five hundred dollars, in equal quarterly payments, on the first days c ( January, etc. In witness whereof, etc. Contract Employment. Engraving Set of Cuts, etc. This agreement, etc., witnesseth : That said A. B., for the consideration hereinaf- ter mentioned, shall, on or before the day of next, at his own cost and expense, provide good and suitable material, and engrave thereon (state what, itetn by item). That said A. B. shall finish and deliver said cuts, in the order designated, within days next after every notice given for the delivery of the same. That said C. D., in consideration thereof, shall pay said A. B. , upon the delivery of every cuts, the sum of dollars. In witness, etc. Con t ract Em ploy men t. Engraving Steel Plates. This agreement, etc., witnesseth : That said A. B., for the consideration hereafter specified, shall provide good and perfect steel plates, and will engrave thereon (state -what), ac- cording to the plans, specifications, and drawings hereunto annexed. That he will complete and finish the same in a workmanlike manner, and deliver them to said C. D., on or before the day of . That in consideration therefor, said C. D. shall pay to said A. B., upon the delivery of said en- graved plates, and all of them, the sum of dollars, in full payment and satisfaction therefor. In witness whereof, etc. Contract Employment. Freighting Ship or Vessel. This agreement, made this day of Be- tween A. B. & Co., factors and commission mer- chants, of the city of , of the first part, and C. D., owner and master of the sloop (or canal boat) Empire, of the second part, witnesseth : That said party of the first part shall load and freight said sloop 1 or canal boat /during the ensuing season of navigation, to commence on the day of next. That nessl party of the first part, at slip No. , in the city of , aforesaid, on the last named date, and thereafter on her upward trips from to , and on her return trips from to . That said party of the first part will pay said party of the second part, for carrying the same, on the delivery of each and every cargo in safe and sound condition, the following rates of com- pensation : For down freight. Coal, dollars per ton. Dry goods, dollars per hundred. Grain, dollars per hundred. Household furniture, dollars per hundred. Salt, dollars per barrel. For up freight. Butter, dollars per firkin. Grain, " " hundred. Flour, " " barrel. Hay, " " bale. Wood and willow ware, dollars per hun- dred. That said party of the first part shall deliver all lading and freight to the party of the second part, at his sloop (or ca,i*l boat). f 1 11CJIL. iat said sloop (or canal boat) shall be in readi- i to receive her first lading, at the dock of said CONTRACTS. That said party of the first part shall not at any time require said party of the second part to carry or convey on his sloop (of canal boat) any timber or lumber (staves and headings excepted), carts, cars, or vehicles of any description, nor any horses, mules, cattle, swine, sheep, or ani- mals of any description whatever. That said party of the second part, in consider- ation of the premises, shall safely carry all such lading and freight as he shall receive from said party of the first part, and deliver them in as good and sound condition as received, according to the respective bills of lading furnished him by said party of the first part. 1 That said party of the second part shall pay all costs and charges of transportation, including toll, towage, wharfage, etc. That said party of the second part shall dis- charge all lading and freight on the dock at his ,own cost and charge. That said party of the second part shall ply regularly between and , with his said sloop (or canal boat) during the entire season of navigation above mentioned, and will not occupy more than days in making either an upward or downward trip, unless hindered or delaysd by unavoidable accident. In witness whereof, the parties have hereunto affixed their names the day and year first above written. A. B. & Co. Executed in presence of ) C. D. w. T.,N. s. ; Contract Employment. Freighting Vessel, etc. This agreement, etc., witnesseth : That said A. B. , for the consideration hereinaf- ter mentioned, shall, with all expedition, forth- with make ready his vessel, V., and provide th same in all respects for a voyage to P., and shall receive on board the same, for said C. D., the fol- lowing goods: (naming them}. That said A. B. shall, within days from date hereof, sail from this port outwards (the weather serviue; I, and directly to P. That within days after said vessel's arrival at V., said A. B. shall unlade and deliver said goods unto the factors of said C. D. That the dangers of sea, public enemies, and restraint of foreign powers, only are excepted. That said C. D., in consideration thereof, shall pay unto said A. B., for freight of said goods, at the rate of dollars, upon delivery and dis- charge of the sins at V., as aforesaid, together with the accustomed average primage, and two- thirds of all port charges to grow due during said voyage, the other third part to be paid by said A. B. In witness, etc. Contract Employment. Furnace Manager. This agreement, etc., witnesseth : That said A. B., for the consideration herein- after mentioned, covenants and agrees well, truly, and faithfully to serve said C. D., and his legal representatives, at his furnace in , as his book- keeper, manager, and overseer, in which occupa- tion he is skilled, from the day of unto the day of . That during said term said C. D. will, at all times, ba ready to render just and true accounts f all work, matters, and things which have been r shall be done or performed at the furnace aforesaid. That during said term said C. D. will not wil- fijlly neglect or depart from said service or em- ployment, nor do, suffer, or consent to any act or thing to the prejudice of said A. B., his interests, or said furnace, whatever. That he will order and direct all workmen, ser- vants, and persons employed in and about said furnace, in their duty, service, and work, to the utmost of his ability, knowledge, and skill, and for the greatest advantage and profit of said A. B. That in consideration thereof, the said A. B. will pay said C. D., for his service during the term aforesaid, the sum of dollars, as follows, etc. That said A. B. will find and provide said C D. with sufficient meat, drink, washing, ant lodging, during said term. That said A. B. will, at his own cost and charge supply said C. D. with all things necessary foi carrying on the work of said furnace. In witness, etc. Contract Employment. Millwright, Carpenter, etc. This agreement, etc., witnesseth : That said A. B. shall, for a term of years from date hereof, work as journeyman, and well and truly serve the said C. D., in the business of carpenter, joiner, and millwright, and in all such other capacities and work as he, the said A. B., shall be in anywise capable of doing or perform- ing, during the time aforesaid, and that to hie best ability, judgment, and knowledge therein. That during the continuance of said term said A. B. shall yearly work and perform the trade and business aforesaid for said C. D., as follows : From the 22d of March unto the 22d of Septem- ber, from the hour of six in the morning until the hour of six in the evening; and from the 22d of September unto the 22d of March, from daylight unto sundown. Christmas, New Year's, fourth of July, days of national fast and thanksgiving and public service, Sundays, and the usual hours for breakfast, dinner, and supper excepted. That said A. B. will in nowise, during the term aforesaid, absent himself from the service of said C. D., nor do, perform, or work any of said trade or business for the use, interest, or benefit of any other person or persons other than said C. D. That said C. D. shall pay said A. B. therefor the sum of dollars per month, payable (monthly on the first day of each month, or weekly, at the ti.fl of each week). That said C. D. shall provide said A. B. with suitable food and lodging (or in lieu thereof, dollars per week for the same). In witness, etc. Contract Employment. Ship Owner and Surgeon. This agreement, etc., witnesseth : That said A. B., for the consideration hereinaf- ter mentioned, shall, during the voyage of the ship S. from to and return, and during her continuance at all ports and places until the termination of said voyage, administer and apply unto said C. D., the master of said ship, and ail the crew, company, and passengers of said vessel who shall be, or shall be taken on board thereof during said time, all such medicines, physic, and surgery as shall be proper and necessary, acccrU- necessary drugs, medicines, and instruments of surgery, at his own cost and expense. That said C. D. will furnish said A. B. with all necessary provisions, lodging in the cabin of said ship, and all other accommodations for his pas- sage in said vessel during said voyage, at his own cost and expense. That said C. D. will pay said A. B. dollar" per month during said voyage, for said services In witness, etc. Contract Horse-Racing 1 . Horse Race. This agreement, etc., witnesseth : That A. B. shall, on the day of next. with a black gelding belonging to E. F. , and com monly known as B. G., whether sick or well, run the five-mile race course at , against the gray gelding belonging to G. H., and commonly knowt as G. G. That C. D. shall, on the day of , afore said, with said gray gelding, whether sick or well, run said five-mile race course against said black gelding. That said horses shall each be (ridden cr) driven in 'saddle, harness, etc., as the case may if'). That if said black gelding comes first to the end of said course, according to the judgment of two disinterested persons, selected one by e'- Vl of said parties running, for that purpose, thr CONTRACTS. 247 said C. D. shall pay said A. B. five hundred dol- lars. That if said gray gelding comes first to the end of said course, according to such judgment afore- said. then said A. B. shall pay unto said C. D. the sum of four hundred dollars. That said stakes shall be deposited in the hands of I. K. (of - ), to be paid to the winning party according to this agreement. That if any failure shall be made in either of said horses running as aforesaid, the party under- taking for said horse shall forfeit and pay the sum of - dollars (or lose his wager, and the whole of said wager shall be paid to the other of them, as if Wich horse hud actually run and lost). In witness, etc. Contract Horse-racing. Rules and Subscriptions. We, whose names are hereunto subscribed, in order to encourage a friendly meeting of the gentlemen of the county of - , and also the breed of good horses, have severally agreed, and by these presents do this - day of - , to and with each other as follows : That on or before the - day of - next a (state the article to be run for) shall be provided according to subscriptions hereunder written by A. B. as stakeholder or steward, etc., or his chosen representatives in this behalf, to be run for on the course at - by any horse, mare, or gelding whatsoever that shall be entered for that purpose (except such horse, mare, or gelding as have won above the value of said - at any one time), and that every such horse, mare, or gelding shall, etc. (run in - pounds conditions, if any). , harness, wagon, carry - pounds weight, etc., stating Acceptance and entries for race. That no person shall run any horse, mare, or gelding for said (here de- scribe the stake to be run for) that has not actually and bona fide been his own for two months next before the time of running. That no horse, etc., shall run for said (stake) whose size, color, or mark and name (if any), together with the name of the owner, shall not be entered with the stakeholder (steward), or his representative, in a book or paper which shall be kept for that purpose, and such entry to be made at the request of the owner or his agent for that purpose, on the - day of - next, between the hours of eight o'clock in the forenoon and six o'clock in the afternoon, at - in said county, at which time and place every horse, etc., shall he shown, or will otherwise be excluded from all benefit of said (stake). That for the entry of every horse, etc., shall be paid to the stakeholder (steward), or his representative in this behalf, the sum of - dollars if a subscriber, and the sum of - dollars if not a subscriber (such moneys to be wholly used and contributed towards said (strike), and also the additional sum of - to the clerk for making said entries. Construction of this agreement. That if any difference shall happen to arise about the true meaning of this agreement, or any part thereof, the same shall be determined by the majority of the subscribers then present, whose determination, in writing or otherwise, shall be conclusive and final. Costs and expenses. That the stakeholder (or steward) or his representative aforesaid, shall before said - day of - , put the course and posts in good and sufficient repair, and upon proper vouchers or re- ceipts for the same may deduct the charge thereof out of such moneys as he shall receive towards providing the said (stake), together with the charge of giving notice thereof in the newspapers, and all other charges relating to the same. Distancing. That if any horse, mare, or gelding shall be distanced at any one of the said three heats, such horse, etc., shall not be allowed to run again, nor the owner thereof have any benefit of said (stake). If any horse, etc., shall happen to distance all the rest, then the owner of said horse, etc., shall have said (stake) without any more riding. If any horse, etc., who shall win two heats, and shall not be distanced the third heat, the owner of such horse, etc., shall have the said (stake). Heats. That said (article to be run for) shall be won by running the best of three heats on said course (each heat being three miles or thereabouts, as said course is now laid out), and that half an hour shall be allowed to refresh said horses between each heat. That if three several horses, mares, or geldings shall in running for said (stake) each win a heat, such three horses, etc., only shall be allowed to run the fourth heat, and such horse, etc., winning the fourth heat shall be deemed the winning horse, and the owner thereof shall win the (stake). That the owner of any horse, mare, or gelding that shall run for said fourth heat may choose a judge, trier, or umpire (such judge, trier, or umpire not betting on either side) to judge which horse, etc., comes first to the distance and ending posts : providing he gives the name of such judge, etc., to the stakeholder (or steward) or his representative before the first time of starting. Livery and keep of horses. That every such horse, mare, or gelding shall be kept in the city (or town) of aforesaid, at the stables of such persons only as shall contribute towards said (stake ,, from the day of entry to the day of running. Riders weighing. That every person that shall ride for said (stake) shall at his alighting at every heat be obliged to weigh himself; and if thereupon he lacks (or exceeds) weight, or refuses to weigh, such person, or the owner of such horse, etc., shall lose the benefit of said (stake). Spurts. That if any horse, mare, or gelding that shall run for said (stake) shall run on the wrong side of any post, etc., such horse, etc., shall immediately re- turn to the same post, and run as he should have done, or shall lose the benefit of said (stake). Start. That all horses, mares, and geldings shall be obliged to start between the hours of two and four o'clock in the afternoon ; that the owner of such horse, etc., that is not ready to start by that time shall lose his benefit and share in said (stake), and the rest of the horses, etc., may start without him. That notice of starting every time shall be given by drum, horn, trumpet, whistle, or otherwise, by the ap- pointment of the stakeholder (steward) or his repre- sentative. Subscribers' names. $ c. II Subscribers' names. $ c. Contract Insurance. To effect or procure Insurance. See title ASSIGNMENT, post. This agreement, etc., witnesseth : That (stating the causes that make insurance neces- sary). That said A. B. will, because of said premises. insure or cause the same to be insured (in such companies as said C D. shall designate). That in default of said insurance, on or after the day of , said C. D. may effect the same at the costs and expense of said A. B. (and all costs and charges proper and necessary in effecting the same, together with interest thereon at the rate ot per cent, per annum, shall be a lien upon and charge against said , to be included in and become a part of any judgment effected against the same by rpason of the premises). In witness, etc. Contract Insurance. Renewal of Policy. INSURANCE COMPANY OF . No. . In consideration of the sum of dollars, re- ceived of A. B. as premium on policy, No. , for dollars, the same is continued in force for the term of , from the day of , A. D. , at noon, until the day of , A. D. , at noon. Ins. Co., Dated . By C. D. , Agent. Con tract I,aw-Snits. To bear Expenses equally. This agreement, etc., witnesseth: That A. B., C. D., and E. F. are about to com- mence an action for, etc. (stating the grounds of the contemplated action), against G. H., etc. ; or That an action for (stating what) has been brought against A. B., C. D., and E. F. by G. H., That each and every one of said (plaintiffs or de- fendants) shall pay his equal and respective share of the costs and charges thereof; or t+8 CONTRACTS. That each and every one of said plaintiffs '(or defendants) shall pay his full and proportionate snare oi all costs and charge* thereof, such share to be governed by the proportion of his respec- tive share or interest in the amount of the judg- ment recovered by or rendered against said par- ties. \n witness, etc. Contract Law Knit. To Bear Expenses Equally. This agreement, etc., witnesseth That A. B. and C D have set up a claim to a certain tract of land, founded upon the entry and survey of S. R. That the bounds and limits of said land, by vir- tue thereof, appear to extend to, and are in and upon some ot the respective lands of E. F., G. H.. and I. K., which lie adjacent and next said survey. That aid E F., G. H , and I. K. have an older and better title thereto. Or, That the lands of said E. F., G. H , and I. K. are not within the bounds or limits of said survey. That by reason of the premises an action or suit is likely to arise and be instituted. That if any action or suit shall be commenced against any or either of said E. F. , G. H. and I . K. , or any or either of them, at any time or times here- after, then each and every one of them shall bear and pay their respective shares and parts of all costs and damages, arising by reason thereof. In witness, etc. Contract^- Leasing. To Assign Lease. This agreement, etc., witnesseth : That one A. B.,by his conveyance, dated the day of , leased unto said C. D. his , situated in , and described as follows, to wit. (describing the premises}, with power to sub-let or assign said premises or lease. That said C. D. shall, on or before the day of , at the costs and charges of said E F., by an instrument in writing (or by indorsement upon said lease), assign, transfer, and set over all his title and interest in and rights under said lease, to said E F., during the residue of the term of said lease, subject, however, to the rents, cove- nants, and agreements therein contained. That said E.F.,in consideration therefor, shall, ftc. (state what) In witness, etc. Contract Leasing. Of Dwelling. See LANDLORD AND TENANT, LEASE, post. This agreement, etc., witnesseth : That A. B. shall let unto C. D., and C. D. shall hire of A. B. , a certain house and lot of ground, sit- uated describe premises'), for one year from the first day of April next, and for such longer time after the expiration of said one year as said parties shall agree, and until the end of three months after notice shall be given by either party for leaving said premises, for the yearly rent of dollars, payable (monthly, on the first day of each month, or quarterly, on the first days of July, October, January, and April). In witness, etc. Contract Leasing. Of Dwelling and Store. See LANDLORD AND TENANT, LEASE, post This agreement, etc., witnesseth : That said A. B. shall, by an instrument in writ- ing, executed on or before the day c-f next, lease to said C. D. the store, dwelling-house and lot numbered , on street, in the town of , for a term of years from the date of said lease, at the yearly rent of dollars, payable (monthly, in advance, or quarterly, on the first days of January, etc., of each year), clear of all taxes and assessments. That said lease shall contain covenants on the part of said C. D., or his representatives, to pay rent (except in case said premises are destroyed by fire rent is to cease until they are rebuilt), and all taxes ana assessments, to keep said premises in good repair (damages by fire excepted), not to carry on any offensive business upon the same, and to peace- ably deliver up possession of said premises at the expiration of said term. That said lease shall also contain covenants on the part ot said A. B., or his representatives, for quiet enjoyment ; to renew said lease at the ex- piration of the term aforesaid, at the request of said C. D., to be made fifteen days prior to such expiration, for a further term of years ; and that in case said premises shall be destroyed b> fire, said A. B. shall forthwith proceed to rebuild the same. That the costs and charges of making, execut- ing, and recording said lease, and duplicate thereof, shall be equally borne and divided b- tween the parties to this agreement. In witness whereof, etc. Contract Lensfng. Dwelling-House and Furniture. This agreement, etc., witnesseth: That said A. B. shall, for the consideration here- inafter mentioned, and on or before the day of next ensuing, lease unto said C. D. the dwelling and premises situate in , and de- scribed as follows (describing it by metes and bounds, or number . street, etc.), together, also, with the use of all and singular the furniture belonging to said dwelling, comprised, described, and men- tioned in the schedule hereunto annexed and signed by said parties, for a term of , at the yearly rent of dollars, clear from all taxes, rates, and assessments whatever (except the land tax). That said C. D. shall, in consideration thereof, pay said yearly rent as follows : (stating payments etc > That said C. D. shall, during said term, bear and pay his full proportion (of ) of the expense of cleansing and keeping in repair said premises, the common sewer or drain therefrom unto the street adjacent, and keep said premises and fur- niture in good condition, and so deliver the same at the expiration or sooner determination of said term (reasonable wear and tear only excepted) That said C. D. shall not, during said term, or his occupancy of said premises, permit or suffer any part of said furniture or fixtures to be re- moved therefrom (except for repairs). That said C. D. shall not let or underlease said premises to any person or persons whatsoever, during said term, without the consent of said A. B. having first been obtained, in writing. That said premises shall not be used during said term to carry on the trade or business of soap maker, butcher, etc., nor for the sale of intoxicat- ing liquors, etc., or any of them, or any noisome or offensive trade or business whatsoever, in, upon, or about the same. That on the non-payment of any of said rents, or the non-performance or violation of any cove- nant or provision herein contained, said A. B. may, upon days' notice, re-enter and possess him- self of jid premises, ard from the g sods and effects of said C. D. therein may reimburse him- self by execution or order of sale of all costs and expenses of whatsoever kind, caused by virtue of such re-entry, the amount of which may be in- cluded in any judgment for possession of said premises, or otherwise. That said C. P. shall have quiet enjoyment of said premises, during said term, upon payment, as aforesaid, of said yearly rent, and the observ- ance and performance of the agreements and covenants herein contained. In witness, etc. Contract Lodgings Housekeeper and Lodger. See LANDLORD AND TENANT, LEASE, post. This agreement, etc., witnesseth : That said A. B. has let to said C. D. the entire first floor and one room in the attic story, with the use of the offices, and of the yard for drying linen, beating carpets or clothes, of the dwelling- house No. , on street, in the city of , fora term of , from date hereof, at a yearly rent of dollars, payable monthly (in advance /. to said A. B. CONTRACTS. 249 That at the end of said term, or upon default of any payment, said C. D. shall deliver up to said A. B. , or his legal representative, on request, the quiet and peaceable possession of said premises, and leave them in as good condition as when he took possession thereof, reasonable wear (or de- struction from fire or inevitable accident) excepted. In witness whereof, etc. A. B. C. D. Contract Lodgings. Housekeeper and Lodger. This agreement, etc., witnesseth : That said A. B., in consideration of the rents hereinafter mentioned, has let for a term of from date hereof, to C. D., two rooms up ose pair of stairs, in the front part of the dwelling-house of said A. B. , situated (describe premises), together with the furniture at present standing therein, to wit (give items of furniture, etc.) That said C. D., in consideration thereof, shall pay said A. B. the yearly rent of dollars, to be paid quarterly, to wit, on the first days of January, April, July, and October. That said C. D., at the end of said term, or in case of any default in payment, shall, at the re- quest of said A. B. , immediately yield and deliver up to him the peaceable and quiet possession of the said room, together with the whole furniture which he on his first entrance thereon and at all times thereafter, of said A. B. , there found and possess in good and sufficient condition and order, reasonable wear and tear only excepted. In witness, etc. Contract Lodgings. Housekeeper and Lodger. This agreement, etc., witnesseth : That said A. B. shall let, and said C. D. shall hire, the following rooms in the dwelling-house, situated (describing location), to wit (designating them). That said rooms shall be properly lighted, heated, and supplied with hot and cold water, as follows : North room. Gas, burners, capable of sup- plying feet per hour. Heat, by register (or steam apparatus) capable of supplying from to degrees of heat at pleasure and continuously. Water, washstand (or bath), etc., in abun- dance in all seasons, hot water from a. m. to p. m. Etc., throughout the entire suite. That said A. B. shall paint and paper said fooms as follows, viz. That said A. B. shall furnish and provide all windows and hall-doors of said rooms with curtains, wire screens, and blinds. That said A. B. shall provide all doors, win- dows, and blinds with safe and substantial locks and fastenings, retaining no duplicate keys of the same whatever. (That said A. B. shall furnish said rooms as follows : describing the furniture throughout each room.) That said A. B. shall provide a private bell at the main entrance of said building, and thereon furnish facilities for the engraved name of said C. D. to be substantially fixed. That said A. B. shall at all times keep the halls and stairways leading to said rooms comfortably and neatly furnished, and free from all dirt and dust, and odors from cooking, laundry-work, and all and every impure or offensive smell, and at all times to keep the air therein fresh and pure, and that during the cold and chilly seasons of the year to keep the same warm and comfortable. That said A. B. shall at all times keep the front walks, gutters, fences, yard , lawn, railings, shrub- bery, and entrance of said dwelling clean and wholesome. That said A. B. shall at all times neither permit nor allow any unwholesome accumulation of refuse, or rubbish, garbage, or decaying matter to accumulate or remain in, about, or upon said premises, or in any manner suffer or permit any uncleanness or noisome or unwholesome odors to pervade said premises by reason thereof. That said A. B. shall deliver or cause to be de- livered at said rooms all and every card, message, letter, paper, parcel, package, or other thing left to the address of said C. D. , or any member of his household, guests, visitors, or servants, forth- with, and without delay, and without disturbing, going through, or molesting the same. That for any violation or material omission in providing all things herein agreed by said A. B., of this agreement, said A. B. shall, upon notice in writing, make complete reparation, and in addi- tion pay said C. D. double the amount of injury sustained by reason thereof; or the same shall thereafter be retained out of the rents hereinafter mentioned. That in case of controversy over the amount of injury sustained, or any part of this agreement omitted, then said A. B. and C. D. may each of . them choose one disinterested person, who may select a third, the decision of which, or any two of them, shall in such matter be binding and final. That if said A. B. shall fail to designate such person, then the one selected by said A. B. shall select another in the same manner and with like effect as said A. B. should have done, and there- after proceed in like manner and with like effect as aforesaid. That said C. D. shall in consideration thereof pay said A. B. the yearly rent of - dollars, pay- able (monthly, or quarterly, in advance, or otherwise) as follows, etc. In witness, etc. Contract Manufacturers and Agents, etc. Between Manufacturer and an Agent, Broker, Facttr, or Commission Merchant. This agreement, etc., witnesseth : That said A. B. , in consideration of the cove- nants and agreements hereinafter entered into by said C. D. & Co., shall act as agent or factor, etc., for said C. D. & Co., and their survivors, in the selling, vending, etc., at - , in - , for the term of - years from the date hereof, as here- inafter provided. CONDUCTING BUSINESS. That said A. B. shall carefully deposit and preserve, in the shop or warehouse for the time being made use of for the purpose of said agency business, all such goods, wares, and merchandise as may be sent or trans- mitted to him by said C. D. & Co. That in managing and conducting said ajrenry said A. B. shall use his best endeavors and skill to procure the greatest possible sale of (state the kind of goods), and all other goods which he shall be employed to sell as such agent or factor, etc., either for ready money, or to persons of responsibility and substantial credit. That in selling upon credit said A. B. shall be circum- spect and cautious, and make due inquiries from reliable and respectable persons, whether such persons applying for credit are solvent and fit to be trusted. That said A. B. shall not give credit to any person or persons for a greater length of time than - , without the consent of said C. D. & Co., or their survivors, in writing. That said A. B. shall not, without like consent, sell to any person on credit to a greater amount than - dollars. That said A. B. shall, in conducting said agency, conform to and govern himself by such orders, instruc- tions, and directions as he may from time to time re- ceive from the said C. D. & Co. That said A. B. in all cases where he shall receive no special orders or directions shall act in such manner as he shall judge most to the advantage of said C. D. & Co., etc. That said A. B. shall from time to time account for and transmit to said C. D. & Co. all moneys, bills, and securities for money received from the sale of said goods. That said A. B. shall keep books of account in which shall be made correct, customary, and plain entries ot all goods received from said C. D. & Co., of all goods ld, to whom, and whether for cash or credit, and like- sol wise of all other matters and things as in anywise con- cern said agency business. That said A. B. shall carefully preserve all said books of account, books, documents, papers, and writings in anywise concerning said agency business (in a fire-proof safe, by said - to be provided), and upon the final adjustment, settlement, and close of said agency bust- CONTRACTS. ess shall deliver and gire tip said books, etc., un- injured, undefaced, and unobliterated to said C. D. &Co. That said A. B. shall from time to time on the first day of each and every month, send and transmit to said C. D. & Co. a full, clear, and correct statement in writing of all orders both taken and executed, of all goods received, of all goods sold, to whom and whether ior cash or credit, and likewise of all other matters, trans- actions, and things as in anywise concern said agency business, and which shall nave transpired during the preceding month. That said A. B. shall, on the day of each and every year (unless either of said days shall be Sunday, and in that case on the day following) take stock, make an inventory of all stock, etc., on hand, and accurately cast up all books of account, so that the state and condition of said agency business shall clearly appear therefrom. That said A. B. shall, out of the commission (salary, or wages) hereinafter agreed to be paid him, find and provide a clerk who writes a good hand, and under- stands accounts and book-keeping, for the purpose of constantly assisting him in the management of said agency business. That said A. B. shall, out of said commission (salary, or wages) aforesaid, find and provide a porter for the purpose of assisting him in said business. That said C. D. & Co., or any of them, shall at all seasonable hours of the daytime have free access to said books of account, and to all other books, papers, docu- ments, and writings in anywise concerning said agency business, and to take copies and extracts from the same or any of them. Determination of Agency, etc. That in case said A. B. shall at any time before the expiration of said term of years be desirous of giv- ing up said agency business, he shall give six months' previous notice in writing of such intention to said C. D. & Co., or their survivors, to be left at their (or his) usual places of abode. That in case said C. D. & Co. shall at any time before the expiration of said term of years, be desirous of withdrawing said agency business from said A. B., they shall give six months' previous notice in writing of such intention to said A. B., to be left at his usual place of abode (shop or warehouse). That at the expiration of said six months said agency business shall be determined and dissolved, and final settlement and transfer of all remaining goods, moneys, securities, etc., made. Expenses, etc. That all expenses relating to the conducting of said business, cost of carriage, gas, store, and water rents, sprinkling streets, etc., shall be borne as follows, viz. Losses. That said A. 1'. shall not be answerable for any loss or damage which may happen any goods or me: chan- dise sent to him during its transit and before it shall come to his care and custody, nor for any loss or dam- age which may happen to the same which has actually come into his hands and custody, and which shall be sent by said A. B. to any customer by any of the usual means of delivery or otherwise, unless said A. B. shall have neglected to enter in the proper book of the office the company or carrier, and receive his receipt upon the delivery of such goods or merchandise, and the remedy against the proper party is thereby made so uncertain that the loss cannot be remedied. That for any other loss or damage which may huppen 'to any goods or merchandise committed to his charge or care, unless such loss or damage be the result of or hap- pens through his wilful negligence or omission. Other Agents or Factors, etc. That said C. D. & Co., or their survivors, shall not employ any other person or persons as an agent or factor, etc., during such time as said shall act as gent or factor, etc., aforesaid. Other Business. That said A. B. shall devote his whole time and attention to said agency, and shall not engage in the business of , or in any other business whatsoever, either on his own account or as an agent or factor, etc., and either alone or in copartnership with any person or jxsrsons whomsoever. Place of Business. Tint said A. B. shall carry on and conduct said agency business at the (shop, or) warehouse of said ('. D. & Co., at , in , or in such other (shop, or warehouse, in aforesaid, as they, or their survivors may appoint or direct for that purpose. Salary, Commission, or Wages. That said C. D. & Co., in consideration of the true and faithful performance of the agreements and cove- nants entered into by said A. B., shall (yearly) pay, or cause to be paid, unto said A. B , the following salary or wages (or commission), viz. : (stating images, salary, or commission, as the case may be). Stationery, etc. That said C. D. & Co. shall pay said A. B., once every , all such sum and sums of money as he may have necessarily paid, laid out, and expended for and on account of stationery, paper, books, copy books, files, letter press, postage, etc., etc., made use of in the said agency business. In witness, etc. Contract Mann factoring;. This agreement, etc., witnesseth : That said A. B. shall, at his own expense, man- ufacture (state what), of the same quality of mate- rial and workmanship, and in all other respects according to ( name the pattern agreed -upon between said parties) the description and design hereunto annexed. That said A. B. shall deliver the same to said C. D. at , on the day of (or months, or weeks herefrom). That said C. D., in consideration thereof, shall pay said A. B., at the rate of dollars per (after from the delivery thereof). That all not manufactured agreeably to said (pattern, <) description and design shall be rejected by said C. D., and taken back by said A. B., who shall manufacture a like quantity agree- ably to the provisions of this agreement. In witness whereof, etc. Contract Manufacturing. Barrels. This agreement, etc., witnesseth : That said A. B., for the consideration hereinaf- ter mentioned, sball make, or cause to be made, for said C. D., at the cooper shop of said C- D., in the town of , two thousand good, hard, well-seasoned flour barrels, the staves and head- ing to be of white oak timber, and the hoops of black ash, either round or square, as the said C. D. shall direct. That the materials therefore are to be furnished by said A. B., at his own cost and charge. That said A. B. shall have the free and uninter- rupted use of the tools in said shop, without pay- ing anything for the same. That in consideration thereof, said C. D. shall pay said A. B. the sum of twenty-five cents each for said two thousand barrels, as follows : That upon the completion of each one hundred barrels, said A. B. shall receive the sum of twenty- five dollars. In witness whereof, etc. Contract Manufacturing. Boots. This agreement, etc., witnesseth : That A. B. shall within (state what time') from the date hereof, make and deliver to said C. D. ten thousand pair of boots, from calfskin, of the quality, and of the following sizes: (here give the sizes). That in consideration therefor, said C. D. shall pay to said A. B. dollars for each pair of boots, upon the completion and delivery of said ten thousand pairs, if the same shall be delivered within the time aforesaid. In witness whereof, etc. 4 'on tract Ha n u fact tiring; Bricks. This agreement, etc., witnesseth : That said A. B., for the consideration hereinaf- ter mentioned, shall, within six months from the date hereof, and with good and sufficient mate- rials, make, or cause to be made, and deliver at , in , thousand hard, well-burned, and substantial and merchantable bricks (by actiuu count), of tbe grade comrr.tvily known as - brick. CONTRACTS. That said brick, when burnt, shall all and every one be full four inches broad, eight and three- quarters inches long, and two and one-half inches thick. That said A. B. shall, at his own costs and charges, deliver in such parcels and quantities, from time to time, at the house of said C. D. (or otherwise, as agreed), in , as the same shall be demanded, or occasion require, for carrying on his buildings there. That said C. D., in consideration thereof, shall pay to said A. B. dollars for every thousand of said bricks, made and delivered as aforesaid, in payments as follows : (giving terms, time, and ttnount of payments). In witness, etc. Contract Manufacturing. Patented Articles. This agreement, etc., witnesseth : That said A. B. is the (inventor and) proprietor of an invention for (state w/iat), and proprietor of letters patent issued therefor by the United States of America, bearing date the day of . That said A. B., for the consideration hereinaf- ter mentioned, does hereby give, grant and trans- fer unto said C. D., during all the residue of the term of years yet unexpired (together with all such future terms as may hereafter be granted, by virtue of any new patent or renewal of said patent by this agreement sold, or otherwise^, full authority and power, license and liberty, truly and without re- straint, to make, produce, manufacture, barter, sell, and convey the same, by wholesale or retail, within the following territorial limits, to wit (de- scribe territory). That said A. B. shall not, at any time during the residue of said term, or any such future term, give, grant, or transfer any authority, power, license, or liberty whatsoever to any other person, to make, manufacture, produce, barter, sell, and convey the said articles, in any manner whatsoever, within the territory aforesaid, without the con- sent of said C. D., in writing. That in case any person shall infringe said let- ters patent, or in any manner violate any right thereunder, within said limits (actually or con- structively), the said C. D. shall, for his own use and benefit, and at his own costs and expenses, prosecute the same (if necessary, in the name of said A. B.), to final judgment. And for this purpose said A. B. hereby constitutes said C. D. his law- ful attorney, irrevocably, with full power of sub- stitution and revocation, hereby ratifying and confirming all things which he may lawfully do in the premises. That said C. D., in consideration thereof, shall \>ay unto said A. B. the sum of dollars, in payments as follows, etc. That said payments shall be evidenced by the corresponding number of promissory notes, in sums equal to said payments, of even date here- with, maturing on the respective days of pay- ment, and bearing interest at the rate of per cent, per annum, from maturity until paid. That said notes shall be secured by a mortgage on (state what). Or, That said C. D., in consideration thereof, shall pay unto said A. B. per cent, of the re- tail price of all said so manufactured, bar- tered, and sold, said per cent, to be due and IBayable on the days of in each year, at which time said A. B. shall render an account of all sales and transfers made during the last past. In witness, etc. Contract Manufacturing:. Shoes. This agreement, etc., witnesseth : That said A. B. , for the consideration hereinaf- ter mentioned, shall, at his own expense, make and manufacture, and deliver at , on or before the day of , for said C. D., dozen la- dies' shoes, of leather, of quality, and according to the samples and pattern agreed be- tween said parties and in sizes from 3 to 7. That said C. D., in consideration thereof, shall pay said A. B. at the rate of per pair, days (or months) from and after the delivery of said shoes as aforesaid. That if any of said shoes shall not be made in conformity with said pattern, and for that reason shall be rejected by said C. D., then said A. B. shall receive and take back the same, and in then stead deliver a like quantity to said C. D. in con- formity with the pattern aforesaid. In witness, etc. Contract Obstructions. To Window Lights, etc. This agreement, etc., witnesseth : That on the south side of the dwelling-house of A. B., situated in , in , there are two ancient window lights. That said window lights have been totally ob- structed by a dwelling-house lately erected by C. D. upon his lands adjoining thereto. That said A. B., for a consideration of , hereby agrees that said window lights shall and may forever remain obstructed as aforesaid, here- by releasing said C. D. and his legal representa- tives from all actions, claims, controversies, de- mands, and suits whatsoever on account thereof. In witness, etc. 011 tract Pa r t n ersbip. General Form. This agreement, etc., witnesseth : That said A. B., C. D., E. F., and G. H. shall as- sociate themselves together in the trade of buy- ing, wholesaling, and retailing all sorts of goods, wares, and merchandise belonging to the trade and business of . That said partnership shall continue from the date of this agreement for and during the term of ten years next ensuing. That to this end and purpose the said A. B. has contributed as stock the sum of one thousand dollars ; and said C. D. the sum of one thousand dollars ; and the said E. F. the sum of one thou- sand dollars; and the said G. H. the sum of one thousand dollars, to be used, invested, and em- ployed in common between them, to their general advantage in the management of said business. That said parties shall not, at any time hereaf- ter, use, follow, or exercise said business or occu- pation, or any other, during said term, to their private benefit or advantage, but shall, at all times during said term, with their utmost skill and ability, conduct and act only for their mutual advantage with said stock and for its increase. That said parties shall discharge all rents and expenses of said business equally between them. That all profit, gain, and increase that shall arise by reason of said joint business shall be equally divided between them, share and share alike. That all losses and decrease that shall happen in said business, by reason of bad debts, or other- wise, shall be borne and paid equally between them, share and share alike. That there shall be kept, during said term and joint business, just and true books of account, wherein each of said partners shall enter and set down the money by him received and expended, the goods, wares and merchandise by him bought and sold, and all other matters and things con- cerning said partnership, so that either of said partners may at any time have free access thereto. That said partners shall, once every three months, upon the request of any one of them, make and render to each ether, or his legal rep- resentatives, a true and perfect account of all profits and gains by them made, and of all losses sustained ; and also of all receipts, disburse- ments, and other things whatsoever concerning said partnership, and thereupon shall cancel, ad- just, pay, and deliver unto each other their equal shares of the profit so made, if any. That at the end of said term of ten years (if said partnership be not sooner determined, in which case) the said partners, or their survivors, shall make a final and true account of all things as afore- said, and in all things well and truly adjust the same. That upon making such account of stock, goods, wares, and merchandise, and the profit CONTRACTS. f*ln, and Increase thereof which remain, the same shall be equally divided between them, or their survivors, share and share alike. In witness, etc. [Witnesses.] Contract Partnership. . General Form Various Clauses. See title PARTNERSHIP, post. This agreement, made this day of , be- tween A. B. (of ), C. D. (of ), and E. F. (of ), witnesseth : That said parties shall associate themselves to- gether in the business of (state what) only. That said business shall be commenced on the day of and be concluded on or before the day of . It shall, in the meantime, be concluded by either the bankruptcy, death, or in- solvency of either of the parties, or by their mutual consent. That said business shall be carried on, continued and maintained in only. That the capital of said partnership shall be furnished as follows : A. B., dollars in money, dollars in real estate, as per schedule marked A, hereunto at- tached, and dollars personal property, as per schedule B, hereunto attached. Etc., etc. C. D., dollars in money, dollars in promissory notes, copies of which are set forth in the schedule hereunto attached, marked C. E. F., dollars, etc. That all said real and personal estate shall be considered between said partners, as being the several and separate property of the partner con- tributing the same. Accounting. That there shall be a settlement of all partnership ac- counts at least once in each year, at which times the same shall be adjusted, and all balances converted into bills payable or receivable, which bills shall be negotia- ble and payable at , in days from their date, and bearing interest, etc. Arbitration. That at any time hereafter, and before the accounts between said parties concerning said partnership shall be finally settled and closed, any difference or dispute that shall arise between them, or any of them, concern- ing the true construction of these presents, or any cove- nant or thing herein contained, or any accounts to De stated or settled in pursuance hereof, or any fact, mat- ter, or thing relating to said partnership or the concerns thereof, shall be submitted and referred to the determi- nation and award of three arbitrators chosen, two of which shall be chosen by the parties in difference, which two shall select a third, and the decision and award of any two of them, in writing, shall be final, binding, and conclusive. Assignment of Partner's Interest. That neither of said parties shall, without the consent of all the others, in writing, sell or assign his share or interest in said partnership and joint trade and business to any person or persons whomsoever. (Where there is a right reserved to either party to as- sign his interest in the partnership, if he abuses it by assigning it to an incompetent person, from whatever cause, a court of equity may interfere by injunction. 1 ) That either of said parties may, at any time, upon notice, in writing, to all the others, sell and assign, by writing, his share or interest in said partnership trade and business, to any competent, solvent, and responsible aerson whomsoever. Business Management. That the branch of said business shall be man- aged by A. B. ; in his absence by C. D., and in the ab- sence of both by E. F. That the branch of said business shall be man- aged by C. D., and in his absence by E. F. ; in the absence of both by the foreman of said department. That the branch of said business shall be man- aged by E. F., and in his absence by whoever said A. B. and C. D. may at the time designate. Buy or Sell. That upon the dissolution of said partnership either -Story Partn. J 183 u. 2 ; Id. J 311. party may, in writing, make an offer to the other par- ties to buy their, or sell his own, entire interests in said partnership effects, at a certain specified price. That thereupon and within days thereafter said parties shall signify by writing, to said party proposing, their acceptance or rejection of his offer, and failing so to do within that time said party proposing may within days buy or sell at his own option and according to his said proposal. Capital Stock. Increase and Limit. That neither of said parties shall draw out any part of the profits of said concern without the consent, in writing, of the others of them, until the capital shall ex- ceed the sum of dollars, which sum of dollars shall be set apart during the term of said partnership as a joint capital for the purposes of said concern. When, however, said capital shall exceed the sum of dollars, then either party may take out the whole or any part of his share of the profits appearing to his credit. Amounts and Limit allowed Partners, That each of said parties may draw from the cash of the joint stock the sum of dollars (monthly or quarterly) for his own use, to be charged on account, and neither of them shall draw any further sum for his own separate use without the consent of the others in writing. That any such further sum taken with such consent shall draw interest at the rate of per cent, per annum, and shall be payable, together with interest due, within days after notice in writing given by the other of said parties. That neither of said parties shall be entitled to or draw from the joint stock at any time more than his share of the profits of the business then earned after adjustment of expenses and losses. Interest. That if at the expiration of each year a balance of profits shall be found due to either partner he shall be at liberty to withdraw said balance, or he /nay leave the same in the business, if the other partners consent thereto: in which case he shall be allowed interest on such balance at the rate of per cent, per annum, and thereafter when said balance is to be withdrawn notice shall be given of its intended withdrawal. Cashier or Receiver. That the principal clerk for the time being shall be the cashier and general receiver of all the money be- longing to said joint business and partnership, and shall pay therefrom all demands ordered by said parties ; and shall from time to time pay the surplus cash to such bankers as said partners shall designate. Continuance of Partnership. It is hereby agreed that the partnership evidenced by the within articles of agreement shall be continued upon the same terms and under the same provisions and re- strictions as are therein contained for the further term of from the day of next. Credit. That neither of said parties shall sell or credit any goods, wares, or merchandise belonging to said joint business or partnership to any person or persons after notice in writing from the other of said parties that such person or persons are not to be credited or trusted. Decease. That in case of the decease of any one of said part- ners before the expiration of said term of , said part- nership shall cease and be dissolved as to such partner only, and said joint business and partnership may be carried on and conducted by the surviving partners for all the residue of said period of , upon the same conditions and terms, and subject to the same stipulations and terms as are herein contained. That said surviving partners shall be respectively in- terested in the share of the deceased partner and the profits arising therefrom, in the same relative propor- tions in which they are interested in the other ana re- maining shares of said business concern. That within days after the share of said deceased partner shall be withdrawn from said joint trade the same shall be replaced by the surviving partners in the same proportions in which they respectively are to bo interested in the profits arising from the share aforesaid. Determination or Dissolution. That if either of said parties shall be declared a bank- rupt, or file any petition for the benefit of the insolvent CONTRACTS. 253 debtors' act, or enter into any general composition with his creditors, or the greater part in value thereof, or shall for his own use, or any purpose other than for the immediate use of said partnership concern, accept, draw, indorse, or make any bill of exchange or promis- sory notes in the name of said firm, or shall suffer his share in the partnership effects to be attached or taken in execution for any private debt, then the others of said partners may within days after the same shall have come to their knowledge give said party so acting notice in writing, personally or by leaving the same at his last place of abode, announcing a dissolution of said partnership. That thereupon said partnership shall be determined and dissolved in the same manner as if the whole of said term had expired ; and the party giving such notice shall be at liberty to insert a notice of such dissolution in the or any other newspaper printed and of gen- eral circulation in , and to subscribe and affix the name of such party as well as his own to such notice ; this authority to be irrevocable. Division of Duties. That A. B. shall confine and devote all his attention, skill, and time to the business of said firm as salesman and superintendent of the department of said business. That C. D. shall confine and devote all his attention, skill, and time to the business of said firm as , etc., in department of said business. Etc., etc. Expulsion of Members. That for gross misconduct, bankruptcy, insolvency, etc. (specifying the cause), the partner guilty thereof may forthwith be expelled by said firm, and his accounts and interests, if adjustable by said firm, shall be settled as soon as the same can be conveniently done, not ex- ceeding, however, from the date of such expulsion. Firm-Name. That the name and style of said firm shall be " The B. 1). and E. Company." Indorsement, Signature, etc. That neithei of said parties shall, during the existence of said partnership, without the consent of the other being first obtained, enter into any bond, conveyance, covenant, judgment, or other obligation, become bail or surety, accept any bill, make any note, or indorse any or either of the same for himself or any other person whatsoever, or for said firm, without the consent of the others having been first obtained. Majority. In the absence of any stipulation to the contrary, each partner, no matter what his interest in the stock is, has an equal voice with the others, and the necessary conse- quence of this rule is, that the majority must govern. They must, however, act bona fide, and the minority have a right to be consulted.' That in all matters respecting the general transactions of the affairs and management of the business of said partnership, the wish and opinion of a majority of said partners shall govern and be binding upon the whole of said partners. New Partners. That in case said A. B., etc., should think it prudent to admit an additional partner into said partnership concern generally, or into the branch of said con- cern only, he (or they) shall be at liberty to do so. That such party so admitted shall be in all respects bound by all the agreements, stipulations, and provisions herein contained, as though he had been a party hereto, co far as the same shall or may be applicable, and ex- cept as to the proportion of his share and interest in the increase and profits thereof. That said party so admitted shall, when thereunto re- quired by any or either of said partners, at his own ex- pense enter into a covenant to perform and observe all and every agreement, stipulation, and provisions in this agreement contained. Profits and Losses. That all profits and losses shall be apportioned ac- cording to the capital furnished by each of said partners, and in no other manner. Release of Debts. That neither of said parties shall, without the con- sent of the others, release or compound any debt or de- mand, due or payable to them on account of their said a-Story Partn. jj 123. partnership, except for so much as shall actually be re- ceived and brought into the cash and stock account of said partnership concern. Retiring Partner. That said parties, or either of them, retiring from said business and partnership shall not at any time or times hereafter, either alone, or jointly with, or as agent or representative of any person or interest whatsoever, or upon any account or pretence set up, exercise, carry on, be interested in, or encourage said trade or business of , within miles from , aforesaid, or en- courage any opposition to said trade or business carried on by his or their successors in the same, nor do any- thing to the prejudice thereof, nor disclose or make known any of the accounts, secrets, or transactions of or relating to said partnership. That if said parties or party so retiring shall do any act in breach or violation of this covenant, then such party shall thereupon immediately pay unto his succes- sors the sum of dollars, liquidated, fixed, and ascer- tained damages, for said breach and its consequences. Settlements. That at the expiration of said term a settlement shall be made in either of the following modes, to be agreed upon, verbally or in writing, within one week of the date of said expiration : 1. By turning all the assets of said firm into cash, and, after paying all the liabilities of said partnership, to divide such moneys as remain in proportion to the several interests of the parties; or 2. By one or more of said partners purchasing all the property or shares of the others at a valuation (to be made by three disinterested persons, each chosen by one of the partners for that purpose). 3. By all the property of the partnership being ap- praised by appraisers chosen as aforesaid, and after paying the partnership debts the remainder to be divided in the proper proportions. In witness, etc. Contract Partnership. Active and Dormant or Silent Partner. This agreement, etc., witnesseth : That said A. B. and C. D. have joined them- selves together as partners, under the firm name and style of A. B. & Co., for the purpose of car- rying on the business of , at , in , for a term of years from the date hereof, unless sooner dissolved by act of the parties or by opera- tion of law. That said C. D. shall furnish to said partner- ship a sufficient stock of suitable goods, wares, and merchandise for commencing business, not exceeding dollars, and not less than dol- lars, to be charged to said partnership at first cost, and from time to time, as such stock shall be reduced, to renew and replace the same upon like terms. That said A. B. shall not, without the express consent of said C. D., purchase or procure on ac- count of, or for the purposes of said partnership concern, any goods, wares, or merchandise, in the line of said joint business, or otherwise, from any other person than the said C. D., nor in any man- ner other than is provided in this agreement, un- less specially authorized by the consent of said C. D., in writing. That said A. B. shall take upon himself the sole care and management of said joint business, at- tend to all sales, and devote his care, diligence, and labor exclusively to the superintendence of the same. That said A. B. shall, from time to time, and as often as required by said C. D., remit to him all moneys received from such sales, on the joint ac- count, after deducting the actual and necessary expenses in the prosecution of said business, and at all times, whenever required by said C. D., shall exhibit the books and accounts in relation thereto. That said A. B. shall not, during said term of years, use, follow, or exercise said business, or any other, for his own private benefit or ad- vantage, but that he will, at all times during the continuance of said partnership, conduct and per- form in all things to the best of his knowledge, skill, and ability, to the joint benefit and adv*o- ' tage of both parties. CONTRACTS. That all gain, profit, and increase that shall arise from said joint business and partnership shall, from time to time, during said term, be equally divided between them, share and share alike, and that all losses that shall happen to said business and partnership by bad debts, etc., or otherwise, shall be borne and paid equally be- tween them, share and share alike. That at the end of said term of years, or upon a sooner termination of said partnership, as aforesaid, the stock and profits which may be then upon hand, and all other property of said partnership shall, after the payment of all debts of said partnership, be equally divided between aid A. B. and C. D.,or their survivors or legal representatives. In witness, etc. Contract Partnership. Between Merchants in Different Countries. This agreement, made this day of , be- tween A. B., of New York city, in the State of New York, United States of America; C. D., of the city of London, in the kingdom of Great Britain; E. F., of the city of Berlin, in the Ger- man Empire, and G. H., of the city of Paris, in the republic of France, witnesseth : That said parties shall, for the term of years, carry on the joint business of , at the places, by the respective parties, and under the respective styles and firm names, as follows, viz.: A. B. in said city of New York, under the firm name and style of A. B. & Co. C. D. in said city of London, under the firm name and style of C. D. & Co. E. F. of said city of Berlin, under the firm name and style of E. F. & Co. G. H. of said city of Paris, under the firm name and style of G. H. & Co. That the capital stock of said partnership con- cern shall be provided by said parties in the fol- lowing proportions, viz. : A. B,, the sum of dollars, cash. C. D.. the sum of dollars, etc., etc. E. F., the sum of dollars, etc. G. H., the sum of dollars. Accounts. That said parties shall be just and tme to each other, and shall give just and true account to each other, upon request, of aJl their partnership con- cerns. That proper books of account shall be kept at the sev- eral counting houses of said parties at New York, Lon- don, Berlin, and Paris, or in some place which shall be from time to time appointed by them, in which shall be entered all the transactions and concerns of said joint trade, according to the usual course and practice of mer- chants, and to which books any of said partners, or any other persons by him or them authorized, shall have free access for all matters respecting their trade and dealings, at all seasonable times, and may take copies thereof. Advances on Consignment, Credit, Purchase, etP. That none of said partners shall enter into any purchase, transaction, or engagement, or make any ad- vance upon consignments on account of this partnership, or trust any person with goods, or otherwise, to the amount of dollars or upwards, without the concur- rence and approbation of the others of them. That none of said partners shall enter into or make any purchase, transaction, or engagement, or make any ad- vance whatsoever, on consignments, or trust any person with goods, or otherwise, to any amount whatever, after notice from the other partners not to do so. Advances, Increase, Surplus. That if any of said partners shall contribute any further sum of money into said concern, or permit his gains to remain therein, to a greater amount than his proper share thereof, he shall re- ceive interest for such surplus, after the highest rate in any manner lawfully allowed at the place where the same shall so remain or be contributed, and the stock in trade shall, from time to time, be a security to such partner for any such advance and interest. If there shall not be sufficient stock in trade to answer the same, the other partners shall each, from their own respective private estates, be liable to make good such advances and in- >rest. Allowances for Entertainment. That each of laid partners shall be allowed the sum of dollars per annum out of said concern, before any division or distribution of gain shall take place, to be devoted to the entertainment of strangers, etc., etc., at their respective places of business. Application to Business. That each of said part, ners snail, to the best of theirrespectiveskill and ability, diligently apply himsvlf in and about the business of said concern, and the management, profit, and advantage thereof. Attachment and Executions. That none of said partners shall permit or suffer said joint stock, or his share or interest therein, to be in any way charged, en- cumbered, attached, or taken in execution for his own private and particular debts. Bills of Exchange, Promissory Notes, or other Engagements. That none of said partners shall, for his own private use, or for any other purpose than tie immediate use of said partnership, make, draw, sub- scribe, iridoise, or accept any bill of exchange or prom- issory note, or other engagement, in the name of said partnership, or by the means of which said partnership shall become bound, engaged, or liable, nor to pay or apply any such partnership moneys or effects, except on account of said concern, under a penalty of forfeiting treble the amount of such bill, note, or other engage- ment, or the money so paid or misapplied, to the other partners, to be paid by or deducted from the share of gains or capital of the concern of the offending party, and divided between the other partners in the proper, tions that they are entitled to the profits arising from said copartnership business. Decease. That if any or either of said partners shall happen to die during said partnership, then his personal representatives shall become thereby interested in said concern, only until the day of next ensuing said decease, when said partnership concern, as to the part, share, and interest of said deceased partner, but no further or otherwise, shall absolutely cease and deter- mine. That if all said partners shall die during said term said partnership shall absolutely cease and determine, as to all said partners, and the account, division, and par- tition hereinafter mentioned shall be made in the same manner as is therein provided for. Dissolution. That if any or either of said parties shall desire to put an end to said partnership, at the expiration of the third year thereof, he or they, on giving one full year's notice, in writing, to each of the other partners, shall be at liberty to do so, for which purpose such notice shall be repeated at the interval of days, by registered letter, to each of the places of residence and business of the other partners. Said notice shall be deemed and considered to date from the delivery of the second or last of said notices at the post office of the sender. That at the expiration of said notice, or at any subse- quent time therein named, said partnership concern shall absolutely cease and determine as to all said partners, and the same account, division, partition, and payment as is herein provided shall be made. Outside Business. That neither of said partners shall, during this partnership, either by himself or in partnership with any other person or persons, or any other persons or interests, enter into, engage in, or carry on any business or employment distinct and outside of the said concern, without the consent, in writing, of the other partners, having first been obtained for that pur- pose. Provided, however, that said A. B. shall be at liberty to engage in any other concern or commercial undertaking that he may think proper, other than that of a merchant or commission agent, inany of said places in which said partnership business shall be carried on. Profit and Loss. That said parties shall be inter- ested in the joint stock of said partnership concern, and in all gains and profits therefrom in the proportions of their contributions to the capital stock (or in equal pro- portion share and share alike), and all debts, leases, rent, taxes, wages, and all other charges and expenses, incident to said concern shall be borne and paid in the same proportions. Real Estate. That if any real property, lands, tene- ments, or hereditaments shall be purchased with the moneys or effects of said partnership, the same shall be considered and held as the joint property of said part- ners in the proportions hereinbefore mentioned. Releases. Thit none of said partners shall release or discharge any debt owing to said concern, above the sum of dollars, without the consent of the other partners. CONTRACTS. Settlement and Partition of Partnership Ef- fects, etc. That within three calendar months from the expiration of said term of years, or after the determination of said partnership in any of the events m this agreement mentioned, or as soon thereafter as can be, said parties, or their representatives, shall state and adjust a final account, in writing, of all the partnership estates and effects, and thereupon a division or partition thereof shall be made between said part- ners respectively, or their representatives, in such proportions as they shall be fairly and equitably entitled thereto, according to the terms of this agreement, due care being first taken for the payment of all partnership debts. That each of said parties, or his representatives, shall, on the request, and at the costs of the others of them respectively, make unto said others an assign- ment of their respective shares of said estate and effects, which shall be allotted to them, and invest them with full power to collect, receive, and recover the same, and that none of said partners shall afterwards release, dis- charge, or compound any debts or demands which shall have been allotted to the others of them, or their repre- sentatives, without their respective consent, in writing. Yearly Statement. That said partners, respect- ively resident in New York, London, Berlin, and Pans, shall yearly, on the day of , or as near thereby as circumstances will admit, make up a particular state- ment, in writing, of all goods, credits, property, estate, and effects then being in or belonging to said concern, at said places respectively, and of all debts and duties then owing therefrom, and shall transmit the same, or a copy thereof, to each of the other partners by the first oppor- tunity, and shall enter the said statement or account in a book to be kept for that purpose, and subscribe the same, which book shall be kept with the other books of account, and which account shall not be opened or called in question unless an error shall be found therein to the amount of dollars, in any one year. That thereupon said parties respectively shall be at liberty to draw their respective shares of the profits of the preceding year, according to the proportions above mentioned. Subject, nevertheless, to the sums allowed for the entertainment of strangers as aforesaid. Contract Partnership. Retinquishment or Separation of Interest. This agreement made, etc., witnesseth : That said A. B., C. D., and E. F. are partners doing business as , at , under the firm name and style of B., D. & F. That the said E. F., for the consideration here- inafter mentioned, does by these presents, sell, grant, and convey unto said A. B. and C. D. all debts and sums of money which are due and owing unto said parties jointly,- and all his right, title, interest, property, claim, and demand whatsoever, in and to all said debts or any of them, and also all and singular the agreements, bills, bonds, conveyances, judgments, specialties, and writings whatsoever for and concerning the same, all of which are set forth and mentioned in the schedule hereunto annexed, marked "A.," to have and to hold the same unto them, the said A. B. and C. D., forever, with full power to ask, demand, sue for, and recover the same in their own name, or otherwise, and to receive, receipt for, release, compound and discharge any sum or sums of money or other matter in said schedule mentioned. That said E. F. shall not, at any time hereafter, willingly do or suffer any act or thing to hinder, let, or disturb them, the said A. B. andC. D., in the premises, but shall, upon reasonable request upon him, execute, and deliver said parties such other sufficient letters of attorney for the recovery and collection of said debts, etc., as by said parties, or their counsel learned in the law, shall reasonably advise and require. That said A. B. and C. D., in consideration thereof, shall, on or before the day of next, discharge and pay all debts and sums of money as are due and owing by said partnership concern to any and all its creditors, for or by rea- son of their said joint trade and partnership. That said A. B. and C. D. shall, on or before the day of next, obtain for said E. F. suffi- cient general releases and other discharges in law from all creditors whose names are men- tioned and set forth in the schedule, hereunto annexed, marked " B." That said A. B. and C. D. shall at all times hereafter save and keep harmless and indemni- fied said E. F. against all and every person and persons whatever, to whom said parties or either of them are indebted in relation to said partner- ship, and of and from all actions, charges, costs, damages, executions, judgments, and demands whatsoever, which has heretofore, or shall at any time hereafter, arise and come against said E. P., or any of his lands, tenements, goods, chattels, or effects, or any part thereof, for or by reason of any matter or thing respecting or relating to said partnership. In witness, etc. Contract Partnership. Retiring from Business. This agreement, etc., witnesseth : That said A. B. has for some time past been engaged in, and is about to retire from, the busi- ness (or trade) of , at , in . That said C. D. shall continue said business (or trade) under the covenants, restrictions, and agreements hereinafter contained. That an inventory and appraisement has been taken and made of the stock, the value of which is dollars, and fixtures, the value of which ia dollars, and entered in two receipt books, and is subscribed by both of said parties, each of whom retain custody of one of said books. That said C. D. shall during the term of five years (computed from the date of this agreement), if said parties shall live so long, trade with said stock, manage and improve the same, in such manner, however, as said A. B. shall direct: UPON TRUST, NEVERTHELESS, i. To pay and discharge all taxes which now are or shall hereafter be imposed upon said C. D. on account of said house and trade. a. To pay said A. B. or his assigns, yearly and every year during said term of five years, if said parties shall live so long, one clear annuity or yearly sum of dollars, without any abate- ment or deduction whatsoever. 3. To retain the overplus and profits which shall arise from trade and dealing for his own sole use and benefit, as a recompense and satis- faction for his care and trouble in the manage- ment and sale of said stock. And the said C. D., in consideration of the premises, shall apply himself diligently to the care and management of said stock trade and business, according to his best skill, abilities, and discretion, and apply and dispose of the money which shall arise from the sale thereof, and all the profits of his trade and dealings, to answer and discharge the trusts hereby reposed in him. That said C. D. shall make complete and perfect entries in the proper books of account of all goods sold, all moneys paid and received by him, and permit the same to be inspected by said A. B. at all times. That on the day of , of each year during said term, or oftener if required by said A. B., said C. D. shall take a full account of said stock then remaining in trade, and of the profits and sales, and deliver the same to said A. B., and make a true manifest of the condition thereof. That he will not, during said term of five years, buy, sell, or in any manner deal or trade in his own name or that of any person save the said A. B., nor do any act whatsoever whereby said stock or any part thereof shall suffer, or become liable to attachment or execution. That at the expiration of said term of five years said C. D. shall deliver up to said A. B. the stock then remaining, for his own use and benefit, to the value of dollars ; losses by bad debts, de- cay of goods, and other inevitable casualties ex- cepted. In witness whereof, etc. Contract Party Walls. This agreement, etc., witnesseth : That said A. B. is the owner of the lot and storehouse. No. , on street, in the town of . 17 256 CONTRACTS. That said C. D. is the owner of the lot adjoin- ing the same on the north side thereof. That said C. D. is about to erect a brick store- house upon said last-named lot. That in the erection of said storehouse the said C. D. shall use the north wall of the storehouse of said A. B. for the purpose of a party wall. That in consideration of the sum of dollars the receipt of which is hereby acknowledged, the aid C. D., or his legal representatives, shall and may, freely and lawfully, in a workmanlike man- ner, make use of and continue the use of said wall as a party wall forever. That if it shall hereafter become necessary to repair or rebuild any portion of said party wall, the expense of such repairing or rebuilding shall e borne equally by said A. B. an ' id C. D. or their beb representatives or assigns, That whenever said party wall or any portion thereof shall be rebuilt it shall be erected on the same spot where it now stands, and be of the same size, and the same or similar materials, and of like quality, with the present wall. That this agreement shall be perpetua], and at all times construed as a covenant running with the land, and that no part of the fee of the soil upon which the wall of said A. B. now stands shall pass to or be vested in said C. D., his heirs or assigns. In witness whereof, etc. For form of ACKNOW EDCMENT see that title. Contract Party Walls. This agreement, etc., witnesseth : That said A. B. is the owner and in possession of a certain lot (or parcel) of ground situated in , and described as follows, to wit (describing it by metes and bounds). That said C. D. is the owner and in possession of a certain lot (or parcel) of ground situated in , adjoining the property of A. B , aforesaid, and described as follows, to wit (describing it as above). That said A. B. has erected (or is about to erect) on his own premises aforesaid, and along the di- vision line of the above mentioned lots (or prem- ises) a brick building in length, stories high, and from the front of said premises, etc. , etc. That said C. D. , and his legal representatives or assigns, shall at all times hereafter (or thereafter) have the full liberty, right, and privilege of join- ing to said wall, above and below the surface of the ground, and along the whole or any part of the length of said wall any building which he or his legal representatives or assigns may see fit, or have occasion to erect, and for said purpose to sink joists into said wall inches in depth, but no further, and to use and enjoy said wall, or any part thereof, as well as all buildings by them erected. Provided, however, that before proceeding to join any other buildings to said wall, and before making any use thereof, or breaking into the same, said C. D., his legal representatives or as- signs, shall pay, or secure to be paid, to said A. B., or his legal representatives or assigns, one- half value of the said wall, or so much thereof as shall be joined or used as aforesaid (which value shall be affixed and assessed by , or at the rate of dollars per ). In witness whereof, etc. Contract Performance, etc. Limited in Terms and Amount. | This agreement witnesseth : That A. B. shall, etc. (stating what shall be done). That A. B. shall pay said A. B. therefore the nm of dollars, as follows, etc. (stating terms , times, and amounts of payment). That in no event shall this agreement be al- tered, modified, orin anywise or particular varied, except by indorsement thereon by writing an- nexed thereto. (Signed) A. B. Dated . C. D. Contract Performance, etc. Performance for Payment. This agreement, between A. B. and C. D.,made this day of , A. D. , witnesses : That A. B. shall (state what A. B. ihall do). That in consideration thereof, C. D. shall pay said A. B. dollars, as follows (state time, place, number, and amount of payments). (Signed) A. B. C. D. Contract Performance, etc. Performance for Performance. This agreement, between A. B. and C. D. , made this day of , A. D. , witnesses : That A. B. shall (state the subject-matter, or ob- ject of the agreement). That C. D., in consideration thereof, shall (here state what C. D. shall do or perform). (Signed) A. B. C. D. Con tract Pn rch ase. Corefivood. This agreement, etc., witnesseth: That said A. B. shall sell to said C. D. all the cordwood that shall come from all trees now growing and standing on a certain piece of rough ground situated in , and described as follows, to wit (describing it by metes and bounds}. That said A. B. shall permit and suffer said C. D. , at his own cost and expense, to cut said cord- wood and convert it into charcoal in the north- west corner of said land, and for that purpose to use the turf and earth in said corner, but not elsewhere, and thereafter to take and carry away said wood so converted into charcoal from off said premises the most convenient way leading to the road. That said C. D. shall, on or before the day of (or\n charcoal at per bushel, or in cord- wood at per cord, etc., etc.), pay said A. B therefor at the rate of cents per cord for all said wood so cut, to be measured at the cutting thereof, and an account made every during the time the same is being cut and converted as aforesaid. That said C. D. shall commence said cutting on or before the day of , and complete the same on or before the day of , and to have converted the same into charcoal or other- wise, so as to have fully removed from said premises on or before the day of next. Con tract Pa rchase. By Several Jointly. This agreement, etc., witnesseth: That A. B., of , C. D., of , and E. F., of , or some one of them, shall purchase all that tract or parcel of land situated in , in , now owned and in possession of G. H. That if any one or more of said parties shall purchase said land, that each and every one of said parties shall pay his respective proportion of the purchase money. That all charges and expenses shall be borne by each of said parties in equal proportions. That such purchase shall be for the joint and equal benefit of each of said parties (and conveyed in their joint names). That the purchase money for said land shall not exceed the sum of five thousand dollars. In witness whereof, etc. Contract Reassignment. Real Estate Assigned. This agreement, etc., witnesseth : That said A. B. by an agreement with one C. D. (of ), bearing date the day of , agreed to convey to him a certain tract of land situate, etc. (copying the description from tht former agree- ment). That said A. B., by an agreement with said E. P., contracted for the erection of a building on said land for a consideration of one thousand dollars, five hundred dollars thereof to be paid six months from the date of said building con- tract, and the remainder in six months after the completion of said building. That said C. D., by an assignment bearing even date with the day and year of the agreement last mentioned, assigned all his title and interest in and rights under the agreement first above men- tioned to said C. D. as collateral security for the punctual performance of said building contract. CONTRACTS. 257 That if said A. B. shall faithfully perform all his agreements and covenants with said E. F. in and concerning said building contract, then said E. F. shall reassign and set over all the interest he has acquired in said premises by virtue of said assignment from said C. D. That in case of default or nonperformance of any or all the conditions and provisions of said building contract, then said E. F. shall become absolutely seized and possessed of said premises, and entitled to all the rights of said C. D. therein. Provided, however, that if said C. D. shall within thirty days after said default tender said E. F. the amount or amounts due, or performance required, according to said contract, then the said E. F. shall reassign and transfer said premises to said C. D. In witness, etc. Contract Sale. Of Animals. This agreement, etc., witnesseth: That said A. B., for the consideration herein- after mentioned, shall sell and deliver on the day of next, to said C. D., at his store in , one yoke of four year old oxen. That said C. D., in consideration thereof, shall pay said A. B. sixty dollars upon the delivery of aid oxen. In witness whereof, etc. Contract Sale. General Form. This agreement, made this day of , A. D. , between A. B. (of , farmer), and C. D. (of , merchant), witnesseth : That said A. B. (in consideration of the agreement hereinafter contained, to be performed by C. D.), agrees to sell and deliver to the said C. D., at his storehouse in (here specify the goods, their quantity and quality), on or before the day of , A. D. . That said C. D. (in consideration thereof) agrees to pay to the said A. B. the sum of dollars per for the said , immediately upon the completion of the delivery thereof. Witness our hands, this day of , A. D. . A. B. C. D. Contract Sale. Bond and Mortgage. This agreement, etc., witnesseth : That said A. B. and his wife W., on the day of , executed a mortgage and a bond bearing even date therewith, to said C. D.,for the pur- pose of securing the payment of the sum of four hundred dollars, in four years from the day of , with interest annually, from the date first aforesaid. That said mortgage was duly recorded in the office of the clerk (recorder, or register of deeds), of county, in book 10 of mortgages, at pages 512 and 513, on the day of , at o'clock A. M. That said C. D., for the consideration hereinaf- ter mentioned, shall sell, transfer, assign, and set over to said E. F. said mortgage and bond ac- companying the same, together with all the said C. D.'s title and interest in and rights thereunder when the payments hereinafter specified shall have been made. That said E. F., in consideration of the prem- ises, shall pay or cause to be paid unto said C. D. the sum of four hundred dollars, in the manner following, viz.: fifty dollars upon the execution and delivery of this agreement, and three hun- dred and fifty dollars in two equal annual pay- ments from the date hereof, with per cent. interest. That if said E. F. shall, at any time prior to said times agreed upon, elect to pay the whole sum agreed to be paid, with legal interest there- on, he shall have the right so to do, and said C. D. shall immediately, upon said payment, trans- fer, assign, and set over unto said E. F. the bond and mortgage aforesaid. In witness whereof, etc. Contract Sale. Coal. This agreement witnesseth : That A. B., for a consideration hereinafter men- tioned, shall sell and deliver to C. D., free of all cost, charge, and expense, one thousand bushels of coal, from time to time, from the day of unto the day of , in such quantities and at such times as said C. D. shall require, the whole to be delivered on or before the last named date. That C. D., in consideration thereof, shall pay unto said A. B. therefor the sum of per bushel, one-half to be paid in such goods, wares, and merchandise as are manufactured and sold by said C. D., and the remaining half in cash, on or before the last mentioned date. In witness whereof, etc. Con t ract Sal e. Goods at Appraised Value. This agreement, etc., witnesseth : That said A. B. shall, for the consideration here- inafter mentioned, sell and convey unto said C. D. all and singular the household goods, furniture, fixtures, stock in trade, chattels, and effects con- tained in and belonging to the dwelling and store now occupied by said A. B., at , in (as per schedule hereunto annexed). That said goods, furniture, fixtures, stock in trade, chatties, and effects shall be appraised by E. F. and G. H. (or any other two disinterested per- sons chosen one by each of said parties), and in case they differ in such appraisement, then a third in- different person, chosen by them, shall determine the same, and their valuation, with its differences adjusted by said person, if delivered in days, in writing, shall and will be taken as the value of the same. That said A. B., immediately upon such valua- tion being made, shall make and deliver an abso- lute bill of sale of all said goods, furniture, fix- tures, stock in trade, chattels, and effects, and give possession thereof to said C. D., at the price the same shall be appraised at as aforesaid. That said C. D., in consideration thereof, shall accept said property at said price and on the de- livery of said bill of sale, and shall pay said A. B. a sum of money at which said property i ap- praised as aforesaid. In witness, etc. Contract Sale. Of Goods in Store. This agreement, etc., witnesseth : That said A. B., in consideration of the cove- nants hereinafter contained, will purchase of said C. D. all his stock of goods, wares, and mer- chandise now being in his store, in the town of , together with all the fixtures thereto be- longing, an account of the same to be taken by the parties hereto in the presence of each other. That said A. B. shall pay for the same at the invoice price, saving such of said goods as are damaged. That all damaged goods and the fixtures afore- said shall be valued by two disinterested persons, one of whom is to be selected by each of the par- ties to this agreement, and said A. B. shall pay for the same the value or price that said apprais- ers may agree and put upon them as a fair val- uation of the same. That said A. B. shall, within five days after the value of said goods, wares, merchandise, and fix- tures is ascertained as aforesaid, pay a sum equiv. alent to said value to said C. D. That said C. D.,in consideration thereof, agrees, to sell and deliver said A. B. said goods, wares, merchandise, and fixtures as aforesaid, and make, execute, and deliver to said A. B. a good and suf- ficient bill of sale and conveyance thereof, upon' receipt of said last mentioned sum. In witness whereof, etc. Contract Sale. Of Goods in Grocery Start. This agreement, etc., witnesseth: That said A. B. shall sell to said C. D., and said C. D. shall buy of said A. B., all the stock of goods and groceries, wares, and merchandise be- longing to said A. B., and now in the grocery store occupied by him, on lot No. , on tht CONTRACTS. corner of and streets, in the town of , together with all furniture and fixtures therein ; and also all goods, wares, merchandise, grain, meats, vegetables, and produce of every name and nature bought or contracted for by the said A. B. and intended for sale in said grocery. That the stock of goods, wares, and merchan- dise is to be inventoried to said C. D. at the orig- inal cost, without including transportation ex- penses, deducting any depreciation on account of damage, wear or tear. That the furniture and fixtures shall be inven- toried at their fair cash value by the parties to this agreement, and if they cannot agree as to such valuation, or the deductions aforesaid, the lame shall be determined by the appraisal of . F., G. H., and I. K., or any two of them. That the grain, meats, vegetables, and produce hall be invoiced at their original cost. That said invoices and inventories shall be com- pleted within ten days from the date hereof, and the property above specified thereupon immedi- ately delivered to said C. D. That said C. D., in consideration of said prem- ises, shall execute and deliver said A. B., in lieu c>f the purchase money for said property, and in lull payment therefor, his promissory notes, in such several sums as said A. B. shall direct, pay- able at the bank, , six months after date, with interest at the rate of per cent, per an- num, etc., etc. (and indorsed by E. F., of , etc.) That said A. B. shall not, at any time hereafter, engage directly or indirectly, or concern himself in the carrying on or conducting the grocery busi- ness within one mile of the said premises. That the stipulations aforesaid are to apply to and bind the heirs, executors, and administrators &f the respective parties, and in case of failure aid parties bind themselves each to the other in the sum of dollars, as fixed and settled dam- ages, to be paid by the failing party. In witness whereof, etc. Contract Sale. Of a Horse. This agreement, etc., witnesseth: That said A. B. shall sell to said C. D., and said C. D. shall purchase of said A. B., his dark bay torse, etc. (adding other points of description), and to warrant said horse to be well broken, kind, and gentle, both under the saddle and in single and double harness, to be sound in every respect and free from every vice, for the sum of one hun- dred dollars, to be paid by said C. D. on the day of next, when said horse shall be deliv- ered to said C. D. In witness whereof, etc. Contract Sale. Real Estate. This agreement, etc., witnesseth : That A. B. (of ), in consideration of the sum of dollars now paid, and dollars to be Said when a deed is executed, shall, on the ay of next, sell and convey unto C. D. (of ), his heirs and assigns, real estate situated in and described as follows, to wit : (describing it), together with all the appurtenances thereunto belonging. Dated . (Signed) A. B. C. D. Contract Sale. Real Estate. This agreement, etc., witnesseth : That said A. B., for the consideration hereinaf- ter mentioned, shall, by good and lawful deeds, well and sufficiently grant, bargain, sell, convey, and assure unto said C. D., his heirs and assigns, in fee simple, free of all incumbrances, all that part and parcel of land situate in , and bounded and described as follows : (here describe the prem- ises by metes and bounds). That said C. D., in consideration thereof, shall well and truly pay or cause to be paid to said A. B., his executors, administrators, or assigns, the um of dollars, in the manner following, viz. : dollars on the execution of this agreement. dollars on the day of next. dollars on the day of next. The remaining dollars on the day of next. That said sums of money unpaid shall bear in- terest at the rate of per cent, per annum from date until paid. That the payment of said several sums of money shall be a condition precedent to the exe- cution and delivery of the deeds of conveyance aforesaid. In witness, etc. Contract Sale. Real Estate. This agreement, etc., witnesseth : That said A. B., for the consideration herein- after mentioned, shall sell and convey to said C. D. all that part and parcel of land situated in , as known and designated on the recorded plat of said , as, etc. (describing it according to the record). That said A. B. shall execute and deliver to said C. O. a warranty deed containing the usual cove- nants of warranty, that said premises are free, clear, and discharged of and from all and every incumbrance whatsoever. That said C. O., in consideration thereof, shall pay said A. B. the sum of dollars, as fol- lows : dollars upon the execution and delivery of said deed. dollars, payable at , on the day of next. dollars, payable at , on the day of next. Said payments to be secured by promissory notes for the same, bearing interest at the rate of per cent, per annum, which notes shall be secured by a mortgage on said premises. That if any default be made in fulfilling this agreement, or any part thereof, said A. B. or his legal representatives may consider this agree- ment of no effect and annulled, and dispose of said land or otherwise, as though this agreement had never been executed. In witness, etc. Contract Sale. Real Estate Farm and Mill Property. This agreement made, etc. , witnesseth : That said A. B. shall, for the consideration hereinafter mentioned, grant, sell, and convey unto said C. D., his heirs and assigns forever, the following described real estate, situated in , in county, and State of , described as fol- lows (describing the same by metes and bounds). To have and to hold the same, together with the tenements, buildings, and their appurte- nances, goods, chattels, and effects, as follows, to wit : One dwelling-house (describing it) , together with all furniture, fixtures, apparel, etc., described in the schedule hereunto annexed, marked "A." One grist mill (describing it), together with all tools, machinery, fixtures, furniture, etc., described in the schedule hereunto annexed, marked " B." One saw mill (describing it), together witn all the tools, etc. (as above). One woollen mill (describing it), together with all the tools, etc. (as above). And also all the goods, chattels, and effects, growing crops, farm utensils, etc., etc., described in the schedule hereunto annexed, marked " E." That said C. D., in consideration thereof, shall, pay said A. B. the sum of dollars, as follows^ dollars upon the execution of thi agree- ment. dollars, payable at , on the day of next. dollars, payable at , on the day of next. Etc., etc. That all said deferred payments shall be evi- denced by the promissory notes of said C. D., bearing interest at the rate of per cent, per annum from date until paid. That said notes shall be 'secured by a mort- gage given by said C. D. to said A. B. upon said premises. CONTRACTS. 259 That said premises shall in the meantime be kept fully insured, at the cost and expense of and by said C. D., in good and responsible companies, to be approved by said A. B., to whom the poli- cies thereon shall be forthwith assigned. That said C. D. shall take possession of said premises on the day of next. In witness, etc. Con 1 r;i<- 1 Sa I . Real Estate in Fee. This agreement, etc., witnesseth : That said A. B., in consideration of the sum of dollars, to be paid as hereinafter mentioned, shall, on or before the day of next en- suing, well and sufficiently grant, sell, release, convey, and assure unto said C. D., his heirs and assigns, all that tract or parcel of land situated in , etc., and described as follows, to wit {de- scribing it by boundaries). That said conveyance shall be at the costs and charges (excepting only counsel fees) of said C. D., and by such conveyances and assurances as he or nis counsel may reasonably require, and shall con- tain the usual covenants that said premises, at the time of such conveyance, are free from all de- mands and incumbrances whatsoever (except, etc.), and all other usual and reasonable covenants. That said C. D.,in consideration thereof, shall well and truly pay or cause to be paid unto said C. D., his heirs, executors, or administrators, the aforesaid sum at the time of executing said con- veyance. In witness, etc. Contract Sale. Real Estate Private Contract. This agreement, etc., witnesseth : That said A. B. shall, on or before the day of next, on the receipt of the sum of dol- lars, and at the costs and charges of the grantee, convey unto said C. D., by deed, with a covenant of general warranty and against incumbrance, and with other usual covenants and agreements, all that tract or parcel of land situated in , and described as follows, to wit (describing it). Thatsaid C. D.,on the execution of said convey- ance, shall pay said A. B. the sum of dollars. That said conveyance shall be prepared at the expense of said C. D., to the approbation of the respective counsel of said A. B. and C. D. That all taxes and expenses in respect to said premises in the meantime shall be paid by said A. B. That if said conveyance shall not be executed and the purchase money paid on or before the day of , then said C. D. shall pay interest for the same from said last-mentioned day unto said A. B. at the rate of per cent, per annum until said sum is paid. In witness, etc. Con tract-Sale. Real Estate Remainder or Reversion. This agreement, etc., witnesseth : That said A. B. , for the consideration herein- after named, shall sell to said C. D. the remain- der or reversion in fee which will take effect upon the death of E. F. in all that part or parcel of land situated in , and described as follows, to wit (describing it by its surveyed boundaries). That said A. B. shall, within days from the date hereof, make and deliver to said C. D. an abstract of the title of said premises. That said A. B. shall on the day of next, and on receiving from said C. D. the sum of dollars, and at the costs and charges of said grantee, execute a good and sufficient con- veyance to the said C. D. in fee of the remainder and reversion aforesaid. That said conveyance shall be prepared at the expense of said A. B. , and that the same shall be settled and approved by said parties and their re- spective attorneys or solicitors, and that each of aid parties shall pay the fees of his own attorney, conveyancer, counsel, or solicitor. In witness, etc. Con tract Sale. Real Estate By Warranty Deed, Damages Fixed. !}* Agreement for Purchase of Real Property, belowr, and title BOTOJ FOR DEED, post. This agreement, made this day of , A. D. , by and between A. B., of county, in the State of , of the first part, and C. D., of county, in the State of , of the second part, witnesseth : That said party of the first part, for the consid- eration hereinafter mentioned, covenants and agrees to sell and convey unto said party of the second part, his heirs and assigns, all the follow- ing described real estate situated in the county of , and State of , to wit (describing if). That said party of the second part, in consid- eration thereof, covenants and agrees to pay unto the said party of the first part, for the same, the sum of dollars, as follows (stating the time place, number, and amount of payments). That said party of the first part, on receiving said sum and sums of money, at the time and in the manner aforementioned, shall, at his own ex- pense, execute and deliver to said party of the first part, a good and sufficient warranty deed, conveying (and assuring) unto said party of the second part (an indefeasible estate of inheritance, in fee simple, of and in) all and singular the above de- scribed premises, with the appurtenances, and warrant that the same are free (clear, discharged, and unincumbered of and) from all (former and other grants, titles, charges, estates, judgments, taxes, assess- ments and) incumbrances, of whatever nature or kind soever. That said party of the first part is to retain pos- session of said premises until the day of , A. D. , when the same shall be delivered up to said party of the second part, upon his com- pliance with the agreements hereinbefore con- tained : That said party of the second part shall pay all taxes or assessments becoming chargeable to or upon said premises after delivery of possession thereof as aforesaid. , That if default be made in fulfilling this agree- ment, or any part thereof, by or on behalf of said party of the second part, this agreement shall, at the option of said party of the first part, be forfeited and determined, and said party of the second part shall forfeit all payments made by him on the same, and such payments shall be re- tained by said party of the first part in full satis- faction, and in liquidation of all damages, by him sustained, and he shall have the right to re-enter and take possession of said premises. That all covenants and agreements herein con- tained shall extend to and bind the respective heirs, executors, administrators, and assigns of said parties. In witness whereof, etc. A. B \Witmsst*.\ C. D Contract Sale. etc. Real Estate With Stipulation. This agreement, etc., witnesseth : That said A. B., in consideration of the v /. of dollars, to be paid him by said C. f?.., at or before the delivery of this agreement, and the further sum of dollars, to be pc.id au hereinafter mentioned, does hereby (for hiniself. his heirs, executors, and administrators) agree with C. D. (his heirs, executors, and administrators) that he will at his own (or said C. D.'s) costs and charges (except fees of counsel), on or before the day of next, grant, bargain, sell, convey, release, and assure to said C. D. and his heirs (or to whom he shall appoint or direct) all that tract or parcel of land situated in , in the State of , with covenants, to be therein contained, that the said premises, at the time of such conveyance, are free from all incumbrances and demands whatsoever (excepting, etc., stating -what), and all other usual and reasonable covenants. That said C. D. (for himself, his heirs, executors, and administrators) agrees with said A. B. (his heirs, executors, and administrators) that said sum of dollars shall (well and truly) be paid at the time CM executing said conveyance. (That for the true and faithful performance of all an.', every covenant and agreement aforesaid, aaid partioi bind themselves, their heirs, executors, and adminis- trators, each to (he ther in the penal su 7 i. 1 o J r oz. j I a V "u = c a 8 i iniSlii ; o t *?!^ K a 0, fa PU ^ H ^j Cfl ? Sunday, Monday, Tuesday, Wednesday, _ Thursday, Friday, Saturday, Substitutes. One ounce of coffee, or cocoa, or chocolate may be 262 CONTRACTS. substituted for one-quarter ounce of tea, molasses for sugar, the quantity to be one-half more ; one pound of potatoes or yams , one-half pound of flour or rice ; one- third pint of peas or one-quarter pint of barley, may be substituted for each other. When fresh meat is issued, the proportion to be two pounds per man, per day, in lieu of salt meat. Flour, rice, and peas, beef, and pork may be substituted for each other, and for potatoes onions may be substituted. General Conditions. And the said crew agree to conduct themselves in an orderly, faithful, honest, and sober manner, and to be at all times diligent in their respective duties, and to be obedient to the lawful commands of the said master, or el any person who shall lawfully succeed him, and of their superior officers, in everything relating to the said ship, andthestores and cargo thereof, whether on board, in boats, or on shore, by night or by day; and in con- sideration of which service to be duly performed, the said master hereby agrees to pay to the said crew, as wages, the sums against their names respectively ex- pressed, and to supply them with provisions according to the annexed or above scale. And it is hereby agreed, that any embezzlement or wilful or negligent destruc- tion of any part of the ship's cargo or stores shall be made good to the owner out of the wages of the person guilty of the same. And if any person enters himself as qualified for a duty which he proves himself incompe- tent to perform, his wages shall be reduced in proportion to his incompetency, said incompetency to be decided upon by the shipping commissioner. And it is also agreed, That if any member of the crew considers him- self to be aggrieved by any breach of the agreement or otherwise, he shall represent the same to the master or officer in charge of the ship in a quiet and orderly man- ner, or to the said shipping commissioner, who shall thereupon take such steps as the case may require. And it is also agreed. That we, the said mariners, are to load and discharge the cargo if required. (Here any other stipulations may be inserted to -which the parties agree, and which are not contrary to /aw.) No sheath knives nor grog is allowed, and none to be brought on board by the crew, and if any liquor is found secreted on the person of, or among the effects of the crew, the same is to be disposed of as the master may direct, and no profane language is permitted on board. Description. Wages Wa zes 1 u o i Height. ^ per Month. per Run. a. 3. 1 i 8 1C H * Ft. In. o W X J 1 C $ c i.S. F, a. M.N. 3. Etc. _ ^ - . , Advance Wages. II II HI &^ Money Advanced Abroad. * c Mo. E>s. $ | c i c $ c $ c ^- ' - _ e . . g D *J O 3! Place and Time of Entry .2 c o u a|i IJ ra " H svz ^ >, o^ . w 2 ^^ 9 5i UO 1 Place. Time Etc. p-6 N. H. 164 ; 4 Id. 533 ; 5 Pick. 506 ; 9 Vt. 289 Id. 48 ; 5 Hamm. 58 ; n Mass. 114; 2 Pick. 579 ; Yt. 189; 6 Md. 113; ao Penn, Sf. 260; 9 Barb. 202 ; 2 24 10 Contract Subscription. Subscription is the placing of a signature at the bot- tom of a written or printed engagement. It is the act by which a person contracts, in writing, to furnish a sum of money for a particular purpose ; as, a subscrip- tion to a charitable institution, a subscription for a book and the like. When several promise to contribute to a common ob- ject, desired by all, the promise of each may be a good consideration for the promise of others. P In general, subscriptions on certain conditions in favor of the party subscribing, are binding when the acts stipulated are performed.? Place , Date . We, the undersigned, agree to pay th amountc set opposite our names, to (naming the person or corporation, as A. R.,or the trustees of ihe church, in , etc.], for (here state the object or thing, as a , or the erection of a house of worship for said church, at -, etc. Subscribers. Subscribers. Contract^Towins; Boats. This agreement, etc., witnesseth : That said party of the first part, in considera' tion of the covenant hereinafter contained, shall provide suitable teams, with safe and skilful drivers, and tow the boats belonging to said party of the second part regularly plying between and , and not exceeding in number during the entire season of navigation, to com- mence on the instant. That said party of the second part, in consider- ation of the premises, shall pay or cause to be paid to said party of the first party, for each and every running trip so made by their boats, as aforesaid, the sum of dollars. That two boats of said party of the second part shall leave on the day of , and three shall leave on the day of , provided the canal shall be navigable at those times, and if not so navigable then as soon thereafter as it shall become so. That at the times of departure from or during the remainder of the season of navigation shall depend upon the convenience cf said party of the second part, with the proviso, however, that not more than boats shall leave either end of the route, or more than boats pass any station on the same during any period oT twenty-four hours. That when said boats are laden to the burthen of tons they shall be towed at the rate of miles per hour, running time. When light, car- rying not more than tons freight, they shall be towed not less than miles per hour, as aforesaid. That said party of the second part shall furnish and provide the drivers employed by said party of the first part with suitable meals or board, at regular hours, relieving them in the charge of their teams at such times by one of the hands CD - gaged on said boats. That whenever any boat of said party of the second part is detained on account of the care- lessness or negligence of the agents, drivers, or servants of said party of the first part, a deduction shall be made from the compensation of said party of the first part, as aforesaid, at the rate of dollars per hour during the time of each de- tention, except after the first day of October next, such deduction shall be dollars per hour. That said party of the second part shall pay said party of the first part, or to their regular!'' authorized agent or agents, the sum of do lars compensation, to be paid as aforesaid on the day of each and every month during the sea- son of navigation, subject, however, to all neces- sary deductions on account of detentions, as aforesaid. That within days after the final close of navigation said patties, by themselves or their Id. 309 ; 9 Gratt. 633 ; 3 Seld. 349 ; 2 Denio, 403, S. C.; i Comst. 581; 2 Carter, 555; 37 Penn, St. 210. <|-i* Pick. 541. CONTRACTS CONVEYANCES. 263 agents, shall meet at the office of said party of the second part and examine, close, and settle their respective accounts, and pay and fully discharge all balances which may be found due or owing upon such examination and settlement by reason of the premises. In witness whereof, etc. 011 1 ract Wor k . General Form. This agreement, etc., witnesseth : That said A. B. shall execute and perform in a thorough and workmanlike manner the following work, viz.: (describing it}. That said A. B. shall be responsible for all ma- ferials delivered and receipted for. ' That said work shall be commenced on the jjay of , and be completed on the day of , , and delivered free from all mechanics' or material men's or other liens, on or before the day of , at . That said C. D. shall pay said A. B. therefor the sum of dollars, as follows. That in case of any disagreement in reference to the performance of said work, all questions of disagreement shall be submitted to E. F., G. H., and I. K., the award of whom or a majority of them shall be final and binding upon all parties. In witness whereof, etc. Contractors. See CONTRACTS. Controversy. See PRACTICE. Contusion. See MEDICAL LAW. Convention. See LEGISLATION. Conversion. See PRACTICE. CONVEYANCES. See ACKNOWLEDGMENT; AGENCY; ASSIGNMENTS; ATTORNEYS; CONTRACTS. Abstracts of Title are brief accounts of all the deeds upon which titles rest, and judg- ments and instruments affecting such titles. A synopsis of the distinctive portions of the vari- ous instruments which constitute the muniments of title.' The evidences of title are usually convey- ances, wills, orders or decrees of courts, judg- ments, judicial sales, sales by officers appointed by law, acts of the legislature and of Congress. b CONVEYANCES. The abstract of convey- ances should show : 1. Date. 2. Character (whether an absolute or condi- tional conveyance ; as, in fee, mortgage, or a lease). 3. Names and residence of parties, and if executors, administrators, guardians, trustees, corporations, officers, or the like. 4. All recitals which materially affect the title. 5. The testatum clause. This part of the conveyance embraces : I. Name of grantor. 2. Name of grantee and words of limitation ; as, to " C. D., his heirs and assigns," or, to " C. D. and his as- signs," or, to " C. D. and E. F., and the heirs of C. D." 3. The consideration. 4. The de- scription of the premises or parcels. This is generally done by giving the premises at large in the abstract of the hrst conveyance, and in 'subsequent conveyances to note each variation. 5. The habendum carefully and accurately stated. 6. The declaration of uses, trusts, limitations, or special agreements, if any. 7. Powers. If a settlement is made in pursuance of articles, or an appointment by virtue of a power, an inspection should be made of the articles or power. A deed executed by attor- H-See Preston Abstracts ; Curwen Abstracts ; Oliver's Conveyancing; WhartoR Djct. 2d Lond. d. fo-j ney should be produced with evidence that the power of attorney was recorded, and that the principal was alive when the deed was exe- cuted. 8. Covenants which may affect the ven- dee, and especially exceptions against incum- brances. 9. By what parties the deed is executed, the fact of signing, sealing, attesta- tion and acknowledgment, and recording, as required by statute. If any of the deeds in the chain of title ar quit-claim, the reason therefore should be as- certained. WILLS. In abstracting wills it is necessary to consider : 1. The date of the testator's death. 2. The court in which the probate is made. The date of letters testamentary, and any change in the executors or administrators, by death, re- moval, or otherwise. 3. Any charge imposed by the payment of debts, legacies, etc. 4. The persons to whom the lands are de- vised. 5. Words of limitation, modification, condi- tions, charges on the devisee, etc. 6. Facts which operate a partial revocation of the will ; as, the birth of a child, or the subsequent alteration of the estate inconsistent with the terms of the will. Codicils should be given in the order of their dates. ORDERS OR DECREES. Orders or decrees material to the title should be abstracted. JUDGMENTS. A party claiming title to real estate under an execution must show: 1. A valid judgment. 2. A levy and sale as required by law. 3. A deed. The sheriff's deed must, in gen- eral, recite the substance of the execution, the names of the parties, the action, the amount, and the date of the rendition of the judgment by virtue of which the estate was sold, and be executed and acknowledged as required by law. Judicial sales made by officers, executors, administrators, guardians of minors, lunatics, etc. : 1 . Must be examined for the appointment and authority of the person making the sale, and whether his authority continued in force till the sale. 2. The service of summons, notice, or other process, upon all defendants, or persons inter- ested. 3. The appointment of guardians ad litem for minors when necessary. 4. The order of sale and its confirmation. 5. The deed. Other sales include those by assignees or commissioners of insolvents, or assignees of bankrupts, and tax sales. In the latter case, the proper records should be examined with the utmost care, in order to detect any omission or defect in compliance with all the requisitions Western Law J. (N. S.) 91^-346. c-Jd. citing J Pres- ton Abstracts, 109, 264 CONVEYANCES. of the statute ; in ihe former case, the leading points are the authority of the assignee, etc., the order of sale and its confirmation, and the deed. Acts of the legislature may be considered in the same manner as private conveyances. The abstract should show : 1. The date of the act. 2. The title of the act. 3. The recitals of the act. 4. The enacting clause in its own terms. 5. A strict compliance with the terms of the act. TITLES BY DESCENT. In the absence of deeds, pedigree should be ascertained, authen- ticated, and incorporated. INCUMBRANCES. Incumbrances may be as follows : 1. Judgments in the county where the land lies. 2. Judgments in the United States courts. 3. Executions from other counties. 4. Mortgages. 5. Liens of the creditors of deceased per- sons. 6. Dower. 7. Decrees in chancery. 8. Action pending. 9. Taxes. 10. Mechanics' liens. 11. Lien of executor, administrator, guar- dian, or agent, who pays taxes upon the estate. 12. Leases. 13. Equity of a vendee in possession. 14. Lien of a vendor for purchase money. 15. Caveats in case of a contested will. 1 6. Rents assigned in lieu of dower. 17. The levy of a distress warrant upon the property of certain debtors of the United States. 4 ABSTRACT OF TITLE FORMS. Abstract of Title General Form. Abstract of title of lot No. , on street (or avenue), in , in county, State of , or of the northwest quarter section , range , township (east or west of the meridian), in county, State of . i. The United States of America to : Patent dated , filed , recorded in vol. of the records of , conveys said lot (or par- cel of land) to . a. to . Warranty deed , filed , recorded in vol. of the records of , acknowledged before , a (title of the officer) of county, State of 3. to , etc., partition, etc., describing as above. 4. to , etc., tax deed, etc., mortgage, etc. 5. to , etc., judgment, etc. 6. Etc., etc. State of , county, ss. I, the undersigned, certify the foregoing to be a /ull, true, and complete abstract of the record of all conveyances and instruments affecting the property therein described, as the same appears upon the records of said county, the circuit and district courts of the United States for the dis- trict of , and the court of said county ; and that no judgment, tax, mechanics' or other liens of record in said county (except, etc.) exist Against said property. In testimony whereof, I have hereunto set my l-Acts Congr March 3, 1795: May 15, 1830, hand (and seal), the day of , A. D. . ( Date. ) (Signature.) Abstract of Title General Form. Abstract of title of lots Nos. and , n street (or avenue), in , in county, State of , from the day of unto the day of . Title assumed by consent of parties, good unto the date of the first records thereof. First record, and in fee, with general warranty, from A B. to C. D., consideration , executed and ac- knowledged, is made the day of , in vol. , p. of deed record, No. , of county aforesaid. Deed. General warranty, from C. F. to E. F., consideration , executed and acknowledged -% recorded , in vol. , p. of deed record, Not , of said county aforesaid. Deed. Special warranty, from E. F. and W. his wife to G. H., consideration , executed and ac- knowledged (wife being separately examined) , recorded , in vol. , p. , of deed record, No. , in said county. Agreement to sell, convey, aad warrant, from G. H. and W. his wife to I. K., consideration , executed and duly acknowledged , recorded in vol. , p. , conveyance record "A." of said county. G. H., died , leaving W., his said wife, and four minor children, C., L., D.} and N. G. N. appointed and qualified guardian of said chil- dren. Order of probate court of said county to said guardian to convey said premises in conformity with said agree- ment. Guardian's deed from G. N., guardian of C., L., D., and N., minor heirs of G. H., deceased, to I. K., consideration , executed and acknowledged , recorded in vol. , p. , of deed record, No. , of said county. Conveys all estate of deceased free from his allow- ances, debts, etc. Subdivided into lots by I. K., surveyed by S. R., surveyor of said county, and numbered from to inclusive, and plat recorded in vol. , p. , of deed record, No. , of said county. 'Will of I. K. devises lots, numbered from to , and to , and to inclusive, to J K., L. K., and M. K., his sons, and lots numbered , to his wife W. Will proved , and recorded in vol. , p. , of record of wills in the office of , in said county. Deed from E. X. and T. R., executors of said will, for lots numbered from to , and to , and to , as designated on the recorded plat of said subdivision, to J. K., L. K., and M. K., executed and acknowledged , recorded in vol. , p. , of deed record, No. , of said county. Deed with covenants of warranty from J. K., L. K., and M. K. to N. O., of lots numbered to , and to . and to inclusive, as designated on said sub-division, consideration . executed and acknowledged , and recorded in vol. , p. of deed record No. , of said county. Mortgage from N. O. and W. his wife to P. Q. of lots numbered to , and to , and to , inclusive, as known and designated in said sub- division, to secure the sum of , payable , ex- ecuted and acknowledged , recorded in mortgage record No. , of said county. Declaration (complaint, or petition) of P. Q. for fore- closure filed . Answer of N. O. and W. his wife, filed . Replication (or reply) of P. Q., filed . Judgment of foreclosure and order for sale decreed Appeal taken to court . Judgment of court below affirmed, . Sale made under order of court, on the of- -day Report of sale of said lots to R. S. or the sura of , filed and approved and deed ordered made . Deed by S. F., sheriff of county aforesaid, con- veying said lots to R. S. Consideration , executed and acknowledged , recorded in deed record No. , of said county. Escheat of said lots to the State of aforesaid, fte day of , by death of said R. S., he being M alien. CONVEYANCES. Affidavit of A. A. annexed, that said R. S. was un- married at the date of his death. An Act entitled "An act to release the interest of the people of the State in lots numbered from to , and to , and to , inclusive, in , in county, as known and designated as the sub-division of said , conveyed by S. F., sher- iff of said county, to R. S., and which escheated on his death to his son S. S. Approved (or passed )." Laws , p. . Releases all the estate, right, title, and interest of the people of this State acquired by es- cheat upon the death of said R. S. in and to said prem. ises to his son S. S. Deed, general wairanty with full covenants from S. S. and his wife, conveying said lots to T. U. Consideration , executed and acknowledged (wife separately ex- amined) , recorded in deed record No. , of said county. Etc., etc. Opinion concerning title to said lots, numbered from to , etc. From an examination of the transfers above mentioned I am of the opinion: That all said transfers and the acknowledg- ments thereof have been duly and legally made (excepting only, etc.) That no incumbrances attach at this date upon aid premises (except, etc., stating -what, if any- thing). That said T. U. is seized of an indefeasible estate in fee simple in said premises (subject only to, etc., stating what, if anything). That, etc. Date . (Signature of Conveyancer, or Counsel.) ASSIGNMENTS. See that title, anlz. CONVEYANCES are transfers of the title of land from one or more persons or corporations to another or others. It is the instrument of writing for effecting such transfer. Absolute conveyances of real property* are either original (primary) or derivative (second- ary). Original conveyances are by exchange, feoffment/ grant, lease, and partition. Second- ary conveyances are by assignment, confirma- tion, defeasance, and surrender. See these titles, below. Conditional conveyances of real property are by mortgage. See MORTGAGE, below. Conveyances deriving their force from stat- utes of uses are : Bargains and sale, covenants to stand seized, deeds to lead or declare the uses of other more direct conveyances, deeds of revocation of uses, and lease and release.* Conveyances by matter of record are : By common recovery, by fines, by grants (as by patents) of lands, and by private acts of the legislature. Derivative (or Secondary} conveyances are those which presuppose some other conveyance precedent, and only serve to alter, confirm, en- large, restrain, restore, or transfer the interest granted by such original conveyance. 11 Fraudulent conveyance is a conveyance the object, tendency, or effect of which is to defraud another, or the intent of which is to avoid some e-i N. Y. 290, 294. f-Gifts of corporeal heredita- ments by transmutation of possession, Walk. Conv. 183. K-iz Washb. R. Prop. 600 etseq. h-2 Sharsw. Bl. Comm. 324.* i-2 Kent. Comm. 440; 4 Id. 462. J-a Gray, 447. k-6 Watts, 420, 453 ; 5 Binn. 109 ; i Yeates, 291 ; 3 W. & S. 255; 4 Ired. 102; 9 Pick. 93 ; 20 Id. 247,354; i Ohio, 469: 2 South. 738; 2 Hill (S.C.) 488; 7 Johns. 161 ; i W. Bl. 262. 1-2 Sharsw. Bl. Comm. 310 ; i Stephen Comm. 466. m-s Day, 223, 341 ; i Johns. Cas. 161 ; 4 Johns. Ch. 450; 3Conn.45o; 4 Id. i ; f Johns. 536 ; 15 Id. 14 ; 9 Munf. 363. n-8 Wheat. 239 ; duty or debt due by or incumbent on the party making it.* All conveyances made with intent to defraud creditors are void. Voluntary conveyances are not so construed, where the subsequent pur- chaser has notice, especially if there be a good consideration J But although such conveyances are void as regards purchasers and creditors, they are valid as between the parties.* Original (or Primary) conveyances are those by which the benefit or estate first arises or is created, as by gift, grant, lease, exchange, par- tition, etc. 1 Voluntary conveyances are transfers of es- tate made without any adequate consideration of value. Whenever a voluntary conveyance is made, a presumption of fraud properly arises. This presumption may be repelled by showing that the transaction on which the conveyance was founded virtually contained some conventional stipulations, some compromise of interests, or reciprocity of benefits, that point out an object and motive beyond the indulgence of affection or claims of kindred, and not reconcilable with the supposition of intent to deceive a purchaser. But unless so repelled, such a conveyance, coupled with a subsequent negotiation for sale, is conclusive evidence of a statutory fraud. ra A distinction is made between previous and subsequent creditors ; such a conveyance is void as to the former, but not as to the latter." And a conveyance by a father who, though in debt, is not in embarrassed circumstances, who makes a reasonable provision for a child, leaving prop- erty sufficient to pay his debts, is not per te fraudulent. Gifts of goods and chattels, as well as of lands, by writing or otherwise, made with in- tent to delay, hinder, and defraud creditors, are void as against the person to whom such frauds are prejudicial^ As between the parties such conveyances are in general good.i And when it has once been executed and delivered, it cannot be recalled, even where an unmarried man executes a vol- untary trust deed for the benefit of future chil- dren; nor can he relieve himself from a provi- sion in the conveyance to the trustee under which the income of the trust properly is to be paid to him in the discretion of a third person. 1 ACKNOWLEDGMENT. See that title, ante, where the precise legal requisites and practical forms in general use in each of the States, Ter- ritories, and Canadas are given. ASSURANCE. Any instrument which con- firms the title to an estate, or is legal evidence 3 Johns. Ch. 481. And see 6 Ala. (N. S.) 506; 9 Id. 937; 10 Conn. 69; i Md. Ch. Dec. 507 ; 2 Gray, 447. 0-4 Wheat. 27; 6 W. &S. 97; 4 Vt. 389; 6 N. H. 67; ii Leigh. 137; 5 Ohio, 121. p-3 Johns. 481 ; i Halst. 450 ; 5 Cow. 87 , 8 Wheat. 229 ; u Id. 199; 12 S. & R. 448; i Rawle. 231 ; q Mass. 390 ; n Id. 421 ; 4 Me. 52; 2 Pick. 411; 4 M'Cord, 294; i Const. 180 ; a Nott. & M'C. 334! Coxe, 56; Hare & Wall Sel Dec 33- 60. q-2 Rand. 384 ; i Johns. Ch. 329, 336 ; i Wash. C. C. 174. r-a Mylne & K. 496; s y Moll. Ctt 57- 266 CONVEYANCES. of the transfer of property, is called an assur- ance.' Common assurances are deeds or con- veyances which make safe or assure to a man the title to his estate, and this whether they are instruments of conveyance or to charge or dis- charge. " Further assurance " is a phrase frequently used in covenants when a covenantor has granted an estate, and it is supposed that some further conveyance may be required ; he then enters into a covenant for further assurance, that is, to make any other conveyance which may lawfully be required. See COVENANTS, below. ATTESTATION is the act of witnessing an in- strument in writing, at the request of the party making the same, and subscribing it as a wit- ness.* Conveyances at common law did not require attestation in order to be valid." Attestation of conveyances is required in many of the States, in others it is not necessary. The attesting witness need not see the grantor write his name ; if he sign in the presence of the grantor, and at his request, it is sufficient^ Where there are statutory regulations on the subject, they must be complied with. Wills must be attested by competent and credible witnesses," who must subscribe their names attesting in the presence of the testator. x See attestation clauses in ASSIGNMENTS; CONTRACTS, ante. BACKSIDE is the yard at the back part of or behind the house, and belonging thereto. This term was formerly much used, both in convey- ances and pleading, but now is seldom used, and occurs only in conveyances which repeat an ancient description. J See YARD, below. BARGAIN AND SALE is a contract or bargain by the owner of land in consideration of money or its equivalent paid, to sell land to another person called the bargainee, whereupon a use arises in favor of the latter, to whom the seizin is transferred by force of the statute of uses. 2 In consequence of the consideration paid, and the bargain made by the vendor, of which the conveyance was evidence, a use was raised at once in the bargainee ; to this use the statute of uses transferred and annexed the seizin whereby a complete estate vested in the bar- gainee.* All things, for the most part, that may be granted by any deed may be granted by bargain and sale, and an estate may be created in fee, S-2 Bl. Comm. 294. t-3 P. Wms. 254; 2 Ves. Ch. 454; Ves. & B. Ch. 362; 3 A. K. Marsh, 146; 17 Pick. 373. tl-i Wood Conv. 354 ; 2 Bl. Comm. 307 ; 3 Dane Abr. 354 ; Cheeves,273; 12 Met. Mass, v-2 Bos. & P. 217. w-2 Greenl. Ev. 691 ; 9 Pick. 350; i Burr. 414 ; 4 Burn. Eccl. (Phill. Ed.) 116. x-7 Harr. & J. 61 ; 3 Harr. & M'H. 457 . i Leigh. 6 ; i Maule & S. 204 ; 2 Curt. Eccl. 320; 3 Id. 118; Garth. 79; 2 Greenl. Ev. 678. And see 13 Gray, 103 ; 2 Gush. 342 ; i Ves. Ch. ii ; 2 Washb. R. Prop. 682. y-Chitty Pr. 177 ; 2 Ld. Raym. 1390. z-2 Washb. R. Prop. 128. a-Id. 128, et tff. b-2 Co. 54 ; Dyer, 309. C-2 Washb. R. Prop. 130; 5 Ired. 30; 7 Vt. 522 ; 13 B. Mon. 30; 9 Ala. 410 ; i Harr. & J. 527 ; i W. & S. 395 ; 16 Johns. 515 ; i Cow. 629 Cro. Car. 529; Cruise Dig. 107. d-io Johns. or for years. b There must have been a valua- ble consideration,* though it need not be ex- pressed. 11 The proper and technical words to denote a bargain and sale are " Bargain and sell," but any other words that are sufficient to raise a use upon a valuable consideration are sufficient,* as, for example : " Make over and grant,"' " Release and assign."* BEARING DATE. These words are frequently used in conveyancing to introduce the date which has been put upon an instrument, and to designate some instrument to which reference is made. For example: Whereas, by an in- strument of writing, bearing date the day of , C. D. did, etc. BEHOOF is advantage, benefit, profit, use, service. BIPARTITE is the being in two correspond- ing parts ; two similar conveyances, one for each party. The usual form of introduction is : " This conveyance (or indenture) bipartite be- tween A. B. of the one part and C. D. of the other part, witnesseth," etc. BONDS. See title OBLIGATIONS, post. BY ESTIMATION. See ESTIMATION, below. CONFIRMATION. Where a conveyance has been informally made it may be confirmed by a valid conveyance confirming the voidable one. See CONTRACTS, ante. CANCELLATION is the act of crossing out or obliterating a writing ; the manual operation of destroying or tearing a written instrument. 11 COVENANTS are subject to the same rules as other contracts, in regard to the qualification of parties, the assent required, and the nature of the purpose for which the contract is entered into. See CONTRACTS, ante. No particular words are necessary to raise a covenant, express or implied. 1 Describing lands in a deed as bounded on a street of a certain description raises a covenant that the street shall be of that description ,i and that the purchaser shall have the use thereof,* and binds subsequent purchas- ers from the grantor. 1 To convey are those by which the cov- enantor undertakes to convey to the covenantee the estate described in the covenant under cer- tain circumstances. 111 It is satisfied only by st perfect conveyance of the kind bargained for," and not satisfied where an imperfect convey- ance has been accepted.* For further assurance are those by 456; see 2 Washb. R. Prop. 134 ; i Sandf. Ch. 259; < Den. 201 ; 19 Wend. 339; 7 Vt. 522 ; i Penn. 486; i Mo. 553; 2 Overt. 261. e-2 Wood Conv. 15. f-3 Johns. 484. if -8 Barb. 463 : see 2 Wash. R. Prop. 620; Shep. Touchst. 222. h-i Eq. Cas. Abr. 409 ; Roberts Wills, 367, n. As to the effect of cancelling an unre- corded deed, see Gilbert Ev. 109; Greenl. Ev. 265; i Me. 78 ; 10 Mass. 403; n Id. 337; 9 Pick. 105; 4 N. H. 191 ; 2 Johns. 82 ; 4 Conn. 450; 5 Id. 86, 262 ; 4 Yerg. 375. And see generally on this subject, 4 Bpuv. lust. <$ 3917, 3922; Jarman Wills; Roberts Wills; Gilbert Ev.; Greenl. Ev.; 4 Kent. Comm. 531. i-u Ired. 145. J-7 Gray, 563. li-s Md. 514 ; 23 N. H. 261. 1-7 Gray, 83. 111-14 Penn. St. 308 ; 19 Barb. 639 ; 4 Md. 408; ii III. 194; 19 Qliio, 347. 11-19 Barb. 6jp. 0-4 Md. 498. CONVEYANCES. 267 which the covenantor undertakes to do such reasonable acts, in addition to those already performed, as may be necessary for the com- pletion of the transfer made, or intended to be made, at the requirement of the covenantee. It relates both to the title of the vendor and to the instrument of conveyance to the vendee, and operates as well to secure the performance of all acts for supplying any defects in the former as to remove all objections to the sufficiency of the latter.P The covenantor, in the execution of bis covenant, is not required to perform unne- cessary acts.' Against incumbrances are those having for their object security against those rights to, or interests in, the land granted, which may subsist in third persons, to and thus diminish the value of the estate, though consistently with the passing of the property by the deed of con- veyance. The mere existence of incumbrances constitutes a breach of this covenant, 1 " without regard to the knowledge of the grantee. 8 The covenantee may extinguish the incumbrance and recover therefor at his election, in the ab- sence of an agreement.* The measure of dam- ages is the injury actually sustained." Not to sue are those entered into by a party who has a cause of action at the time of making it, by which he agrees not to sue the party liable to such action. A limited covenant not to sue, by which the covenantor agrees not to sue for a limited time, does not operate a re- lease; and a breach must be taken advantage of by action/ A perpetual covenant not to sue (or one by which the covenantor agrees not to sue the covenantee at any time) operates as a release to the covenantee, and may be set up as such. w But such a covenant with one of sev- eral jointly and severally bound will not pro- tect the others so bound. * And a covenant by one of several partners not to sue cannot be set up as a release in an action by all/ For qttiet enjoyment are assurances against the consequences of a defective title, and of any disturbances thereupon. 1 When it is general in its terms the covenantor stipulates at all events* to indemnify the covenantee against all acts committed by virtue of a para- mount title ; b not, however, including the acts of a mob, nor a mere trespass by the lessor. 3 p-Platt Cov. 341; see 2 Washb. R. Prop. 648; 10 Me. 91; 4 Mass. 627: 10 Cush. 134. q-Yelv. 44; 9 Price, 43 ; see title REAL PROPERTY, Incumbrances, post, r-2 Washb. R. Prop. 658 ; 20 Ala. 137, 156. s-2 Greenl. Ev. J 242; 27 Vt. 739; 8 Ind. 171 ; 10 Id. 424. t-4 Ind. 533 ; 19 Mo. 480; 25 N. H. 369; 25 Id. 229. H-7 Johns. 358 ; 16 Id. 254; 5 Me. 94; 34^.422; 12 Mass. 304 ; 3 Cush. 201 ; 20 N. H. 369 ; 25 Id. 229. v- Carth. 63 ; i Show. 46 ; 2 Salk, 573 ; 6 Wend. 471 ; 5 Cal. 501 ; see 29 Ala. N. S. 322. w-Cro. Eliz. 623 ; i T. R. 446 ; 8 Id. 486 ; 2 Salk. 375 : 3 Id. 298; 12 Mod. 415; 7 Mass. 153; 16 Id. 24: 1719.623: 3 Ind. 473; and see ii S. & R. 149. X-I2 Mod. 551 ; 8 T. R. 168 ; 6 Munf. 6 ; i Conn. 139 ; 4 Me. 421 ; 2 Dana, 107; 17 Mass. 623. y-3 Perr. & D. 149. z-Platt Cov. 312. a- 11 East. 648; i Mod. 101. b-Platt Cov. 313; Lev. 83 ; 8 Id. 305 ; Hob. 34 ; 4 Co. 80, b.; Cro. Car. 5 : 3 T. R. 584; 6 Id. 66; 5 Duer, 464; 2 Jones, 203; Busb. 384 ; 3 N. H. 260. 0-19 Miss. 87; 3 Strobh. 366. d-io N. Y. St. e-Cro. Eliz. 212; 5 M. & S. 374; i B. & C. 29; But this rule may be varied by the terms of the covenant, as where it is against acts of a par ticular person,* or " those claiming or pretend- ing to claim,"' or molestation by any person.' It occurs most frequently in leases, 11 and is there held to be raised by the words grant, demise, lease, yielding and paying, give, etc., 1 and ex- ists impliedly in a parol lease.J It is frequently replaced in conveyances by the covenant of warranty. k Of seizin (or possession) are assurancei to the grantee that the grantor has the very es- tate, both in quantity and quality, which he professes to convey. 1 A covenant for indefeas- ible seizin is everywhere held to run with the land, and to apply to all titles adverse to the grantors." A covenant of seizin of whatever form is broken at the time of the execution of the deed if the grantor has no possession either by himself or another, and no rights can pass to the assignee of the grantee.* The existence of a life estate.P a material deficiency in the amount of land,' non-existence of the land de- scribed/ the existence of fences or other fix- tures on the premises belonging to other persons who have a right to remove them," concurrent seizin of another as tenant in common,* adverse possession of a part by a stranger, constitutes a breach of this covenant. But the covenantee cannot recover against his grantor when the covenantee purchased knowing that he had no good title." To stand seized to uses are covenants by means of which, under the statute of uses, a conveyance of an estate may be effected/ Such a covenant cannot furnish the ground for an action of covenant broken. And the consider- ation for such a covenant must be relationship, either by blood or marriage. w As a mode of conveyance it has fallen into disuse, though the doctrine is often resorted to by courts in order to give effect to the intention of the parties who have undertaken to convey lands by deeds which are insufficient for the purpose under the rules required in other forms of conveyance/ Of warranty are assurances by the grantor of an estate that the grantee shall enjoy the same without interruption by virtue of par- amount title/ Such covenants give the cove- nantee and grantee the benefit of subsequently 2 Ventr. 61. f-io Mod. 383; i Ventr. 175. jf-See 21 Miss. 87. h-i Washb. R. Prop. 325. i-i Per. & D. 360: 9 N. H. 222; 15 N. Y. 3*7; 6Bingh.6s6; 4 Kent Comm. 474, n. J-2O Eng. L. & Eq. 374; 3 N. J. 260; see i Duer, 176.' lt-2 Washb. R. Prop. 661. I- Platt Cov. 306. 111-2 Vt. 328 ; 2 Dev. 30; 4 Dall. 439 ; 5 Sneed, 123 ; 14 Johns. 248 ; 14 Pick. 128 ; 10 Mo. 467. 11-2 Washb. R. Prop. 656. 0-2 Johns, i ; 2 Vt. 327 ; 5 Conn. 497; 14 Pick. 170; i Met. Mass. 430; 17 Ohio, 60; 8 Gratt. 397; 4 Cranch, 430; 36 Me. 170; 24 Ala. N. S. 189 ; 4 Kent. Comm. 471 ; 2 Wnshb. R. Prop. 656. p-Rawle Cov. 52. q-i Bay, 256; see 24 Miss. 597. r-i N. Y. 564 ; 7 Penn. St. 122. s-i2 Me. 389. t-7 Johns. 376. H-Rawle Cov. 111-114; 8 Pick. 547-. 22 Id. 490; 6 Cush. 127. v-Burton R. Prop. 136, 145. w-2 Washb. R. Prop. 129, 130; see 2 Seld. 342. x-i Washb. R. Prop. 155, 156; 2 Sanders Uses, 79, 83; 4 Mass. 136; 18 Pick. 397: 22 Id. 376; 5 Me. 232; n Johns. 351 ; 20 Id. 85; 5 Yerg. 249. y-2 Jones, 203; 3 Duer, 464 CONVEYANCES. acquired titles, 1 to the extent of their terms" (but not if an interest actually passes at the time of making the conveyance upon which the covenant may operate) ; b in case of a term for years as well as conveyances of greater estates, as against the grantor and those claiming under hi!n,* including purchases for value. 8 And this principle does not operate to prevent the grant- ee's action for breach of the covenant, if evicted by such title.' When general, this covenant applies to law- ful adverse claims of all persons whatever. When special, it applies only to the particular person or claims to which its operation is lim- ited or restricted. 8 A limitation may arise from the nature of the subject-matter of the grant. 11 The covenant of warranty, until broken, passes with the land to the heir of the grantee ; or if the land be assigned or conveyed, it passes to the assignee, and when broken, the heir or assignee injured by the breach can, in his own name, maintain an action against the warrantor, and may maintain an action against every in- termediate warrantor, and prosecute the same to judgment. A judgment against one will be no bar to a suit against another. A satisfaction is the only bar. 1 To constitute a breach, there must be an eviction by paramount title.J which may be constructive. 1 And it is sufficient if the tenant yields to the true owner, or if, the prem- ises being vacant, such owner takes posses- sion. 1 The action for breach should be brought by Ihe owner of the land, and, as such, assignee of the covenant at the time it is broken, 10 but may be by the original covenantee, if he has satisfied the owner." The form of the covenant of warranty in com- mon use is as follows : "And I (or we) the said (here give name of grantor or grantors) for myself, my (or ourselves, our) heirs, executors, and administrators, do covenant with said {here give grantee or grantees' names}, his (or their) heirs and assigns, that I (or we), my (or our) heirs, executors, and administrators, shall WARRANT and DEFEND the same to said (re- peat grantees' names), \\\s (or their) heirs and assigns forever, against the lawful claims and demands of all persons (or of all persons claim- ing by, through, or under me [or us], but against none other, or any other special covenant). DATE. Written instruments generally take effect from the day of their date, but the actual B-TI Johns. 91 ; 13 Id. 316; 14 Id. 193 ; 9 Cow. 271 ; 6 Walts, 60; 9 Cranch, 43; 13 N. H. 389 ; i Ohio, ipo; 3 Id. 107; 3 Pick. 52; 13 Id. 116; 24 Id. 324; 3 Met. in ; 13 Me. 281 ; 20 Id. 260. a-i2 Vt. 39; 3 Met. 121 ; o Cow. 271 ; 34 Me. 483. b-3 McLean C. C. 56 ; 9 Covr. 371 : 12 Pick. 47 ; 5 Gratt. 157. C-Burton R. Prop. j( 850 ; Wms. R. Prop. 229 Wash. b. R. Prop. 478; 4 Kent Comm. 261, .; Cro. Car. 109; I Ld. Raym. 729; 4 Wend. 502; i Johns. Cas. 190. d-2 Wahb. R. Prop. 479, 480. 6-14 Pick. 224 ; 24 Id. 324 ; { N. H. 533; 13 Id. 389; 5 Me. 231 ; 12 Johns. 201 ; 13 Id. 316; 9 Cranch. 53 ; sec 4 Wend. 619; 18 Ga. 192. fi Gray, 195; 25 Vt. 635; 12 Me. 499. ff-2 Washb. R. Prop. 665. h-8 Pick. 547; 1914.341; 5 Ohio, 190 ; 9 Cow. 271. i-s Ohio, 154; 14 Jd. 118. J-Rawl. Cov. 121 ; 6 Barb. 165 ; 5 Harr. 162 ; n Rich. 80 ; 13 La. An. 390,499- 5 Cal. 262; 4 hid. 174; 6 Ohio St. 525; 26 date of execution may be shown, though differ- ent from that which the instrument bears. Though the date is not of the essence of the instrument it is essential to the identity of the writing by which it is proved. If a written date be an impossible one, the time of delivery must be shown. P When the place is mentioned in the date of a deed the law presumes, unless the contrary appears, that it was executed at the place of the date.i DEEDS are absolute conveyances; instru- ments of writing by which lands, tenements, or hereditaments are conveyed for no less an estate than for life, and which the grantee holds in his own right, subject to no superior, nor to condi- tions. As to their requisites, see DEED FORMS, below. To declare uses, are deeds made after a fine or common recovery to show the object thereof. To lead to uses, are deeds made before a fine or common recovery to show the object thereof. Poll, are deeds made by a single party only. That is, only the party making it ex- ecutes it or binds himself by it as a deed. r Its purpose is merely to transfer the rights of the grantor to the grantee. A deed poll is an instru- ment of one part only, an indenture is an instru- ment of two parts. See INDENTURES, below. In form this instrument begins : " Know all men by these presents that I, A. B., have given, granted, and enfeoffed, and by these presents do give, grant, and enfeoff," etc. DEFEASANCE may be effected in two ways : I. By a separate instrument (if not prohibited by statute), which defeats the force or operation of some other conveyance or estate. 2. By a clause in the same instrument or conveyance which defeats the force or operation, Ihe con- veyance or estate. In the first case it is called a " defeasance," in the latter a " condition." 1 The defeasance may be subsequent to the deed in case of things executory,' but must be a part of the same transaction in case of an ex- ecuted contract." Yet where the instrument of defeasance is executed subsequently, in pursu- ance of an agreement made at the time of mak- ing the original conveyance, it is sufficient/ as well as where the conveyance and defeasance bear different dates, but are delivered at the same time. w The instrument of defeasance Mo. 92; 17 IlI.iSs; 36 Me. 455; 14 Ark. 309. k-n Me. 499; 17111.185; 5 Hill, 599; 4 Mass. 349; 8111. 162; 5 Ired. 393. 1-5 Hill, 599; 4 Mass. 349; 8 111. 162; 5 Ired. 393; see 4 Halst. 139. ni-4 Johns. 89; 19 Cush.. 219 ; 10 Wend. 344; 2 Mass. 455; 7ld. 144; 3 Cu . __, Me. 81 ; 5 Monr. 357; 12 N. H. 413. M-s Cow. 137 10 Wend. 184; 2 Met. Mass. 618; 5 Monr. 357; T Conn. 244 : i Dev. & B. 94 ; 10 Ga. 311 ; 26 Vt. 279. 0-2 Greenl. Ev. \ 12, 13, 489, n.; 8 Mass. 159 ; 4 Cush. 403 ; i Johns. Cas. 91 ; 3 Wend. 233 ; 31 Me. 243 ; 17 Eng. L. & Eq. 548 ; 2 Greenl. Cruise Dig 618, n. p- Shepp. Touchst. 72 ; Cruise Dig C. 2, g 61. q-Plowd. 7, b. r-2 Washb. R. Prop. 588. s-Cora. Dig. Defeas- ance. t-Co. Litt.237. a.; 2Saund. 43. u-Co. Litt. 2^6, 6.; i N. H. 39; 3 Mich. 482 ; 7 Watts, 401 ; 21 Ala. N. S. 9. V-2 Washb. 489. W-I2 Mass. 463 ; 13 Pick. 411 ; 18 Id. 540; 31 Penn. 81.131; 7 Me. 435 ; 13 Ala. 246. CONVEYANCES. 269 must, in law, be of as high a nature as the principal conveyance.* Defeasance of deeds conveying real estate are generally subject to the same rules as deeds respecting record and no- tice to purchasers. 1 And in some States actual notice is not sufficient without recording the defeasance. DELIVERY is the transfer of a deed from the grantor to the grantee, or some person acting in his behalf, in such a manner as to deprive the grantor of the right to recall it at his option. I Absolute delivery is that which is complete pon the actual transfer of the instrument from the possession of the grantor. Conditional delivery is that which passes the deed from the possession of the grantor, but is not to be completed by possession in ihe grantee, or a third person as his agent, until the happen- ing of a specified event. A deed delivered in this manner is an "escrow" and such delivery must be always made to a third person.r though where the transfer to the possession of the grantee was merely to enable him to convey it to a third person to hold as an escrow, it was held not an absolute delivery to the grantee. 1 No particular form of procedure is required to effect a delivery. It may be by acts merely, by words merely, or by both combined ; but in all cases an intention that it shall be a delivery must exist.' The deed of a corporation is gen- erally delivered by affixing the corporate seal b Delivery may be made by an agent as well as by the grantor himself," or to an agent previ- ously appointed/ 1 or subsequently recognized ; e but a subsequent assent on the part of the grantee will not be presumed.' To complete a delivery, acceptance must take place, which may be presumed from the grant- ee's possession,* from the relationship of a per- son holding the deed to the grantee, h and from other circumstances. 1 There can ordinarily be but one valid deliv- ery,J which can take place only after complete execution ; k but there must be one, 1 and from that one the conveyance takes effect. ESTIMATION. In sales of land it frequently happens that the property is said to contain a certain number of acres " by estimation," or so many acres, " more or less." When these ex- pressions are used, if the land fall short by a W-I3 Mass. 443 ; 22 Pick. 526 ; 7 Watts, 261, 401 ; 18 Me. 246; 43 Id. 206. x-3 Wend. 208; 14 Id. 63; 78. & R. 70; 12 Mass. 456; 38 Me. 447: 40 Id. 381. y- Shep. Touchst. 59; Cro. Eliz. 520; 8 Mass. 230. z-2 Dev. & B. 530; 4 Watts, 180; 22 Me. 569 ; 23 Wend. 43; 2 B. & C. 82. a-Com. Dig. Fait, (A); i Wood Conv. 193; 6 Sim Ch. 191 : n Vt. 621 ; 18 Me. 301 ; 2 Penn. St. 191 ; 12 Johns. 536; i Johns. Ch. 456; 20 Pick. 28 ; 4 J. J. Marsh, 572. b-Co. Litt. 22, ., 36 .; Cro. Eliz. 167 ; 2 Rolle Abr. Fait, (i). c-o Mass. 307; 3 Met. (Mass.) 412; 4 Day, 66; 5 B. & C. 671; 2 Washb. R. Prop. 579. d-6 Met. (Mass.) 356. 6-22 Me. 121 ; 14 Ohio, 307. f-g 111. 177; iN. H. 353; 5 Id. 71 ; 15 Wend. 65 307 ; 4 Day, 66 ; 2 Ir 4 Pick. 518; 2 Ala. 1 Fla. 359; 6 Mo. 326; i Zabr. 379. tt-j 111.557; Johni. Ch. 240, 456. l-i8 Conn. 257 : 5 Watts, 243. j- 12 Johns. 536; 20 Pick. 28. It-a Dev. 379. 1-2 Har- ring. 197; 16 Vt. 563; 2 Washb. R. Prop. 581. 111-12 Macs. 455; 4 Yeates, 278; 18 Me. 190; see i Den. 323. 353; Mas Id. 71 ; 15 Wend. 656 ; 25 Johns. 187; see also 9 Mass. 07 ; 4 Day, 66 ; 2 Ired. Eq. 557. g-i Harr. & J. 319; 4 Pick. 518; 2 Ala. 136; 1 1 Id. 412; i N. H. 353; 4 small quantity, the purchaser will receive no re- lief. In one case of this kind the land fell short two-fifths, and the purchaser received no relief." The meaning of these words has never been precisely determined by judicial decision. See MORE OR LESS, below. ESCROW is a deed delivered to a stranger, to be by him delivered to the grantee upon the event of certain conditions, upon which last delivery the transmission of title is complete. The delivery must be to a stranger.' The second delivery must be conditioned, and not merely postponed.' Care should be taken to express the intent of the first delivery clearly.' An escrow has no effect as a deed till the per- formance of the condition' takes effect from the second delivery.* See DELIVERY, above. EXECUTE is to make and deliver." It in- cludes all the essential and formal parts of a conveyance of real property. EXPENSE. When there is no express agree- ment to the contrary, the expense of the con- veyance falls upon the purchaser/ who must prepare and tender the conveyance.* The ex- pense of the execution of the conveyance is, on the contrary, always borne by the vendor.* FEE SIMPLE is an estate belonging to a per- son and his heirs, absolutely. An estate of in- heritance.r The word " simple " adds no meaning to the word " fee " standing by itself, but it extends all qualification or restriction as to the persons who may inherit it as heirs, thus distinguishing it from a " fee tail," as well as from an estate which, though inheritable, is sub- ject to conditions or collateral determination.* A fee simple is the largest possible estate a man can have, being an absolute estate in perpetuity ; it is where lands are given to a person and his heirs absolutely, without any end or limitation being put upon the estate.* FEE TAIL is an estate limited to particular classes of heirs. An inheritable estate which can descend to certain classes of heirs only. It is necessary that these heirs should be heirs " of the body " of the ancestor. The descent of property is in general regulated by statute, and unless disposition be expressly made by the owner during his lifetime will, after his death, descend according to such statutory regulations, and not by common law. n-2 Freem. 106; see i Call. 301; 4 H. & M. 184; 6 Binn.io6; iS.&R.i66; 2johns.37; sld.so8;i5 Id. 471 ; 3 Mass. 380; 5 Id. 355; i Root, 528. o-See Sugden Vend. 231-236. p-8 Mass. 320; see 9 Co. 137, b.; T. Moore, 642 ; 5 Blackf. 18; 23 Wend. 43: 2 Dev. & B. 530; 4 Watts, 180 : 22 Me. 569. q-3 Met. (Mass.) 412 ; 8 Id. 436 : 2 B. & C. 82 : Shep. Touchst. (Preston Ed.) 58. r-2 Johns. 248 ; 10 Wend. 310 . 8 Mass. 230 ; 22 Me. 569; 14 Conn. 271; 3 Green Ch. 155. s-2i Wend. 267. t-i Barb. 500; set 3 Met. (Mass.) 412 ; 6 Wend. 666 : 16 Vt. 563 : 30 Me. no . 10 Penn. St. 285 ; see generally, 14 Ohio St. 309 ; 13 Johns. 285 ; 5 Mas. C. C. 60; 6 Humph. 405; 3 Met. (Mass.) 412. n-I. & W. 531 ; 2 Sandf. Ch. 400. v-2 Ves. Ch. 355, note. W- But see Contra 2 Rand. Va. 20. x-Sugden Vend. 296 ; Contra 2 Rand. 20; 2 McLean C. C. 495; but see 3 Mass. 487; 5 Id. 472 : Eunomus Dial 2^2. y-Co. Litt. i, b.; 2 Bl. Comm. 106. z-i Washb. R. Prop. 51 ; Wright Ten. 146; i Prest. Est. 420; Litt. \i. m- Plowd. 557 ; Atkinson Conv. 183 ; 2 Sharsw. BL Comm. 106. 270 CONVEYANCES. FEOFFMENT was one of the earliest modes of conveyance used at common law. GRANT is a generic term, applicable to all transfers of real property. 6 It is a technical term made use of in deeds of conveyance of lands to import a transfer, and is said to be construed into a general warranty. GRANT AND DEMISE.* GRANT, BARGAIN, SELL.* GRANT, BARGAIN, SELL, ALIEN, AND CONFIRM.' These words are used in a similar manner to the word grant being used in instru- ments of conveyance of real estate.' GRANTEES are those to whom a conveyance K made. GRANTORS are those by whom a conveyance is made. HABENDUM is the clause which usually fol- lows the granting part of the premises of a con- veyance or deed, and which defines the extent of the ownership of the thing granted to be held and enjoyed by the grantee. h It commences with the words, " To have and to hold," etc. 1 This is not an essential part of a conveyance or deed, but serves to qualify, define, or control it,J and may be rejected if clearly repugnant to the rest of the instrument. 11 HEREDITAMENTS are those things which are capable of being inherited, whether they be cor- poreal or incorporeal, real, personal, or mixed, and it includes not only lands and everything thereon, but also heirlooms and certain furni- ture, which by custom may descend to the heir together with the land.' This term denotes such things as may be the subject-matter of inherit- ance, but not the inheritance itself; therefore it cannot, by its own intrinsic force, enlarge an estate, prima facie a life estate, into an absolute fee. Corporeal hereditaments are such per- nanent, substantial objects as may be inherited ; ihe term "land" will include all such. In- corporeal hereditaments are such intangible, in- visible things as are the subject of ownership, and are inheritable. Of these are annuities, easements of air, light, etc., equities of re- demption, franchises, reversions, rents, and the like.P HOLD. See HABENDUM, above. INDENTURE. This is a formal written in- strument between two or more persons in dif- ferent interests, as opposed to " Deed Poll " (which is made by a single person, or by sev- eral having similar interests). Its name comes from a practice of indenting or scalloping such an instrument on the top or side in a wav- ing line. The ancient practice was to de- liver as many copies of an instrument as there were parties to it; to write the copies on the same parchment, with the word " chiro- b-2 Washb. R. Prop. 517. e-Id. 620. d-4 Wend. 502 : 8 Cow. 36 ; 9 Ves. Ch. 330. e-4 Dall. 441 ; 2 Binn. 09 ; I Rawle. 377 ; i S. & R. 50, 438 ; 4 Kent. Comm. 460. tf-aCaines, 188; 7 Johns. 258; Comm. Dig. Guaranty A. |C-See 8 Barb. 463 ; i Monr. 30 ; I Conn. 79 ; s Tenn. 124; 2 Binn. 95; n S. & R. 109; i Mo. 576; i Murph. 343. h-z Washb. R. Prop. 642. i-The words "to hold " have now no meaning in our deeds, 2 Bl. Comm. 298. J-Co. Litt. 6, a, 299 ; i Wood Conv. 224 ; 4 Kent Comm. 468; 8 Mass. 162, 174. k-i Wood Conv. 199; graphum," or some other word, written between them, and then to cut them apart through such word, leaving part of each letter on either side of the line, which was at first straight and after- ward " indented " or notched.' IN WITNESS WHEREOF. These words, when conveyancing was in the Latin language, were " in cujus rei testimonium" they are the initial words of the concluding clause in conveyances : " In witness whereof, the said parties hav hereunto set their hands," etc. IN TESTIMONY WHEREOF. These words are the initial words of the concluding clause in the acknowledgment : " In testimony whereof, I have hereunto set my hand and official seal," etc. INTENDED TO BE RECORDED is a phrase fre- quently used in conveyancing, in deeds which recite other deeds which have not been re- corded. It has been construed to be a cove- nant on the part of the grantor to procure the deed to be recorded in a reasonable time. r INTER PARTES (between the parties). This signifies an agreement which in the outset, and before any stipulations are made, to be between such and such persons ; as, for example : " This conveyance, made this day of , be- tween A. B. of the one (or first) part and C. D. of the other (or second), witnesseth." 8 Such an introduction is a solemn declaration that all the covenants comprised in the conveyance are to be covenants between these parties and none others. And should a stipulation be found in the body of an instrument by which " the said A. B. covenants with E. F. to pay him one hun- dred dollars," the words " with E. F." are in- operative unless they have been used to denote for whose benefit the stipulation may have been made, being in direct contradiction with what was previously declared, and C. D. alone can sue for the non-payment, it being a maxim that where two opposite intentions are expressed in a contract the first in order shall prevail.* But this rule does not apply to simple contracts." When there are more than two sides to a con- veyance " inter partes," as between A. B. of the first part, C. D. of the second, and E. F. of the third, there is no objection to one covenanting with another in exclusion of the third. T JUDICIAL MORTGAGES are liens resulting from judgments, whether rendered on contested cases or by default, whether in actions or special pro- ceedings, and whether final or provisional in favor of the person obtaining them. JUDICIAL SALES are sales by authority of some competent tribunal, by an officer authorized by law for the purpose. Shepp. Touchst. 102; Skinn. 543. 1-Co. Litt. 5 b: t Bl. Comm. i 111-2 B. & P. 251 : 8 T. R. 503 ; see 4 Washb. R. Prop, n-a Sharsw. Bl. Comm. 17. 0-2 Woodison Lect. 4. p-i Washb. R. Prop, n; i Mill- iard R. Prop. 443 ; 3 Kent Comm. 402-404, 454. q-i Reeve Hist. Eng. L. 89 ; DuCange; 2 Washb. R. Prop. 587, et seq. r-2 Rawle, 14. S-Addis. Contr. 9. t-8 Mod. 116; i Show. 58; 3 Lev. 138; Carth. 76: Rolle, 196: 7 M. & W. 63. u-2 Dowl. & R. 277; 3 Id. 273; Addis. Contr. 244,256. v-See 5 Co. 182; 8 Taunt. 245; 4 Q. B. 207; Addis. Contr. 267. CONVEYANCES. 271 The officer who makes the sale conveys all the rights of the defendant, or other person against whom the process has been issued, in the property sold. Under such a sale there is no warranty, either express or implied, of the thing sold.* When real estate is sold by the sheriff or mar- shal, the sale is subject to the confirmation of the court. 1 LEASES. See LEASES, below. LINES AND CORNERS are boundary lines and their angles with each other.J LOCATIVE CALLS are calls describing certain means by which the land to be located can be identified. Reference to physical objects in entries and deeds by which the land to be lo- cated is exactly described.* Special are to be distinguished from general calls or descrip- tions.* MISREADING MISRECITAL. When a con- veyance is read falsely to an illiterate or blind person who is a party to it, such false reading amounts to a fraud, because the contract never had the assnt of both parties. 1 * MORE OR LESS are words in a conveyance of lands or contract to convey lands, importing that the quantity is uncertain and not warranted, and that no right of either party under the con- tract shall be affected by a deficiency or excess in the quantity. So in contracts of sale gen- erally. d In case of an executory contract, specific per- formance may be enforced without changing the price, if the excess or deficiency is very small, 8 but not if the excess or deficiency is great, even though the price reserved be per acre. r But a deed adding the words more or less to the description of the property is not a sufficient ful- filment of a contract to convey the described property, when more or less was not in the original contract, if there is an actual deficiency. But after such a conveyance is made, and a note given for the purchase money, the note can- not be defended against on the ground of defi- ciency.* In case of an executed contract it will not be disturbed unless there be a great deficiency, 11 or excess, 1 or actual misrepresentation without fraud, and there be a material excess or defi- ciency.J Eighty-five feet, more or less, means eighty- five feet, unless the deed or situation of the land in some way controls it. k The words more or less will not cover a dis- tinct lot. 1 See ESTIMATION, above. MORTGAGE. See MORTGAGES, below. MUNIMENTS. See TITLE, below. W-9 Wheat. 616. x-See 4 Wash. C. C. 45, 322. y- 17 Miss. 459; 21 Ala. 66; 9 Post. & H. 471 ; 10 Gra'tt. 455; i6Ga. 141. z-2 Bibb. 145; 3 Id. 414. R-3 Bibb. 414 ; 2 Wheat. 211 ; 10 Id. 463 ; 7 Pet. 171 ; 18 Wend. "57; '6 Johns. 257 : 17 Id. 29 ; 10 Gratt. 445 ; Jones L. 469; i6Ga. 141: 5 Ind. 302; 15 Mo. 80; 2 Bibb 118. b-s Co. 19 , 6 East. 309 ; Dane Abr. Ch. 86, Art. 3, g 7; 2 Johns. 404: 11 Id. 469; 3 Cow. 537. c-17 Ves. Ch. 394 : Powell Pow. 307. d-2 B. & Ad. 106. e-i? Ves. Ch. 394; Powell Pow. 397; 24 Miss. 597; 13 Texas, 223. f-In 2 B. & Ad. 106, it was held that an NATURAL AFFECTION (the affection which a husband, a father, a brother, or other near relative naturally feels towards those who are so nearly allied to him) sometimes supplies the place of a valuable consideration in contracts; and natural affection is a good consideration in a deed. PARTITION is the division of real estate. Compulsory partition is that which takes place without regard to the wishes of one or more of the owners, and is made by virtue of special laws providing that remedy. Voluntary partitirn is made by the owners, and on mutual consent, and is effected by mutual conveyances or re leases, to each person, of the share which he is to hold, executed by the other owners. PERSONAL PROPERTY. See MORTGAGES, below, and title PROPERTY, ETC. ; SALES. POLL. See DEED POLL ; INDENTURE, above. POWER OF ATTORNEY. See title AGENCY ; ATTORNEYS, ante. PREMISES. " The premises " is that part of a conveyance which precedes the " haben- dum " ; it embraces the statement of the par- ties, the consideration, recitals inserted for explanation, description of property granted, with the intended exceptions. When lands are granted by metes and bounds, all the area within those bounds, and no more, passes. Growing crops are part of the land while in the owner's hands, and unless excepted, pass by the deed." PRIMARY CONVEYANCES. See ORIGINAL CONVEYANCES, above. PROPERTY, ETC. See LEASES ; MORTGAGES, below, and title PERSONAL PROPERTY; REAL PROPERTY, ETC. PUNCTUATION. See title CONTRACTS, ante. QUADRIPARTITE is having four parts, or di- vided into four parts, as, This conveyance quad- ripartite, made this day of , between A. B. of the one (or first) part, C. D. of the sec- ond part, E. F. of the third part, and G. H. of the fourth part, witnesseth, etc. QUIT-CLAIM is a form of deed in the nature of a release containing words of grant as well as release. The term is in constant and general use. It presupposes a previous or precedent convey- ance, or a subsisting estate and possession. P It is a conveyance at common law, but differs from a release in that it is regarded as an original conveyance. i The operative words are " re- mise, release, and forever quit-claim."* 1 Cov- enants of warranty against incumbrances by the grantor are usually added. See DEED FOJIMS, post. excess of fifty quarters over three hundred quarters of grain was not covered by the words "three hundred more or less," if there was not shown that so large an excess was in contemplation, i Esp. 229. g-2 Penn. St. 533; 9 S. & R. 80; 13 Id. 143; 10 Johns. 297; 4 Mass. 414. b 2 Russ. Ch. 597; i Pet. C. C. 49. i-8 Paige, 312 ; 2 Johns. 37; Owen, 133 : i Ves. & B. Ch. Ir. 375. J-i4 N. Y. 143. h-20 Pick. 62. 1-24 Mo. 574. 01-13 Ohio, 430. 11-3 Ohio St. 483. 0-2 Wash. R. Prop. 606. p-Thornton Conv. 44. q-6 Pick. 409 ; 14^.374; 3 Comm. 398 ; 9 Ohio, 96 ; 5 111. 117. r-Thornton Cnv. 44, 272 CONVEYANCES. REAL PROPERTY. See title PROPERTY, ETC., REAL PROPERTY . RECEIPTS. The general principle settled by weight of authority is, that for the purpose of sustaining the conveyance as against the ven- dor and his privies, the receipt is conclusive : they are estopped to deny that a consideration was paid sufficient to sustain the conveyance.* But in a subsequent action for the purchase- money or upon any collateral demand, e. g., in an action to recover a debt which was in fact paid by the conveyance, or in an action for damages for breach of a covenant in the deed, and the like, the grantor may show that the consideration was not in fact paid ; that an ad- ditional consideration to that mentioned was agreed for, etc. 1 And when a deed is attacked for fraud, or is impeached by creditors as voluntary, and there- fore void, or when the object is to show the conveyance illegal, the receipt may be explained or contradicted. With this exception of re- ceipts inserted in a sealed instrument having some other purpose, to which the receipt is col- lateral, a receipt under seal works an absolute estoppel on the same principles and to the same general extent as other specialties. RECITALS are repetitions of some former writing or statement of something which has been done. It is useful to explain matters of fact which are necessary to make the transac- tion intelligible. The party which executes a deed is bound by the recitals of essential facts contained therein. P The amount of consideration received is not an essential averment under this rule. 1 The reci- tals in a conveyance bind parties and privies thereto, whether in blood, estate, or law/ A deed of defeasance which professes to recite the principal deed must do so truly. 8 RECORDING. By the laws of the several States, certain conveyances and instruments must be recorded in order to perpetuate the matters which they contain, and that copies thereof from such records shall have the same effect as the records themselves. The fact of an instrument being recorded is held to operate as a constructive notice upon all subsequent purchasers of any estate, whether legal or equit- able, in the same property. 1 But all convey- ances and deeds which may be in fact recorded, U-i Binn. 502 ; 26 Mo. 56 ; 4 Hill (N. Y.) 643. l-i6 Wend. 460; 4 Johns. 23; 14 Id. 210 ; 2 Hill (N. \.) 554 ; 10 Vt. 96 ; 12 Id. 443 ; 3 N. H. 170 ; 4 Id. 229, 397 ; i M'Cord, 514; 7 Pick. 533; i Rand. 219; 4 Dev. 355; 3 Hawks. 82 ; 6 Me. 364 ; 5 B. & Aid. 606 ; 5 Ala. 224 ; 5 Loud. Jur.: 2 Harring. (Del.) 354; 13 Miss. 238; 5 Conn. 113; i Harr. & G. 139; Humph. 584; i Gill. 84; i J. I. Marsh, 387: 3 Md. Ch. Dec. 411; 3 Ind. 212; 15111.230; i Stockt. Ch. 492. But there are many contrary cases. See i Me. 2 ; 5 Id. 232 ; 7 Johns. 341 ; 3 M'Cord, 552 ; i Johns. Ch. 390; i Harr. Sc J. 252 ; i Hawks. 64 : 4 Hen. & M. 113 ; 2 Ohio, 182 ; i B. & C. 704. 111-3 Zab. 465 ; 3 Md. Ch. Dec. 461 ; 21 Penn. St. 480; 20 Pick. 247: 12 N. H. 248. ii-Ware Dist. Ct. 496; 4 Hawkes, 22 ; see 2 Taunt. 141. 0-2 HI. Comm. ij8. p-Com. Dig. Estoppel '(A. 2), Met. Yelv. 227, .; 2 Co. 33: 8 Mod. 311. 1-I7 Mass. 249; 20 Pick. 247; 5 Cush. 431 ; 6 Me. 364 ; 7 Id. 175 ; 13 Id. 233 ; 15 Id. 118; 10 Vt. 96 ; 4 N. H. 229, 397 ; 8 Conn. 304; 14 Johns. 210; 20 Id. 388; 16 Wend. 460; 7 S. & R. 311 ; are not to be considered as giving notice. In order to have this effect the instruments must be such as are authorized or required to be re- corded. And the registry must have been made in compliance with law otherwise the record- ing is to be treated as a mere nullity, and will not effect a subsequent purchaser or incumbran- cer, unless he has such actual notice as would amount to a fraud." REUDENDUM is that clause in a conveyance which reserves something new to the grantor, which must be of some other thing issuing or coming out of the thing granted, and not a part of the thing itself ; T nor of something issuing out of another thing; and it must be made to one of the grantors, and not to a stranger to the conveyance. " Saving and excepting," etc. w The thing excepted must be particularly described. x RE-ENTRY. Conveyances in fee reserving a ground rent, and leases for a term of years, usually contain a clause authorizing the propri- etor to re-enter in case of the non-payment of rent, or of the breach of some covenant in the lease which forfeits the estate. Without such reservation he would have no right to re-enter for a mere breach of a covenant, although he may do so upon the breach of a condition which, by its terms, is to defeat the estate granted J See LEASES, below. RELEASE. A release is a conveyance of a person's interest or rights unto a thing to an- other who has the possession thereof or some estate therein. 1 The relinquishment of some right or benefit to a person who has already some interest in the tenement, and such in- terest as qualifies him to receive or avail him- self of the right or benefit so relinquished.* REMISE, RELEASE, AND QUIT-CLAIM are the ordinary effective words in a release. These words are sufficient to pass the estate in a primary conveyance. 6 Remise is a French word synon- ymous with release. See SURRENDER, below. RESERVATION is that part of a deed or instru- ment which reserves a thing not in esse at the time of the grant, but merely created." 1 It is the creation of a right or interest which had no prior existence, as such, in a thing or part of a thing granted, by means of a clause inserted by the grantor in the instrument of conveyance. 3 Watts, 151 ; i Harr. & G. 139 : i Bland. Ch. 236; 4 Hen. & M. 113; i Rand. 219; 2 Hill, 404; i M'Cord, 514; 15 Ala. 498 ; loYerg. 160; 7 Monr. 291 ; i J. J. Marsh, 389 ; but see i Hawks. 64 ; 4 Id. 22 ; i Dev. & B. 452 ; 1 1 La. 416 ; 2 Ohio, 350 ; 3 Mas. C. C. 347. r- i Gfeenl. Ev. g 3. And see 3 Ad. & E. 265 ; 7 Dowl. & R. 141 ; 4 Pet. i ; 6 Id. 6n. s-Cruise Dig. tit. 32, Ch. 7, J 28 ; see 3 Penn. 324 ; 3 Chanc. Cas. 101 ; Co. Litt. 352; Com Dig. Fait (E. i). t-i Johns. Ch. 394. ll-i Sch. & L. 157 ; 2 Id. 68 ; 4 Wheat. 466; i Binn. 40 ; i Johns. Ch. 300; i Story Eq. Jur. $ 403, 404 ; 5 Me. 272. V-See 2 Bl. Comm. 299; Co. Litt. 47; Shep. Touchst. 80 ; Cruise Dig. tit. 32, c. 24, ? i. W-See 30 Vt. 424 ; R. I. 419; 41 Ms. 177. x-Woodf. L. &Ten. 10; Co. Litt. 47, a.; 12 Me. 337 ; Wright, 711 ; 3 Johns. 375 ; 5 N. Y. 33; SConn. 369- 6 Pick. 499; 6 N. H. 421 ; 2Strobh. 208; 2 Tayl. 173. y-3 Wils. 27; 2 Bingh. 13: i M. & R. 694 ; Tayl. Sandl. & Ten. $290. - z-Shepp. Touchst. 320. a-Bunt. R. Prop. 15.* b-7 Conn. 250; 24 N. H. 460; 21 Ala. (N. S.) 125; 7 N. Y. 422. c-See QUIT- CLAIM, above. U-2 Milliard Abr. 359. CONVEYANCES. 273 A reservation is distinguished from an excep- tion in that it is. of a new right or interest ; thus a right of way reserved at the time of conveying an estate, which may have been enjoyed by the grantor as owner of the estate, becomes a new right. T A reservation may be of a life-estate," of a right of flowage,* right to use water/ right of way, 1 and many other rights and interests." SCRIVENERS, or conveyancers, are those whose business it is to write conveyances and other instruments for others. They act also as ^agents for the purchase and sale of real estate. SIGNATURE is the act of putting one's name at the end of an instrument to attest its validity. The name thus written is also called a signature. 1 * It is not necessary that a party should write his name himself to constitute a signature ; his mark is sufficient though he was able to write. A signature made by a party, another guiding his hand with his consent, is sufficient. 11 The signature is usually made at the bottom of the instrument. SPELLING. See title CONTRACTS, ante. SURRENDER is the yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder, by which act the lesser estate is merged into the greater by mutual agreement. 8 It is the instrument by which the surrender is made. A surrender is of a nature directly opposite to a release : the latter operates by the greater estate descending upon the less, the former is the falling of a less estate upon the greater by deed. The surrender may be express or im- plied ; the latter is when an estate incompati- ble with an exjsting estate is accepted, or the lessee takes a new lease of the same lands. f The technical and proper words of this con- veyance are, " Surrender and yield up," but any form of words by which the intention of the parties is sufficiently manifested will operate as a surrender^ TAX DEEDS are absolute conveyances made by a public officer, of the title of the owner to the purchaser, at a tax sale or sale of lands for non-payment of taxes. By the principles of the common law, this conveyance is simply a link in the chain of the grantee's title. It does not ipso facto transfer the title of the owner, as in grants from the government or conveyances between man and man. The operative char- acter of it depends upon the regularity of the anterior proceedings. The deed is not the title itself, nor even evidence of it. Its recitals bind no one. It creates no estoppel upon the former owner. No presumption arises upon the mere production of the conveyance that the V-42 Me. 9. W-28 Vt. 10 ; 33 N. H. 18 ; 3 Jones, 37, 38; 23 Mo. 373; 3 Md. Ch. Dec. 230. x-4i Me. 298. y-4i Me. 177; 9 N. Y. 423; 16 Barb. 212. z-25 Conn. 531; 6 Cush. 254; jo Id. 313; 10 B. Mon. 463. a-33 N. H. 507 ; 9 B. Mon. 163; Penn. 81.317; see 6 Cush. 162; 4 Penn. St. 173; 9 Johns. 73. b-See Mer- lin Rep. Signature, for a history of the origin of signa- tures, also Cruise Dig. 32, c. 2, \ 73, et seq. C-8 Ad. & E. 94; 3 Nev. & P. 228; 3 Curt. C. C. 752 ; 5 Johns. 144. l-4 Wash. C. C. 262, 269. e-Co. Litt. 337, It. f- facts upon which it is based had any existence. When it is shown, however, that the ministerial officers of the law have performed every duty which the law imposed upon them, and every condition essential to its character, then the deed becomes conclusive evidence of the title in the grantee, according to its extent and pur- port. 11 See GENERAL STATUTES. TENENDUM was that part of a conveyance which was formerly used to express the tenure by which the estate conveyed was held. Its effect is now expressed by the clause called the " Habendum," which see above. TESTATUM is that part of a conveyance which commences with the words, " This conveyance" (or deed, or indenture), etc., witnesseth. TITLE is the means whereby the owner of lands has the lawful possession thereof. 1 Muniments of title are those instruments of writing and written evidences which the owner of lands, possessions, or inheritances has, anjl by which he is enabled to defend the title cf his estate. Title deeds are those deeds which are evi- dences of the title of the owner of an estate. The person who is entitled to the inheritance has a right to the possession of the title deedU TRANSFER is the act by which the owner of a thing delivers it to another person with t/ ic intent of passing the rights which he has in it to the latter. TRIPARTITE is the consisting of three parti ; ; as, " This conveyance tripartite between A. I J. of the first part, C. D. of the second part, and E. F. of the third part," etc. WILL. Last will and testimony, see WILLS, below. WITNESS ATTESTATION is not essential to tie validity of a conveyance unless required by statute. Careful conveyancers, in general, have all in- struments of conveyance, as well as other important instruments, attested by at least one witness. YARD. A yard is a piece of ground enclosed for the use and convenience of the occupants of a house. See BACKSIDE, above. For AGREEMENTS TO CONVEY see title CONTRACTS, ante. For BONDS TO CONVEY see title BONDS, ante. For CONTRACTS TO CONVEY see title CON- TRACTS, ante. CONVEYANCES DEED FORKS. Deeds must be on paper or parchment,* completely written before delivery, 1 between competent parties, made without restraint,"' contain the names of the grantor and grantee," relate the suitable property," and contain the requisite parts : 16 Johns. 28; 2 Wils. 26; i B. & Aid. 50; 2 Id. no; 5 Taunt. 518. jf- Perkins, $607 ; i T. R. 441 : Com. Dig. Surrender (A.. I h-See Blackwell Tax Titles,.43o; 2 Washb. R. Prop. 542. i-Termes de la Ley. Co. sd Inst. 170. j-i Carr. & M. 653. k-s Johns. 246. l-i Hill (So. C") 267 ; 6 Mees. & W. 216, Am. Ed. . IM- 13 Mass. 371 ; 2 Bl. Comin. 291. 11-2 Brock C. C. 156; 19 Vt. 613; 12 Mass. 447; 14 Mo. 420; 13 Ohio, 120; 14 Pet. 322 ; i McLean C. C. 21 ; 2 N. H. 523. O-Brown on Frauds, 6 ; 2 Washb. R. Prop. 259, et ttf. 274 CONVEYANCES. The Introduction " This conveyance (or this deed, r this indenture), made this day of ." 1. The Premises. This embraces the statement of the parties, the consideration, recitals inserted for ex- planation, description of property granted, with the in- tended exceptions. When lands are granted by metes and bounds, all the area within those bounds and no more passes.' Growing crops are apart of the land while in the owner's hands, and unless excepted, pass by the deed.f Dower. If a wife unite with her husband in the granting part of a deed conveying her land, she is there- by barred of her right of dower, as against all those who :laim under such deed. h All that the statute requires of a married woman in order to convey her own estate, or her dower interest, is, that she should join with her husband in the granting part of the deed. If she do this, her dower is thereby barred without express words for that purpose. 1 2. The Habendum. "To have and to hold," etc. This limits and defines the estate which the grantee is to have. 3. The Reddendum. This is used to reserve some- thing to the grantor, which must be of some other thing issuing or coming out of the thing granted, and not a part of the thing itself.* " Saving and excepting," etc. 1 The thing excepted must be particularly described. 1 " 4. The Condition. This is a qualification or re- striction annexed to the conveyance, whereby it is pro- \iilfid that in case a particular event does or does not happen, or in case the grantor or grantee does or omits to do a particular act, an estate shall commence, be en- larged, or be defeated." 5. Covenants. See COVENANTS, above. The Cov- enant of 'Warranty. This is an assurance by the grantor of an estate that the grantee shall enjoy the same without interruption by virtue of paramount title. Such covenants give the covenantee and grantee the benefit of subsequently acquired titles.P to the extent of their termsl (but not if an interest actually passes at the time of making the conveyance upon which the covenant may operate) : r in case of a term for years as well as convey- ances of greater estates," as against the grantor and those claim! ng under him,' including purchases for value." And this principle does not operate to prevent thegrant- te's action for breach of the covenant, if evicted by such title.' The covenant of warranty, until broken, passes with the land to the heir of the grantee ; or if the land be as- signed or conveyed, it passes to the assignee, and when broken, the heir or assignee injured by the breach can, in his own name, maintain an action against the war- rantor, and may maintain an action against every inter- mediate warrantor, and prosecute the same to judgment. A judgment against one will be no bar to a suit against another. A satisfaction is the only bar." To constitute a breach there must be an eviction by paramount title, 1 which may be constructive.* 6. The Conclusion. This mentions the execution, date, etc. 7. The Signature by the grantor or grantors (and their seals when required by law). 8. The Attestation by competent witnesses when required by statute. 9. The Acknowledgment or proof. ALABAMA. All persons twenty-one years of age, not under legal disability, may convey or incumber real estate or any interest therein. All conveyances must be in writing or printed upon parchment, and must be signed at their f-i3 Ohio, 430. g-z Ohio St. 483. ll-is Ohio, 191. I-Id. 191, 232 ; Wms. R. Prop. 189 ; see 6 Ohio St. 510; Binn. 341 ; i Bail. 421 ; i Blackf. 379; 13 Barb. 50. She cannot release her dower by parol, see 5 Monr. 57 ; 3 Zabr. 62. li-See 2 Bl. Comm. 299 ; Co. Litt. 47 ; Shep. Touchst. 80; Cruise Die. tit. 32, c. 24, j| i. 1- See 30 Vt. 424 ; R. I. 419 ; 41 Ms. 177. lll-Woodf. L. & Ten. 10 ; Co. Litt. 47, a.; 12 Me. 337; Wright, 711 ; 5 Johns. 375 ; 5 N. Y. 33 ; 8 Conn. 369 ; 6 Pick. 499 ; 6 N. H. 421 ; 2 Strobh. 208; 2 Tayl. 173. il-Greenl. Cruise Dig. tit. xiii., c. i, g_ i. 0-2 Jones, 203 : 3 Duer, 464. p-n Johns. 91 ; 13 Id. 316; 14 Id. 193. 9 Cow. 271 ; 6 Watts, 60; oCranch, 43 ; 13 N. H. 389 : i Ohio, 190 ; 3 Id. 107 ; 3 Pick. 52 ; 13 Id. 1 16 ; 24 Id. 324 ; 3 Met. 121 ; 13 Me. 281 ; 20 Id. 260. 0-12 Vt. 39 ; 3 Met. 121 ; 9 Cow. 271 ; 34 Me. 483. r-3 McLean C. C. 56; foot by the contracting party, or his or her agent having written authority. Acknowledgment. See that title, ante. Acknowl- edgment dispenses with the necessity of witnesses. Dower may be relinquished by the wife joining with her husband in the conveyance of land; or in a power of attorney authorizing the attorney to convey the land; or, subsequent to a conveyance, by a separate instrument executed by her alone ; and in either case her signature must be attested by two witnesses who are able to write, or acknowledged by her according to the form prescribed fcr the acknowledgment of their conveyances in the State.' Husband must join in wife's conveyance of real property, except he be non compos mentis, non-resident, has abandoned her, or is impris- oned under conviction for exceeding two years.* Recording. Conveyances, whether by absolute deed or by mortgage, must be recorded within thirty days from their date in the office of the judge of probate for the country. Other conveyances must be recorded before the rights of purchasers, mortgagees, or judgment creditors accrue. 1 " Seals are not necessary. A scroll is customary. Witnesses. The execution of such conveyances must be attested by one, and where the party cannot write, by two witnesses who are able to write, and who must write their names as witnesses. See GENERAL FORMS and KENTUCKY and VIRGINIA FORMS, post. Conveyance General Warranty Deed. This conveyance, made this day of , by A. B.,of county, in the State of , to C. D., of county, in the State of , witnesseth : That in consideration of the sum of dollars, the said A. B. does by these presents grant, bar- gain and sell and convey unto said C. D. (his heirs and assigns), all the following described real estate, situated in county and State of Alabama, to wit : (describing it by metes and bounds). To have and to hold the same, together with the appurtenances and every part theraof, for- ever. And the said A. B. does hereby covenant and agree with said C. D., that he is lawfully seized in fee of said premises, that they are free from all incumbrances, that he has a perfect right to convey the same, and that he will warrant and forever defend the same unto the saidC. D., his heirs and assigns, against the lawful claims of all persons whomsoever. In witness whereof said grantor has hereunto set his hand, the day and year first above written. (Signed,) A. B. Executed in presence of ) W. T.,N. S. / For form of ACKNOWLEDGMENT, s*.e that title. ARKANSAS. All persons of full age and under no legal disability may convey their real estate or any interest therein. Acknowledgment. See that title, ante. Dower. When husband and wife convey lands of the husband, the certificate of acknowledgment must show that the wife acknowledged her relinquishment of dower. Married women may convey in the same manner as the husband. Recording is not required within any specified time. Mortgages are not liens until recorded.* Seals are not required. See KENTUCKY FORMS, post. o Cow. 271 ; 12 Pick. 47 ; 5 Gratt. 157. s-Burton R. Prop, g 850; Wms. R. Prop. 229 ; Washb. b. R. Prop. 478; 4 Kent. Comm. 261, ft.; Cro. Car. 109; i Ed. Raym. 729 ; 4 Wend. 502 ; i Johns. Cas. 190. t-a Washb. R. Prop. 479, 480. 0-14 Pick. 224 ; 24 Id. 324 ; 5 N. H. 533; 13 Id. 389 ; 5 Me. 231 ; 12 Johns. 201 ; 13 Id. 316; 9 Cranch, 53; see 4 Wend. 619; 18 Ga. 192. T-i Gray, 195 ; 25 Vt. 635 ; 12 Me. 499. w-5 Ohio, 154; 14 Id. 118. x-Rawl. Cov. 221; 6 Barb. 165: 5 Harr. 162; u Rich. 80; 13 La. An. 300, 499 ; 5 Cal. 262; 4 Ind. 174; 6 Ohio St. 525; 26 Mo. 92 ; 17 111. 185 ; 36 Me. 455 ; 14 Ark. 309. y-i2 Me. 499 ; 17 111. 185 ; 5 Hill, 599 ; 4 Mass. 349 ; 8 111. 162 ; 5 Ired. 393. z-Code 1886, g 1894. n-Id. g 2348. b-Id. 1810-11. c-Gould's Dig. Ch. 81, gg 1-37. d-Gould's Dig. fJi. CONVEYANCES. 275 CALIFORNIA. Conreyances or deeds are here called "grants," and may be in substance as follows : I, A. B., grant to C. D all that real property, situated in - county, State of California, bounded (or described) as follows : (here follows the description, either by tnctes and lounds or by a descriptive name, as " The Norris Ranch ") : 'Witness my hand, this - day of - . A. B. Acknowledgment. See that title. Kecording imports notice at once and must be in tbe office of the recorder of the county where the land is situated. Seals. Distinctions between sealed and unsealed in- *truments are abolished. 4 Witnesses are not required. See GENERAL FORMS. CANADA. Province of Ontario. The common law form of conveyance, as modified by mage and as stated below, and when tiuly executed ac- cording to the laws or custom of the locality of the property conveyed, are valid. Acknowledgment. See that title, ante. Duplicates. Conveyances must be in duplicate for tKe purpose of registration. Heirs. The word " heirs " is necessary to convey a tec simple. Married women may convey real property by a deed in which the husband joins, may appoint an attorney to convey, etc., and a separate examination is unneces- sary. A married infant may bar her dower. Registering. After a grant from the crown every conveyance and instrument affecting real estate is deemed fraudulent and void against creditors, subsequent pur- chasers, and mortgagees for valuable consideration with- out actual notice, unless registered in the registry office of the county where the lands lie. Seal. Conveyances and instruments affecting real property must be under seal ; a wafer or other adhesive substance should be used. A scroll or scrawl is i mproper. Witnesses must each make affidavit as to the execu- tion of ths instrument by the party whose execution he attests, where parties sign before different subscrib- ing witnesses, or the conveyance, etc., cannot be reg- istered. Province of Quebec. Conveyances and other instruments affecting real property or any interest therein, made in conformity wiih the laws in force where the property is situated, are valid here. Acknowledgment. See that title ante. Recording is necessary in order to affect creditors, subsequent mortgagees or purchasers in good faith, for value, and without notice. COLORADO. See conveyances referred to below. Acknowledgment. See that title, ante. Corporations. Private corporations may be author- ized by law to convey. It should be executed in the name of the corporation, by its president or other chief officer, naming him, and be by him signed, attested by its common seal, and acknowledged, " for and as the act and deed of the (name the corporation)." Dower is abolished. Married women convey same as married men ; either may convey their own real estate without joining the other. Recording is necessary in order to affect creditors, subsequent purchasers or mortgagees in good faith, for value, and without notice. See KANSAS FORMS, post. CONNECTICUT. See Conveyances referred to below. Acknowledgment must be personally made. See title ACKNOWLEDGMENT, ante. Married women. Women married since April 30, 1877, may convey without husband joining in deed. Recording must be at length, within a reasonable time, by the town clerk of the town where such lands are situated. C. C. \ 1092. i6ao, Witnesses. Conveyances must be attested by two witnesses. See GENERAL FORMS, post. DAKOTA, N. and S. Conveyances may be made from husband to wife, or vice versa. See conveyances referred to below. Acknowledgments. See that title ante. Courtesy is abolished. Dower is abolished. Married Woman need not join in a conveyance of land belonging to her husband except homestead, nor need the husband join in a conveyance of the lands of his wife. Recording is ne< -.ssary in order to affect creditors., subsequent purch;>.ers or mortgagees in good faith, for value, and without notice. Witness. The execution and delivery of a convey- ance must be attested by at least one witness. DELAWARE. Acknowledgments. See that title, ante. Corporations convey by their President or other le- gally presiding officer duly authorized by the directors, trustees or other managers. Dower. The certificate of acknowledgment must show that the wife relinquishes her dower. Married women must be examined privately, and such examination certified to. Recording must be within three months from the seal- ing and delivering of the conveyance, otherwise it is void as against a subsequent fair creditor, mortgagee, or pur- chaser, for a valuable consideration, without notice. Seal. A scroll is sufficient. Witness. One witness is sufficient. BBSTRICT OF COLUMBIA. Conveyances of any estate or interest in lands, tene- ments, or hereditaments within this district must be executed and acknowledged before any officer authorized by the law there to take acknowledgments. Acknowledgments. See that title. Dower. To bar her dower the wife must be examined apart from her husband, and have the conveyance fully explained to her. See title ACKNOWLEDGMENT, ante. Married women may convey their real estate in the same manner as though single. b Recording is necessary in order to affect creditors, subsequent purchasers { or mortgagees in good faith, for value, and without notice. Seals are not required, but customary. Witnesses are not required, but the signing, sealing, and delivery is usually attested by one witness. See GENERAL FOKMS, post. FLORIDA. Conveyances of any estate or interest of freehold or for a term of more than two years must be in writing, etc. See forms referred to below. Acknowledgment. See that title, ante. Dower. See tiile ACKNOWLEDGMENT, ante. Married women. Citizens of this State at marriage and seized or possessed of real or personal property preserve their title separate, independent, and beyond their husbands' control. Recording must be in the county in which the lands are situated and within six months after the execution thereof, or tht-y are void as against creditors, subse- quent purchaser, or mortgagee, for value, without notice. Seals. A scrawl with the word " seal" written in it affixed to it is a sufficient seal. Witnesses. At least two are necessary. See GENERAL FORMS, post. GEORGIA. Conveyances of any estate or interest in real property are made as referred to below. Acknowledgment. See that title, ante. Dower need not be renounced except where the hus- band is alienating lands to which he derived title through the wife, prior to the statute of 1866. The wife joining in the deed with her husband bars her dower. Recording should be in the office of the clerk of the superior court of the county where the land lies, within twelve months from the date of the conveyance. Seals. A seal or scroll is necessary. Witnesses. All deeds, mortgages, etc., to real es- tate, should be attested by two witnesses, the com- missioner, consul, etc., or judge being one of them. See GENERAL FOKMS, post. |>-Acts 1869, April to, 16 Stat. L. 45- C" 2 Fla. 441. 276 CONVEYANCES. IDAHO. Courtesy and, perhaps, dower abolished. Mar- ried women must join husbands to convey. No distinction between sealed and unsealed instru- ments. Recording necessary, but time not limited. Witnesses not required. See GENERAL FORMS. Acknowledgment See Page 22. Married wo- men convey individual property by joining in the con- veyance with the husband, and thereby release dower. Recording is necessary ; time not limited. Seals are required ; a scroll is sufficient. Witnesses are not required. "Sec. Q. Deeds for the conveyance of land may be substantially in the following form : The grantor (here insert the name or names and place of residence), for and in consideration of (here insert consideration) in hand paid, conveys and warrants to (here insert the grantee's name or names) the following described real estate (here insert description), situated in the County of - , in the State of Illinois.* A. B. [L. S.] Dated this day of - , A. D. - ." "Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple to the grantee, his heirs or assigns, with covenants on the part of the grantor (i$ that at the time of making and delivering of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same ; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in tuch deed." R. S. 1877, Ch. 30. "Sec. ip. Quit claim deeds may be, in substance, in the following form : The grantor (liere insert grantor's name or names and place of residence), for th consideration of (here insert consideration), convey and quit claim to (here insert grantee's name or names) all interest in the following described real estate (here in- sert description), situated in the County of - , in the State of Illinois.* A. B. [L. S.] Dated his day of - , . D. - ." "Every deed in substance in the form prescribed in this Section, when otherwise duly executed, shall be deemed and held a good and sufficient conveyance, release and quit claim to the grantee, his heirs and assigns, in fee of all the then existing legal or equita- ble rights ot the grantor, in the premises therein de- scribed, but shall not extend to after acquired title un- less words are added expressing such intention." R. S. 1877, Ch. 30. *"SCC. IX. . . . When the grantor or grantors in any such deed or mortgage for the conveyance of any real estate desires to release or waive his, her or their homestead rights thereon, they or either of them may release or waive the same by inserting in the form of deed or mortgage (as the case may be) pro- vided in Sections nine, ten and eleven, after the words "State of Illinois, in substance the following words" : "hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of the State." R. S. 1877, Ch. 30. INDIANA. Any conveyance of lands worded in substance as fol- lows : "A. B. conveys and warrants to C. D. (here de- tcribe the premises), for the sum of (here insert the (onsideration), the said conveyance being dated and duly signed, sealed and acknowledged by the grantor," shall be deemed and held to be a conveyance in fee sim- ple to the grantee, his heirs and assigns, with covenant from the grantor for himself and his heirs and personal representatives, that he is lawfully seized of the prem- ises, has goud right to convey the same, and guarantees the quiet possession thereof; that the same are free from all incumbrances, and that he will warrant and defend the title to the same against all lawful claims. 8 Acknowledgment. See that title. Corporations convey as natural persons ; they must Use their private seal. Dower is abolished. Heirs, etc. It shall not be necessary to use the words " heirs and assigns of the grantee ' to create in the grantee an estate of inheritance. And if it be the intention of the grantor to convey a less estate, it shall be so expressed in the deed. h Married women. Separate deed of the husband conveys no interest in the lands of the wife. The joint deed of husband and wife is necessary to pass tht lands of the wife. Wife bound by her covenants as if sole. The wife cannot convey her separate real estate un- less the husband joins in the conveyance. Recording mu^t be in the recorder's office of the county where the land is situated within for'.y-nve day* after the execution of the conveyance, or such convey- ance will not be valid againstany others than the grantor, his heirs, and those having notice thereof. Seals are not required.' See CORPORATIONS, abore. 'Witnesses are not required. Conveyance General Warranty Deed. Short form. This conveyance, made this day of , A. D. , witnesseth : That A. B. and W. B. his wife, of county, in the State of , conveys and warrants to C. D., of county, in the State of , for the sum ot , all the following described real estate, situ- ated in the county of , and State of , t> wit : (describing it by metes and hounds). Witness the grantors' hands, the day and year first above written. A. B. [Sfa!.] W. B. \Seal.\ For form of ACKNOWLEDGMENT, see that title. Conveyance General Warranty Deed. Long Form. This conveyance, made this day of , A. D. , by A. B. and W. B. his wife, of county, in the State of , of the first part, to C. D., of county, of the State of , of the second part, witnesseth : That said parties of the first part, in considera- tion of the sum of dollars, the receipt of which is hereby acknowledged, do by these presents grant, bargain, sell, and convey unto said party cf the second part, his heirs and assigns, all the following described real estate, situated in thu county of ,and State of ,towit: (describing it by measure and boundaries.'). To have and to hold the same, with the appur- tenances and every part thereof, forever. And said (here insert the name of the party or par- ties warranting, it being desirable in some cases that the warranty shall be made by only one of the parties conveying), do (or does) hereby covenant, promise, and agree, to and with said party of the second part, that he is (or they are) lawfully seized in his (or their) own right, of an absolute and indefeasi- ble estate of and in all and singular the above granted and described premises, with the appur- tenances; that he has good right to convey the same ; that he guarantees the quiet possession thereof; that the same are free, clear, and dis- charged of and from all incumbrances of what- ever nature or kind soever, and that he (or they) will warrant and forever defend the title to the same unto the said party of the second part, his heirs and assigns, against all and every person or persons whomsoever, lawfully claiming or to claim the same. In witness whereof, the said parties of the first part have hereunto set their hands and seals, the day and year first above written. A. B. \Seal.\ W. B. \Seal.\ For form of ACKNOWLEDGMENT, see that title. Con veyanoe General Warranty Deedi By Attorney Short Form. This conveyance, made this day of , A. D. , witnesseth : That A. B., of county, in the State of, by A. A., his attorney in fact, convey said war- rants to C. D., of county, in the State of , for the sum of dollars, all the following De- scribed real estate, situated in the county of , d-4th Sess. 67. e-Id. f-i Gross, 90. g-R. S. l8, 2927. fc-Id. \ 2929. i-Id. 2919. CONVEYANCES. 277 -*nd State of , to wit : (dtscribing it by metes tnd bounds). Witness the grantor's hand, the day and year first above written. (Signed) A. B., by A. A. For form of ACKNOWLEDGMENT, see that title. lonveyance Oeneral Warranty Deed. By Attorney Long Form. This conveyance, made this day of , A. D. , by A. B., of county, in the State of , of the first part, by A. A., his attorney in fact, to C. D., of county, in the State of , of the second part, witnesseth : That said party of the first part, in considera- tion of the sum of dollars, the receipt of which is hereby acknowledged, does by these presents grant, bargain, sell, and convey unto said party of the second part, his heirs and assigns, all the following described real estate, situated in the county of , and State of , to wit: (describe .it). To have and to hold the same, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining, unto the said party of the second part, his heirs and assigns forever. And said (here insert the name of the party warranting), only for himself, his heirs, executors, or adminis- trators, does hereby covenant, promise, and agree, to and with said party of the second part, that at the delivery of these presents he was law- fully seized, in his own right, of an absolute and ir, defeasible estate of inheritance, in fee simple, o'" and in all and singular the above granted and discribed premises, with the appurtenances; that he has good right to convey the same ; that hj guarantees the quiet possession thereof; that the same are free, clear, discharged, and unin- cambered, of and from all (former and other grants, ti'.les, charges, estates, judgments, taxes, assessments, and) incumbrances of whatever nature or kind soever ; and that he will warrant and forever de- ft rid the title to the same unto said party of the si xond part, his heirs and assigns, against said p Uty of the first part, his heirs, and all and every p irson or persons whomsoever, lawfully claim- 11 g or to claim the same. In witness whereof, the said party has hereunto li ! t his hand and seal, the day and year first above written. A. B. [Seal.\ By A. A., his attorney in fact. For form of ACKNOWLEDGMENT, see that title. Conveyance Special Warranty I>eed. Short Form. This conveyance, made this day of , A. D. , witnesseth : That A. B. and his wife W. B.,of county, ir the State of , convey to C. D. , of county, in the State of , for the sum of dollars, all their estate, right, title, and interest as derived liom their grantors therein (or other-wise , as the '.use may be), in and to the following described real estate, situated in the county of , and State of , to wit: (describe it by metes and bounds, or (opv description from last grantor' s deed). Witness the grantors' hands and seals, the day and year first above written. A. B. f.Si/.l W. B. \Sral. \ For form of ACKNOWLEDGMENT, see that title. Conveyance Special Warranty Deed. Long Form. This conveyance, made this day of , A. D. , by A. B. ('and W. B. his wife', of county, in the State of , of the first part, to C. D., of county, in the State of , of the second part, witnesseth : That said parties of the first part, in considera- tion of the sum of dollars, the receipt of which is hereby acknowledged, do by these pres- ents grant, bargain, sell, and convey unto said party of the second part, his heirs and assigns, all the following described real estate, situated in the county of , and State of , to wit : (de- scribing it by metes and bounds). To have and to hold the same, together with til and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any- wise appertaining, unto said party of the second part, his heirs and assigns, forever ; and said party of the first part, for themselves, their heirs, executors, or administrators, do hereby covenant, promise, and agree, to and with said party of the second part, his heirs and assigns, that they will warrant and forever defend the within granted and described premises, with the appurtenances, against the claims of all persons claiming or to claim by, through, or under themselves (and them- selves ' only. In witness whereof, the said parties of the first part have hereunto set their hands and seals, the day and year first above written. A. B. \Seal.\ W. B. (Seal.} For form of ACKNOWLEDGMENT, see that title. Conveyance Quit-Claim Deed. Short Form. Any conveyance of lands worded in substance as fol- lows : "A. B. quit-claims to C. D. (here describe the premises), for the sum of (here insert the considera- tion)," the said conveyance being duly signed, sealed, and acknowledged by the grantor, shall be deemed a good and sufficient conveyance in quit-claim to the grantee, his heirs and assigns.* This conveyance, made this day of , A. D. , by A. B. and W. B. his wife, of county, in the State of , quit-claims to C. D., of county, in the State of , for the sum of dollars, all the following described real es- tate, situated in the county of , and State of , to wit : (describing' it ^y metes and bounds). Witness the grantors' hands and seals, the day and year first above written. A. B. \Seal.\ W. B. [Seal.] For form of ACKNOWLEDGMENT, see that title. Conveyance Qn it-Claim Deed. Lnng Form, with Warranty. This conveyance, made this day of , A. D. , by A. B., of county, in the State of , of the first part, to C. D., of county, in the State of , of the second part, witnesseth : That said party of the first part, in considera- tion of the sum of dollars, the receipt of which is hereby acknowledged, does by these presents remise, release, and forever quit-claim unto said party of the second part, his heirs and assigns, all the following described real estate, sit- uated in the county of and State of , to wit : To have and to hold the same, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any- wise appertaining, unto the said party of the sec- ond part, his heirs and assigns forever. And said A. B., for himself, his heirs, executors, or admin- istrators, does hereby covenant, promise, and agree, to and with said party of the second part, his heirs and assigns, that he has not made, done, committed, executed, or suffered any actor acts, thing or things, whatsoever, whereby, or by means whereof the within granted and described Eremioes, or any part thereof, now are incum- ered in any manner whatsoever. In witness whereof, the said party of the first part has hereunto set his hand the day and year first above written. A. B. \Seal.} For form of ACKNOWLEDGMENT, see that title. IOWA. Conveyances affecting real estate or any interest therein must be in writing, etc. See forms referred to below. Acknowledgment. See that title. Married women. The wife joining with her hu- band in the conveyance of real property is sufficient to pnss her interest in the same, whether her separate prop- erty or need. This conveyance, made this day of , A. D. , between E. A. (executor of the last will and testament, or administrator of the estate and effects), of A. B., of county, and State of , deceased, of the first part, and C. D., of county, in the State of , of the second part, witnesseth : That said party of the first part, by virtue of an order of sale issued out of the probate court of county, in the State of Kansas, and dated the day of , A. D. , the real property hereinafter described has been sold, in conformity with said order, and sale thereof confirmed, as required by law, and in conformity with the pro- visions of the act of the legislature of the State of Kansas, entitled " An act respecting executors and administrators, and the settlement of the es- tates of deceased persons," approved February 28, 1868, and in consideration of the sum of dollars (the same being more than three-fourths of the appraised value of said real property), the receipt of which is hereby acknowledged, does, by these presents, grant, bargain, sell, and convey unto the said party of the second part, his heirs and as- signs, forever, all the right, title, and interest of said deceased, discharged from liability for his debts, in and to all the following described real estate, situated in the county of , and State of Kansas, to wit : (describing it). To have and to hold the above granted prem- ises, together with the appurtenances and every part thereof, unto the said party of the second part, his heirs and assigns, forever. And the said party of the first part does hereby covenant with the said party of the second part, his heirs and assigns, that he has, in all things, observed the requirements of law, and of all orders in and concerning said sale. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. E. A., f.SVa/.] (Executor) or Administrator. Fr form of ACKfrowtspCMSNT, see that titk. The above deed approved by me thi day of , A. D. . P.J., [Seal.\ Probate Judge. Conveyance Gnardian's Deed. This conveyance, made this day of , A. D. , between G. N., guardian of I. I., minor heir of A. B. , of county, and State of Kansas, deceased, of the first part, and C. D., of county, in the State of , of the second part, witnesseth : That said party of the first part, by virtue of an order of sale issued out of the probate court of county, in the State of Kansas, and dated the day of , A. D. , the real property here- inafter described, has been sold, in conformity with said order, and sale thereof confirmed, as required by law. and in conformity with the pro- visions of the acts of the legislature of the State of Kansas, entitled "An act concerning guardians and wards," approved February 29, 1868, and "An act respecting executors and administra- tors, and the settlement of the estates of deceased persons," approved February 28, 1868, and in con- sideration of the sum of dollars (the same be- ing more than three-fourths of the appraised value of said real property), the receipt of which is hereby acknowledged, does, by these presents, grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns, forever, all the right, title, and interest of said minor in and to all the following described real estate, situated in the county of ,and State of Kansas, to wit: (describing it i>y metes and bounds). To have and to hold the above granted prem- ises, together with the appurtenances and every part thereof, unto the said party of the second part, his heirs and assigns, forever. And the said party of the first part does hereby covenant with the said party of the second part, his heirs and assigns, that he has, in all things, observed the requirements of law, and of all orders, in and concerning said sale. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. G. N., [Seat.i Guardian. For form of ACKNOWLEDGMENT, see that title. The above deed approved by me this d*v of ,A. D. . P.J., ' [Seal.} Probate Judge Conveyance Sheriff's Deed. After Sale on Execution. This conveyance, made this day of , A. D. , between S. F., sheriff of county, and State of Kansas, of the first part, and E. F., of county, and State of , of the second part, witnesseth : That, whereas, on the day of , A. D. , in an action then pending in the district court of county, in the judicial district of the State of Kansas, judgment was rendered in favor of A. B., and against C. D.,for the sum of dollars, and the further sum of dollars, as costs of suit. And whereas, S. F., sheriff of county, and State of Kansas, by virtue of an execution issued out of the district court of county, in the judicial district of the State of Kansas, upon said judgment, and to said sher- iff directed and delivered, commanding him that of the goods and chattels of said judgment debtor he cause to be made the aforesaid judgment and costs, and for want of goods and chattels, he cause the same to be made of the lands and tene- ments of said debtor upon which execution was indorsed the amount of debt, damages and costs, for which said judgment was entered did levy said execution upon the real estate hereinafter described, and make sale thereof, in conformity with the provisions of an act of the legislature of the State of Kansas, entitled "An act to es- tablish a code of civil procedure," approved February 25, 1868: Therefore, the said party of the first part, sheriff aforesaid, by virtue of said execution, and in con- sideration of the sum of dollars (the same be- ing more tJwm two-thirds the appraised value of said 280 CONVEYANCES. real estate), the receipt of which is hereby ac- knowledged, does hereby grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns, forever, all the estate, right, title, and interest of said C. D. , judgment debtor aforesaid, whereof he was seized or possessed at and after the time when said real estate became liable to the satisfaction of said judgment, in and to all the following described real estate, situated in county, in the State of Kansas, to wit : (describing it by metes and bounds). To have and to hold the same, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, forever; and the said party of the first part does hereby covenant with the said party of the second part, his heirs and assigns, that in pursuance of the writ of execution aforesaid , he did levy the same, have appraisement made, make return of the same, give public notice by advertisement, and make sale, and in all things observed the require- ments of law, and of all orders in and concerning said sale. In witness whereof, the said party of the first part, sheriff aforesaid, has hereunto set his hand, the day and year first above written. S. F., [Seal.] Sheriff. Conveyance Sheriff's Deed. On Order of Sale. This conveyance, made this day of , A. D. , between S. F., sheriff of county, and State of Kansas, of the first part, and E. F., of county, and State of , of the second part, witnesseth : That the said party of the first part, sheriff aforesaid, by virtue of an order of sale issued out _>f the district court of county, in the judicial district of the State of Kansas, on a judgment to enforce a lien rendered by the district court of county, in the State of Kan- sas, on the day of , A. D. , in an action then and there pending, in favor of A. B., judg- ment creditor, and against C. D., judgment debtor, and for the sale of the lands and tene- ments hereinafter described and granted, and to said sheriff directed and delivered : commanding him that of said lands and tenements of said judg- ment debtor he cause to be made the aforesaid judgment, costs, and charges hereinafter men- tioned upon which order of sale was indorsed the amount of debt, damages, costs, and charges for which said judgment was entered by him levied upon said lands and tenements, and sale thereof made, in conformity with the provisions of an act of the legislature of the State of Kansas, entitled ' An act to establish a code of civil procedure," approved February 25, 1868, and an act of the legislature of the State of Kansas, en- titled "An act to amend the code of civil pro- cedure," being chapter 80 of the General Statutes of 1868, and to amend " Section 27 of chapter 22 of the General Statutes of 1868," approved March 1, 1870, and in consideration of the sum of dollars, the amount and amounts for which said judgment was rendered, due as well to said plaintiff as other parties to said action having liens upon the said lands and tenements, by mort- gage or otherwise, with interest thereon, and costs of suit, taxes, insurance, attorney's fees, and interest thereon, and all other expenses ac- crued and to accrue in said action (the same being more than two-thirds the appraised value of said real estate), the receipt of which is hereby acknowl- edged, does hereby grant, bargain, sell, and con- vey unto the said party of the second part, his heirs and assigns, forever, all the estate, right, title, and interest of said C. D., judgment debtor aforesaid, whereof he was seized or possessed at and after the time when said real estate be- came liable to the satisfaction of said judgment, in and to all the following described real estate, situated in county, in the State of Kansas, to wit : (describing it by metes and bounds). To have and to hold the same, together, etc. (the balance of this deed is the same as the preceding tifte. inflxding the fenn a/ acknowledgment). Conveyance Tax Deed. Lands or Lots. Know all men by these presents : That, whereas, the following described real property, viz. (describing /hr entire parcel subject to taxation i, situated in the county of , and State of Kansas, was subject to taxation for the year A. D. , and whereas, the taxes assessed upon said real property for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned ; and whereas, the treasurer of said county did, on the day of , A. D. , by virtue of authority in him vested by law, at (an adjourned sale of), the sale begun and publicly held, on the first Tuesday of , A. D. , ex- pose to public sale, at the county-seat of said county, in substantial conformity -with all the requisitions of the statute in such case made and provided, the real property above described, for the payment of taxes, interest, and cost then due and remaining unpaid upon said property; and whereas, at the place aforesaid, C. D., of the county of , and State of .having offered to pay the sum of dollars and cents, being the whole amount of taxes, interests, and costs, then due and remaining unpaid on said property, for (describing- that portion of the entire parcel sold"i t which was the least quantity bid for ; and pay- ment of said sum having been by him made to the said treasurer, the said property was stricken off to him at that price. (When there h:is been assignments, add: And whereas, the said C. D. did, on the day of , A.- D. , duly assign the certificate of the sale of the property as aforesaid, and all his right, title, and inter- est to said property, to E. F., of the county of , and State of .) (And whereas, the said E. F. did, on the day of , A. D. , duly assign the certificate of the sale of the property as aforesaid, and all his right, title, and interest to said property, to G. H., of the county of , and State of .) And whereas, the subsequent taxes of the year , amounting to the sum of dollars, have been paid by the purchaser, as provided by law ; and whereas, years have elapsed since the date of said sale, and the said property has not been redeemed therefrom, as provided by law : Now, therefore, I, C. C., county clerk of the county aforesaid, for and in consideration of the sum of dollars and cenU , taxes, costs. and interest due on said land for the year A. D. , to the treasurer paid as aforesaid, and by virtue of the statute in such case made and pro- vided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said A. B. (or G. H., as t/ie case may be), his heirs and assigns, the real property last hereinbe- fore described, to have and to hold unto him, the said A. B. for G. H. i, his heirs and assigns, for- ever, subject, however, to all ri.jhts of redemption provided by law. In witness whereof, I, C. C., county clerk as aforesaid, by virtue of authority aforesaid, have hereunto subscribed my name and affixed the official seal o said county, on this day of , A. D. . C. C., [Seal.] County Clerk. For form of ACKNOWLEDGMENT, see that tide. Conveyance Tax Deed. Property Bid Off by the County. Know all men by these presents : That, whereas, the following described rea' property, viz. (describing the entire parcel subject tc taxation), situated in the county of , and State of Kansas, was subject to taxation for the year A. D. , and whereas, the taxes assessed upon said real property for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned ; and whereas, the treasurer of said county did, on the day of , A. D. , by virtue of authority in him vested by law, at (an adjourned sale of}, the sale begun and publicly held, on the first Tuesday of , A. D. , ex- pose to public sale, at the county seat of said county, in substantial conformity with all the re- quisitions of the statute in such case made and provided, the real property above described, f( CONVEYANCES. the payment of taxes, interest, and cost then due and remaining unpaid upon said property; and whereas, at the place aforesaid, said property could not be sold for the sum of dollars and cents, being the whole amount of tax and charges thereon, the same was bid off by the county treasurer for said county ; and whereas, on the day of , A. D. , C. D., of the county of , and State of , having paid into the county treasury of the county first aforesaid the sum of dollars and cents, being equal to the cost of redemption of said property at that time ; And whereas, the said C. D. did, on the day of , A. D. , duly assign the certificate f the sale of the property as aforesaid, and all his right, title, and interest to said property to E. F., of the county of , and State of ; And whereas, the subsequent taxes of the year , amounting to the sum of dollars, have been paid by the purchaser, as provided by law ; And whereas, years have elapsed since the date of said sale, and the said property has not been redeemed therefrom, as provided by law : Now, therefore, I, C. C., county clerk, etc. (the balance of this deed is thr sntne as the preceding one, including the form of acknoTvledgmtnt). KENTUCKY. Forms printed and sold by Wilstach, Baldwin & Co., Cincinnati, Ohio. Conveyances of real estate or any interest therein are jiven below. Acknowledgment. See that title. Corporations. See title ACKNOWLEDGMENT, ante. Married women. Separate examination is not ne- cessary. Recording conveyances of any title or interest in land, or deed of trust, or mortgage, and all other instru- ments affecting such title or interest, are not valid against :i purchaser for a valuable consideration without notice, or any creditor, until it is acknowledged or proved and lodged in the county clerk's office for record. 1 No deed is held to be legally lodged for record until the tax be paid thereon ; b by non-residents within four months; other deeds by residents must be recorded within sixty days. * Seals are abolished. ^Afitnesses are not required. For LONG FORM CONVEYANCES, see INDIANA FORMS, ante, and GENERAL FORMS, post. Conveyance Warranty Deed. Short Form* This conveyance, made this day of , witnesseth : That A. B. , of county, in the State (or Com- monwealth) of .conveys and warrants to C. D., of county, in the State (or Commonwealth) of , for the sum of $ , all the following de- scribed real estate, situated in the county of , and State (or Commonwealth) of , to wit: (here follows the description}. In witness whereof, the said grantor has here- unto set his hand, the day and year first above written. A. B. For form of ACKNOWLEDGMENT, see that title. Conveyance General Warranty Deed. By Attorney Short Form. This conveyance, made this day of , witnesseth : That A. B., of county, in the Stato (or Com- monwealth) of , by A. A., his attorney in fact, conveys and warrants to C. D., of county, in the State (or Commonwealth) of , for the sum of dollars, all the following described real estate, situated in the county of , and State (or Com- monwealth) of , to wit : (here follows the descrip- tion). In witness whereof, said grantor has hereunto set his hand, the day and year first above written. (Signed) A. B., By A. A., his attorney in fact. For form of ACKNOWLEDGMENT, see that title. Conveyance Special Warranty Deed. Short Form. This conveyance, made this day of , witnesseth : That A. B.,of county, in the State (or Com- monwealth ) of , conveys to C. D. , of county, in the State (or Commonwealth) of , for the sum of dollars, all his right, title, and interest 'as derived from ) in and to all the following de- scribed real estate, situated in the county of , and State (or Commonwealth) of , to writ : (here folio-Ms the description'). In witness whereof, said grantor has hereunto set his hand, the day and year first above written. A. B. For form of ACKNOWLEDGMENT, see that title. Conveyance Quit-Claim Deed. This conveyance, made this day of , witnesseth : That A. B., of county, in the State (or Com- monwealth) of , quit-claims unto C. D., of county, and State (or Commonwealth) of , for the sum of dollars, all the following described real estate, situated in the county of , and State (or Commonwealth) of , to wit : (here fol- lows the description). In witness whereof, said grantor has hereunto set his hand, the day and year first above written. A. B. For form of ACKNOWLEDGMENT, see that title. Conveyance Trust Deed. Short Form. This conveyance, made this day of , witnesseth : That A. B., of county, in the State (or Com- monwealth) of , conveys (and warrants) to C. D., of county, in the State (or Commonwealth) of , and E. F.,of county, in the State (or Commonwealth) of , for the sum of dollars, all the following described real estate, situated in the county of , and State (or Commonwealth) of , to wit : (here follows the description). In trust, nevertheless, for the following pur- poses, to wit : (here set forth the objects and pur- poses to be effected ). In witness whereof, said parties have hereunto set their hands, the day and year first above writ- ten. (Signed) A. B. C. D. E. F. For form of ACKNOWLEDGMENT, see that title. Conveyance Administrator's, Execu- tor's, Trustee's, etc., Deed. This conveyance, made this day of , witnesseth : That as (administrator of the estate and effects of D. D., deceased, or executor of the last will and tes- tament of D. D., deceased, or guardian of the persons and estates of , , , minor heirs of D. D., deceased, or trustee of ), etc., of county, in the State (or Commonwealth) of , by order of the circuit court of county, in the judicial district of the Commonwealth of Kentucky, en- tered in volume of , on page , conveys to C. D., of county, in the State (or Common- wealth) of , for the sum of dollars, all the following described real estate, situated in county, and State (or Commonwealth) of , to wit : (here follows the description). In witness whereof, said , as (administrator, etc.), aforesaid, has hereunto set his hand, the day and year first above written. (Signature and representative title.) For form of ACKNOWLEDGMENT, see that title. LOUISIANA. Conveyances of real estate or any interest may be made before a notary public, who reduces the contract to writing, and together with the parties, and in the presence of two competent witnesses (three if the grantor be blind), signs it, and adds his certificate, made in the usual form and acknowledged. Acknowledgment. See that title. Corporations execute conveyances in the same man- ner as private individuals. Married women. See that title. Recording is necessary in the parish where the prop- erty is situated. Conveyances take effect against third parties from the date of such record only. a-G. S. 1873, Ch. 24. b-G. S. 1873, p. ay), B ti. e G. S. 1873, p 255, Ch. 24, i. S2 CONVEYANCES. Seals or scrolls are not authorized. Bee ACKNOWLEDGMENT, ante ; GENERAL FORMS, post. MAINE. See conveyances referred to below. Acknowledgment. See that title. Married women need not be examined separately. Recording is necessary in order to render them valid against subsequent conveyances and attach inentO Seals must be wafers or wax. Witnesses. One is necessary ; two customary See MASSACHUSETTS FORMS, post. MARYLAND. Conveyances of an estate of inheritance, or freehold, or any declaration of use, or estate for above seven Years, must be by deed in writing, etc. No words of in- heritance are necessary to convey an estate in fee sim- ple. The word "grant" in a deed is sufficient to convey .the whole interest and estate of the grantor. | Acknowledgment. See that title, ante. Consideration must be stated when a consideration is necessary. Married women need not be examined separately. Parties conveying and to whom conveyed must be set forth in the instrument. Recording. Where land lies in more than one county, or in the city of Baltimore and a county adjoin- ing, the deed must be recorded in each of them. Con- veyances, etc., must be recorded within six months fr..m date, in the county or city where the land affected lics. k Seals are necessary ; a scroll is sufficient. Witnesses. At least one is necessary. See GENERAL FORMS, post. MASSACHUSETTS. Conveyances of real estate or any interest therein must be made in writing, etc. Acknowledgment by the grantors, or one of them, is necessary. See title ACKNOWLEDGMENT, ante. Married women need not be examined separately. Recording is necessary to render the conveyance valid against subsequent bonafide purchasers or attach- ing creditors. Seals are necessary, 1 and should be wafer or wax. Witnesses are not necessary ; one is customary. Conveyance Warranty Deed. Know all men by these presents : That I, A. B., of - , in - county, State of - , in consideration of - dollars, to me paid by C. D., of - , in - county, State of - , the receipt of which I hereby acknowledge, do by these presents give, grant, bargain, sell, and con- vey unto said C. D.,his heirs and assigns, all that certain parcel of land situate in - , in - county, and State of - , bounded and described as follows : (here follows the description}, together with all the privileges and appurtenances to the said land in anywise appertaining and belong- ing. To have and to hold the above granted prem- ises unto said C. D., his heirs and assigns, to his and their use and behoof, forever. And I, the said A. B., for myself, my heirs, ex- ecutors, and administrator*, do covenant with said C. D., his heirs and assigns, that I am law- fully seized in fee of the afpregranted premises ; that they are free from all incumbrances; that I have good right to sell and convey the same to caid C. D. as aforesaid ; that I wiil, my heirs, ex- ecutors, and administrators shall, warrant and (defend the same to said C. D., his heirs and as- signs, forever, against the lawful demands of all persons. In witness whereof, I, the said A. B., have hereunto set my hand and seal, this - day of - . A. B. [L. s.J For form of ACKNOWLEDGMENT, see that title. Wife's Release of Dower. In witness whereof, I, the said A. B., and W., my wife, in token of her release of all right of dower (and homestead exemption), in said premises, have hereunto set our hands and seals, this - Jay of - . A. B. [L. s.l W. B. [L. s.] -R S.Ch 73,8. t 79 m-Comp. k-P.G.L.Art.24,$i3,i4. L. 34<. tt-Comp. l*ws, Signed, sealed, and delivered in the presence of us. W. T.,N. S. Conveyance Warranty Deed. Husband and Wife Wife' s Land. Know all men by these presents : That we, A. B., of , etc., and W. B., his wife, in her own right, in consideration of , to us paid, the receipt of which is hereby acknowl- edged, do by these presents give, grant, bargain, and sell unto C. D., his heirs and assigns, all that parcel of land situate in , in county, State of (describing it), and all the right, title, and interest which they, or either of them, have in or to the same or any part or parcel thereof. To have and to hold the above described real estate, with the appurtenances, to the said C. D., his heirs and assigns, to his and their use and be- hoof, forever. And the said A. B. , for himself, his heirs, ex- ecutors, and administrators, does hereby cove- nant with said C. D., his heirs and assigns, that immediately before the sealing and delivery hereof, he, the said A. B., and W. B., his wife, in her right, are lawfully seized in fee of the above conveyed real estate ; that the same is free from all incumbrances, and that the said A. B. , his heirs, executors, and administrators shall and will warrant and defend the same to the said C. D., his heirs and assigns, against the lawful claims and demands of all persons. In witness, etc. (as above). MICHIGAN. Conveyances of any estate or interest in real property must be in writing, etc. See conveyances referred to below. Acknowledgment. See that title, ante. Recording must be according to the provisions of the statute, or the conveyance will be void as against any sub- sequent purchasers in good faith for value. m Seals are not necessary," but customary. Witnesses. Two are necessary. See GENERAL FORMS, post. MINNESOTA. Conveyances affecting real estate or any interest therein must be in writing, etc. See conveyances re- ferred to below. Acknowledgment. See that title, ante. Dower is released by wife joining in the conveyance with the husband. Married woman may convey her separate estate by the husband joining. She is liable on the covenants in the deed the same as though she were a feme sole. Separate acknowledgment is not required. Recording in the office of the register of deeds of th county in which the land is situate is necessary. Un- less so recorded it is void against subsequent purchasers in good faith, for valuable consideration, whose convey- ance is first recorded, or against attachments levied, or judgments lawfully obtained before recording.' Seals are necessary. Witnesses. Two are necessary. See GENERAL FORMS, post. MISSISSIPPI. Conveyances, etc., of any estate or interest in lands must be in writing, elc. A deed of quit-claim or release conveys all the estate of the grantor. P See forms re- ferred to below. Acknowledgment. See that title, ante. Dower may be relinquished either by joining in the conveyance or by a separate instrument. Married woman need ot be examined privately and apart from het husband. Recording in the offices of the chancery clerks of the respective counties in which the land is situate is neces- sary to affect subsequent purchasers, mortgagees, etc. Seals. A printed impression or scroll is sufficient. 1 See GENERAL FORMS, post. MISSOURI. Conveyances, etc., of any estate or interest in real es- tate must be in writing, etc. The words " grant, bar- gain, and sell " imply covenants. Acknowledgment. See that title, ante. Corporations executing conveyances must attach their corporate seal. o-G. S. Ch. 40, 3 21 ; 1 8 Minn. 405. 0-33 Miss. 392 ; 34 Id. 18. q-8 S. & M. 480 ; o Id. 3,4. CONVEYANCES. 28} D^wer. See title ACKNOWLEDGMENT, ante. Married women need not be examined separate from their husbands. Recording in the county where the real estate is sit- uated is necessary in order to render the conveyance ef- fective against purchasers, etc., without notice. Seals. A scrawl is sufficient. Witnesses are not necessary. Conveyance Warranty Deed. Know all men by these presents : That I, A. B.,of county, in the State of , have this day of , for and in consideration of the sum of dollars to me in hand paid *have granted, bargained, and sold, and by these pres- ents do grant, bargain, sell and convey unto C. D., Cf county, in the State of , the following jt;srribed tract or parcel of land, situate in the eaunty of , in the State of , that is to say (km fallows the description). To have and to hold the premises hereby con- veyed, with all the rights, privileges, and appur- tenances thereto belonging or in anywise apper- taining, unto the said C. D., his heirs and assigns, forever. And I, the said A. B., hereby covenant to and with said C. D., his heirs and assigns, for myself, my heirs, executors, and administrators, to war- rant and defend the title to the premises hereby conveyed against the claim of every person whomsoever * * In witness whereof, I have hereunto subscribed my name and affixed my seal, this day of . A. B. riVrt/.] For form of ACKNOWLEDGMENT, see that title. Conveyance Quit-Claim Deed. Follow from the * : do remise, release, and for- ever quit-claim unto C. D., his heirs and assigns, the following described tract or parcel of land, situate in the county of , in the State of , that is to say (here follows the description). In witness whereof, etc. (as above). Conveyance Special Warranty. All that is necessary to convert the foregoing form into a special warranty deed is to add at the * " Claiming by, through, or under the said A. B." MONT AM A. Conveyances, etc., of any interest or estate in lands must be in writing, etc. See conveyances referred to below. Acknowledgment. See that title, ante. Corporations. See title ACKNOWLEDGMENT, ante. Recording is necessary to the validity of a convey- ance, etc., as against subsequent purchasers and mort- gagees in good faith, for value and without notice. See GENERAL FORMS, post. NEBRASKA. Conveyances, etc., of any estate or interest in real property must be in writing, etc. See forms referred to below. Acknowledgment. See that title, ante. Curtesy is barred by husband joining in wife's deed. Dower is barred by wife joining in husband's deed. Married women need not be separately examined. Recording. Delivery fur record to the county clerk for record or to the register of deeds in the county in which the lands lie is necessary to render a convey- ance effectual against all creditors and subsequent pur- chasers in good faith, without notice. Subscribing by the grantor is necessary. Witnesses. At least one is necessary. See KANSAS and OHIO FORMS, ante and post. NEVADA. Conveyances, etc., of any estate or interest in real es- tate must be in writing, etc. See forms referred to below. Acknowledgments. See that title, ante. Married women should be examined apart from their husbands. Recording is necessary to render a conveyance valid as against subsequent purchasers in good faith, and for a valuable consideration when his conveyance is first ecorded. Seal. A scroll is sufficient. See GENERAL FORMS and OHIO FORMS, post NEW HAMPSHIRE. Conveyances, etc., of any estate or interest m real property must r,e in writine, etc. See forms referred t( below. Acknowledgment. See that title, ante. Married women. See title ACKNOWLEDGMENT ante. Recording of any conveyance must be in the offie of the regist. r of rli-eds in the county wherein thi real estate is situated in order to be valid against subse- quent purchasers, mortgagees, etc. Seals are necessary. Witnesses. Two are required. See GENERAL FORMS and MASSACHUSETTS FORMS, post. NEW JERSEY. Conveyances are by the common law forms. Acknowledgment. See that title, ante. Dower is relinquished by wife's joining in the deed. Heirs. This word is necessary to convey a fee simple. Married women must be separately examined. Recording must be within fifteen days after sigr.irjr, sealing, and delivering, or they are void against subse- quent bonti Jide purchasers or mortgagees without -notice. Seals are necessary. A scroll is not sufficient Witnesses. One is usu.-.l but not necessary. Ordinary Warranty D-ei Short Form. This conveyance, made this day of , by A. B. , of county, and State of , of the first part, to C. D., of county, and State of , of the second part, witnesseth : That said party of the first part, for the con- sideration of dollars, the receipt of which is hereby acknowledged, has and by these presents does grant, bargain, sell, and convey unto said party of the second part, his heirs and assigns, all that tract and parcel of land, situate in , in county, and State of , to wit : (here follows the description}, together with the rights, mem- bers, privileges and appurtenances, and the re- versions and remainders, rents, issues, and profits thereof. To have and to hold the same unto said party of the second part, his heirs and assigns, to his and their only use, benefit, and behoof, forever. And the said party of the first part does, for himself, his heirs, executors, and administrators, covenant with said party of the second part, his heirs and assigns, that * * at the sealing and delivery hereof he is the owner in fee simple of the said premises hereby granted or intended so to be ; that the same are free and clear of all charges and incumbrances whatsoever, and that he and they the said premises unto said party of the second part, his heirs and assigns, against all persons lawfully claiming or to claim the same, shall and will warrant and forever defend. In witness whereof, said party of the first part has hereunto set his hand and seal, the day and year first above written. A. B. [L. s.J Signed, sealed and delivered in) presence of W. T. J Conveyance Special Warranty. Convert the above form into a special warranty deed by substituting for the matter following the * * " he has not done, or suffered to be done, anything where- by said premises hereby granted or intended so to be are or may be in any manner incumbered or charged ; and that he and they the said premises unto said party of the second part, his heirs and as- signs, against all persons lawfully claiming or to claim the same, by, through, or under said parties of the first- part (or either of them) shall and will warrant and forever defend. In witness whereof, etc. (as above). MECHANICS' LIEN LAW OF NEW JERSEY OF THE LIEN. Every building hereafter erected or built within this state shall be liable for the pay- ment of any debt contracted and owing to any person for labor performed or materials fur- nished for the erection and construction there- of, which debt shall be a lien on such building, and on the land whereon it stands, including the lot or curtilage whereon the same is erected. 284 CONVEYANCES. Whenever any building shall be erected in whole or in part by contract in writing, such building and the land whereon it stands shall be liable to the contractor alone for work done or materials furnished in pursuance of such contract ; provided, said contract, or a dupli- cate thereof, together with the specifications accompanying the same, or a copy or copies thereof, be filed in the office of the clerk of the county in which such building is situate before such work done or materials furnished. Whenever any master workman or con- tractor shall, upon demand, refuse to pay any person who may have furnished materials used in the erection of any such house or other building, or any journeyman or laborer em- ployed by him in the erecting or constructing any building, the money or wages due to him, it shall be the duty of such journeyman, or laborer or materialman to give notice in writing to the owner or owners of such building of such refusal, and of the amount due to him or them and so demanded, and the owner or owners of such building shall thereupon be authorized to retain the amount so due and claimed by any such journeyman, laborer or materialman out of the amount owing by him or them on the contract, or that may there- after become due from him or them on such contract for labor or materials used in the erection of such building, giving the master workman or contractor written notice of such notice and demand ; and if the same be not paid or settled by said master workman or con- tractor, such owner or owners, on being satis- fied of the correctness of said demand, shall pay the same, and the receipt of such journey- man, laborer or materialman for the same shall entitle such owner or owners to an allowance therefor in the settlement of accounts between him and such master workman or contractor, or his representatives or assigns, as so much paid on account. When a notice or notices shall be served upon such owner or owners by any journey- man, laborer or materialman, under the pro- visions of this act, and notice thereof shall have been given by such owner or owners to the master workman or contractor, as required by said section, and said master workman or con- tractor shall, within five days after receiving the notice aforesaid, notify in writing the jour- neyman, laborer or person who has furnished materials that he disputes his or their claim, and requests him or them to establish the same by judgment, the owner shall not pay the claim until it is so established ; provided, the master workman or contractor shall notify him in writing that he has given the aforesaid notice to said journeyman, laborer or material- man. If the owner or owners of any building or other property which, by this act, is made the subject of liens for or toward the con- struction, altering, repair or improvement of which labor or services have been performed or materials furnished by contract, duly filed, shall, for the purpose of avoiding the pro- visions of this act, or in advance of the terms of such contract, pay any money or other val- uable thing on such contract, and the amunt still due to the contractor, after such payment has been made, shall be insufficient to satisfy the notices served in conformity with the provisions of this act, such owner or owners shall be liable in the same manner as if no such payments had been made. In all cases journeymen or laborers shall have priority and preference over any em- ployers of labor, contractors or materialmen for the payment of wages, without reference to the date when said journeymen or laborers shall have filed the lien or served the notices provided for in this act ; laborers or material- men giving notices in accordance with the provisions of the third section shall have priority and preference in the disposition of the moneys due and to grow due upon the contract over any persons claiming said moneys or any part thereof by reason of order or orders thereon or assignments thereof. If any building be erected by a tenant or other person than the owner of the land, then only the building and the estate of such ten- ant or other person so erecting such building, shall be subject to the Hen created by this act and the other provisions thereof, unless such building be erected by the consent of the owner of such lands in writing, which writing may be acknowledged or proved and recorded, as deeds are, and when so acknowledged or proved and recorded, the record thereof and copies of the same, duly certified, shall be evi- dence in like manner. Any addition erected to a former building, and any fixed machinery for gearing, or other fixtures for manufacturing purposes, shall be considered a building for the purposes of this act. The lien given by this act is hereby ex- tended to all mills and manufactories, of whatever description, within this state. The lien given by this act shall be and is hereby extended to all buildings of whatever description erected or to be erected in this state and the lots or curtilages whereon the same are erected, for all debts contracted by the owners thereof, or by 'any other person with the consent of the owner or owners in writing, for work done or materials furnished in and for the repairing or alteration of any such building; provided, however, that said lien shall not be valid against a bona fide purchaser or mortgagee before said lien is filed in the office of the clerk of the county in which said lot or curtilage is situate; and provided further, that work done or materials furnished under contract in and for such repairs or alterations shall be liable to the said contractor alone in the manner provided by this act. The lien given by this act is hereby ex- CONVEYANCES. 285 tended to all docks, wharves, and piers erected upon any navigable river in this state. Every building or part or parts of any building which shall hereafter be removed, shall, as provided, be subject to lien as given by this act. Any married woman, upon whose lands any building or buildings shall hereafter be erected or repaired, or whereon any fixtures shall be put, shall be taken as consenting to the same, and such building or buildings and curtilages whereon the same are erected shall be subject to the lien created by this act, unless said married woman shall duly file luith the clerk of the county court her protest against such construction or repairs. Nothing in this act shall make the lands of any person liable for any building or repairs not authorized by the owner, or built or done without the knowledge of the owner. Whereas it is the practice of owners of lots or tracts of land to dispose of the same to a builder or builders, taking therefor a mortgage or mortgages in excess of the pur- chase money price of said lot or tract of land, the mortgagee agreeing to pay such excess to the aforesaid builders from time to time, as the building or buildings progress, such mort- gages being known as advance money mort- gages; therefore, in all such transactions the building or buildings so erected shall be liable for the payment of any debt contracted and owing to any person or persons for labor per- formed or materials furnished for the erection and construction thereof, which debt shall be a lien on such building or buildings and on the land whereon they stand, including the lot or curtilage whereon the same are erected, and the lien for labor performed or materials furnished for the erection and construction of any such building or buildings shall be a prior lien to the lien of any mortgage created on such building or buildings and lot or tract of ground to secure either in whole or in part any advances in money to be used in and about the construction of such building or buildings, but to the extent only of the moneys remaining to be advanced by the mortgagee under such agreement ; provided, such mort- gage shall be recorded or registered before the filing of any claim in pursuance of this act. Every mortgage given or to be given upon lands in this state shall have priority over any claim that may be filed in pursuance of this act to the extent of the money actually advanced and paid by the mortgagee and applied to the erection of any new building upon the mortgaged lands or any alterations, repairs or additions to any building on said lands ; provided, such mortgage be registered or recorded before the filing of any such claim. OF THE CLAIM. Every person intending to claim a lien under the provisions of this act shall, within four months after the labor is performed or the materials furnished for which such lien is claimed, file his or her claim in ihe office of the clerk of the county where the building and land subject to such lien is situate, which claim shall contain : A description of the building and of the lot or curtilage upon which the lien is claimed, and of its situation, sufficient to identify the same ; The name of the owner or owners of the land or of the estate therein on which the lien is claimed; The name of the person who contracted the debt, or for whom, or at whose request the labor was performed or the materials furnished for which such lien is claimed, who shall be deemed the builder; A bill of particulars exhibiting the amount and kind of labor performed and of materials furnished, and the price at which and times when the same was performed and furnished, and giving credit for all the pay- ments made thereupon and deductions that ought to be made therefrom, and exhibiting the balance justly due to such claimant, which statement, when the work or materials or both are furnished by contract, need not state the particulars of such labor or materials further than by staling, generally, that certain work therein stated was done by contract at a price mentioned ; and such bill of particulars and statements shall be verified by the oath of the claimant or his agent in said matter, setting forth that the same is for labor done or materials furnished in the erection of, addition to, repair of, or alteration in or of the building in such claim described, at the times therein specified, and that the amount as claimed therein is justly due ; and when such claim shall not be filed in the manner or within the time aforesaid, or if the bill of particulars shall contain any willful or fraudulent mis- statement of the matters above directed to be inserted therein, the building or lands shall be free from all lien for the matters in such claim. No debt shall be a lien by virtue of this act, unless a lien claim is filed as hereinbefore provided, within four months from the date of the last work done or materials furnished for which such debt is due ; nor shall any lien be enforced by virtue of this act, except as in the manner provided. DISCHARGE OF LAND FROM LIEN. Such land and building may be dis- charged from any lien created by this act : By payment and receipt therefor, given by such claimant, which, when the same is executed in the presence of, and is attested by any officer entitled to take the acknowledg- ment of the execution of a deed, or when acknowledged or proved before such officer, shall be filed by such clerk, and the words -86 CONVEYANCES. " discharged by receipt " shall he entered by him in said lien docket, opposite the entry of said lien; By paying to said county clerk the amount of said claim with interest and costs; which amount said clerk shall pay over to said claimant; By the expiration of the time limited for issuing a summons on such lien claim, without any summons being issued, or without notice thereof endorsed on said claim ; By filing an affidavit that a notice from the owner to the claimant, requiring such claimant to commence suit to enforce such lien in thirty days from the service of such notice; and the lapse of thirty days after such service without such suit being commenced, or without any entry of the time of issuing such summons being made on such claim ; When it shall be made to appear by affidavit or otherwise, to the satisfaction of the justice of the supreme court holding the circuit court in the county wherein said lien is filed, that said lien has been duly paid and satisfied, and that the claimant under said lien, and his attorney, have died or removed from this state since the filing of said lien, and said lien still remains on record as unsatis- fied, the judge of said court shall have power to forthwith order the clerk of said court to enter a discharge of said lien in said lien docket, opposite the entry of said lien. A landowner desiring to contest a claim, and free his property from the lien, may pay to the county clerk the amount of such claim, with six months' interest, and $2$ in addition thereto, with notice to said clerk not to pay over the same until such claim be established by suit; which sum shall be paid to such claimant upon his obtaining judgment against such property in the manner prescribed, and said claim shall be a lien on said money, and said building and lands shall be dis- charged therefrom, and no execution shall issue against the same by virtue of such judg- ment ; but if such suit is not commenced within the time at which the said lands would be discharged by the provisions of this act without suit, or in case judgment be given therein without being against said lands, said sum shall be repaid to him by said clerk, and if judgment be given against such lands for an amount less than that so deposited, then the surplus shall be returned by said clerk to said landowner. NEW MEXICO. Conveyances, etc., of any estate or interest in lands must be in writing, etc. See forms referred to below. Acknowledgment. See that title, ante. Married women need not be examined separate and apart from their husbands. Recording is necessary to render the conveyance valid against bona fide purchasers, mortgagees, etc. Seals. A scroll is sufficient. See GENERAL FORMS, post NEW YORK. Conveyances take effect from the time of delivery which must be attested. THE law of New York has been materially changed so far as concerns the transfer and mortgage of property. The old common law forms are virtually abolished, and new and simplified ones substituted by the act of 1890, which is as follows. It will be seen to con- tain the necessary and proper forms : AN ACT to provide for short forms of deeds and mortgages. Approved by the Governor June 2, 1890. Passed, three-fifths being present. The People of the State of New York, rep- resented in Senate and Assembly, do enact as follows: SECTION I. In grants of freehold interests in real estate the following or similar cove- nants shall be construed as follows: (1) A covenant that the grantor " is seized of the said premises (described) in fee simple, and has good right to convey the same," shall be construed as meaning that such grantor at the time of the execution and delivery of the conveyance is lawfully seized of a good, abso- lute and indefeasible estate of inheritance in fee simple, of and in all and singular the premises thereby conveyed, with the tene- ments, hereditaments and appurtenances thereto belonging, and has good right, full power and lawful authority to grant and con- vey the same by the said conveyance. ( 2) A covenant that the grantee " shall quietly enjoy the said premises," shall be con- strued as meaning that such grantee, his heirs, successors and assigns shall and may, at all times thereafter, peaceably and quietly have, hold, use, occupy, possess and enjoy the said premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the grantor, his heirs, successors or assigns, or any person or persons lawfully claiming or to claim the same. (3) A covenant " that the said premises are free from incumbrances" shall be construed as meaning that such premises are free, clear, discharged and unincumbered of and from all former and other gifts, grants, titles, charges, estates, judgments, taxes, assessments, liens and incumbrances, of what nature or kind soever. (4) A covenant that the grantor will " exe- cute, or procure any further necessary assur- ance of the title to said premises" shall be construed as meaning that the grantor and his heirs, or successors, and all and every person or persons whomsoever lawfully or equitably deriving any estate, right, title, or interest of, in or to the premises conveyed by, from, under, or in trust for him or them, shall and will at ny time or times thereafter upon the reasona- ble request, and at the proper costs and charges in the law of the grantee, his heirs, successors and assigns, make, do and execute or cause to be made, done and executed, all CONVEYANCES. and every such further ami other lawful and reasonable acts, conveyances and assurances in the law for the better and more effectually vesting and confirming the premises thereby granted or so intended to be, in and to the grantee, his heirs, successors and assigns for- ever, as by the grantee, his heirs, successors or as>igns, or his or their counsel learned in the law shall be reasonably advised or re- quired. (5) A covenant that the grantor " will for- ever warrant the title " to the said premises shall be construed as meaning that the grantor and his heirs, or successors, the premises granted, and every part and parcel thereof, with the appurtenances, unto the grantee, his heirs, successors and assigns, against the grantor and his heirs or successors, and against all and every person and persons whomsoever lawfully claiming or to claim the same shall and will warrant and forever de- fend. (6) A covenant that the grantor "has not done or suffered anything whereby the said premises have been incumbered in any way whatever," shall be construed as meaning that the grantor has not made, done, com- mitted, executed, or suffered any act or acts, thing or things whatsoever, whereby or by means whereof, the above-mentioned and de- scribed premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be impeached, charged or incumbered in any manner or way whatsoever. \ 2. In any grant or mortgage of freehold interests in real estate, the words " together with the appurtenances and all the estate and rights of the grantor in and to said premises," shall be construed as meaning, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, dower, and right of dower, curtesy and right of curtesy, prop- erty, possession, claim and demand whatso- ever, both in law and in equity, of the said grantor of, in and to the said granted prem- ises and every part and parcel thereof, with the appurtenances. \ 3. In any deed by an executor of, 01 trustee under a will, the words "together with the appurtenances and also all the estate which the said testator had at the time of his decease in said premises, and also the estate therein which said grantor has or has powei to convey or dispose of, whether individually or by virtue of said will or otherwise," shall be construed as meaning, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the 19 estate, right, title, interest, property, posses- sion, claim and demand whatsoever, both in law and equity, which the said testator had in his lifetime, and at the time of his decease, or which the said grantor has or has power to convey or dispose of, whether individually or by virtue of the said last will and testament or otherwise, of, in and to the said granted premises, and every part and parcel thereof, with the appurtenances. \ 4. In mortgages of real estate and in bonds secured by such mortgages the follow- ing or similar covenants shall be construed as follows : (1) The words, "And it is hereby expressly agreed that the whole of the said principal sum shall become due at the option of said mortgagee or obligee after default in the pay- ment of interest for days, or after default in the payment of any tax or assessment for days after notice and demand," shall be consirued as meaning, and it is hereby ex- pressly agreed, that should any default be made in the payment of the said interest, or of any part thereof on any day whereon the same is made payable as above expressed, or should any tax or assessment, which now is or may be hereafter imposed upon the prem- ises hereinafter described, become due or payable, and should the said interest remain unpaid and in arrear for the space of days, or such tax or assessment remain unpaid and in arrear for days after written notice by the mortgagee or obligee, his executors, administrators, successors or assigns, that such tax or assessment is unpaid, and demand for the payment thereof, then and from thence- forth, that is to say, after the lapse of either one of said periods, as the case may be, the aforesaid principal sum, with all arrearage of interest thereon, shall, at the option of the said mortgagee or obligee, his executors, ad- ministrators, successors or assigns, become and be due and payable immediately there- after, although the period above limited for the payment thereof may not then have ex- pired, anything thereinbefore contained to the contrary thereof in anywise notwithstanding. (2) A covenant that the mortgagor " will pay the indebtedness, as provided in the mortgage, and if default be made in the payment of any part thereof, the mortgagee shall have power to sell the premises therein described, according to law," shall be con- strued as meaning that the mortgagor lor himself, his heirs, executors and administrator? or successors doth covenant and agree to pay to the mortgagee, his executors, administra- tors, successors and assigns the principal sum of money secured by said mortgage and also the interest thereon as provided by said mortgage. And if default shall be made in the payment of the said principal sum or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it 2 88 CONVEYANCES. shall be lawful for the mortgagee, his execu- tors, administrators or successors to enter into and upon all and singular the premises granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said mortgagor, his heirs, executors, administrators, successors or assigns therein at public auction, according to the act in such case made and provided, nnd as the attorney of the mortgagor for that purpose duly authorized, constituted and ap- pointed to make and deliver to the purchaser or purchasers thereof a good am! sufficient deed or deeds of conveyance in the law for the same in fee simple (or otherwise, as the case may be) and out of the money arising from such sale, to retain the principal and interest which shall then be due, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase money, if any there shall be, unto the mortgngor, his heirs, execu- tors, administrators, successors, or assigns, which sale so to be made, shall forever be a perpetual bar both in law and equity against the mortgagor, his heirs, successors and assigns, and against all other persons claiming or to claim the premises or any pnrt thereof by, from or under him, them or any of them. (3) A covenant " that the mortgagor will keep the buildings on the said premises in- sured against loss by fire, for the benefit of the mortgagee," shall be construed as mean- ing that the mortgagor, his heirs, successors and assigns will, during all the time, until the money secured by the mortgage shall be fully paid and satisfied, keep the buildings erected on the premises insured against loss or dam- age by 'fire, to an amount and in a com- pany to be approved of by the mortgagee, and will assign and deliver the policy or policies of such insurance to the mortgagee, his execu- tors, administrators, successors, or assigns, so and in such manner and form that he and they shall at all time and times, until the full payment of said moneys, have and hold the said policy or policies as a collateral and fur- ther security for the payment of said money, and in default of so doing, that the mortgagee or his executors, administrators, successors or assigns, may make such insurance from year to year, in a sum not exceeding the principal sum for the purposes aforesaid, and pay the premium or premiums therefore, and that the mortgagor will pay to the mortgagee, his ex- ecutors, administrators, successors or assigns, such premium or premiums so paid, with in- terest from the time of payment, on demand, and that the same shall be deemed to be se- cured by the mortgage, and shall be collecti- ble thereupon and thereby in like manner as the principal moneys, and in default of such payment by the mortgagor, his heirs, execu- tors, administrators, successors or assigns, or of assignment and delivery of policies as aforesaid the whole of the principal sum and interest secured by the mortgage shall, at the option of the mortgagee, his executors, admin- istrators, successors or assigns, immediately become due and payable. (4) A covenant that the mortgagor ' will execute any further necessary assurance of the title to said premises, and will forever warrant said title," shall be construed as meaning that the mortgagor shall and will make, execute, acknowledge, and deliver in due form of law, all such further or other deeds or assurances as may at any time hereafter be reasonably desired or required for the more fully and effectually conveying the premises by the mortgage described and thereby granted or intended so to be, unto the said mortgagee, his executors, administrators, successor or assigns, for the purpose aforesaid, and unto all and every person or persons, corporation or corporations, deriving any estate, right, title or interest therein, under the said indenture of mortgage or the power of sale therein contained, and the said granted premises against the said mortgagor, and all persons claiming through him will warrant and defend. \ 5. All covenants contained in any grant or mortgage of real estate shall bind the heirs, executors, successors, administrators and as- signs of the grantor or mortgagor, and shall inure to the benefit of the heirs, executors, administrators, successors and nssigns of the grantee or mortgagee, in the same manner and to the same extent, and with like effect, as if such heirs, executors, administrators, successors and assigns were so named in such covenants, unless otherwise in said grant or mortgage expressly provided. \ 6. The schedules hereto annexed contain forms of instruments such as are authorized by this act, and shall be taken as a part thereof, but nothing herein contained shall invalidate or prevent the use of other forms. 7. The register or county clerk of the county of New York and the county of Kings shall be entitled to charge for the recording of any instrument containing the above-men-, tioned covenants, or any of them at large, instead of the short forms thereof, in this act contained, the sum of five dollars in addition to the fee chargeable by law for such re- cording. \ 8. All existing acts and parts of acts inconsistent with this act are repealed. \ 9. This act shall take effect the first day of September, eighteen hundred and ninety. SCHEDULE A. ]>eed with Full Covenants. THIS INDENTURE, made the day of , in the year eighteen hundred and between of (insert occupation and resi- dence) of the first part, and of (insert occu- pation and residence) of the second part, WITNESSETH, that the said party of the first part, in consideration of dollars, lawful money of the United States, paid by the party of the second part, doth hereby grant and re- lease unto the said party of the second part, his CONVEYANCES. 289 heirs and assigns forever (description), together with the appurtenances and all the estate and rights of the party of the first part in and to said premises. TO HAVE AND TO HOLD the above granted premises unto the said party of the second part, his heirs and assigns forever. And the said party of the first part doth cove- nant with said party of the second part as fol- lows : First. That the party of the first part is seized of the said premises in fee simple, and has good right to convey the same. Second. That the party of the second part shall quietly enjoy the said premises. Third. That the said premises are free from incumbrances. Fourth. That the party of the first part will execute or procure any further necessary assur- ance of the title to said premises. Fifth. That the party of the first part will forever warrant the title to said premises. IN WITNESS WHEREOF, the said party of the first part hath hereunto set his hand and seal the day and year first above written. In the presence of: SCHEDULE B. Executor's Deed. THIS INDENTURE, made the day of eighteen hundred and between as executor of the last will and testament of late of deceased, of the first part, and of of the second part, witnesseth : That the said party of the first part, by virtu* of the power and authority to him given in and by the said last will and testament, and in con- sideration of dollars, lawful money of the United States paid by the said party of the sec- ond part, doth hereby grant and release unto the said party of the second part, his heirs and assigns forever (description), together with the appurtenances, and also all the estate which the said testator had at the time of his decease In said premises, and also the estate therein, which the said party of the first part has or has power to dispose of, whether individually, or by virtue of said will or otherwise. TO HAVE AND Tp HOLD the above granted premises unto the said party of the second part, his heirs and assigns forever And the said party of the first part covenants with said party of the second part that the party of the first part has not done or suffered any- thing whereby the said premises have been in- cumbered in way whatever. IN WITNESS WHEREOF the said party of the first part has hereunto set his hand and seal the day and year first above written. In the presence of: SCHEDULE C. Mortgage. THIS INDENTURE, made the day of in the year eighteen hundred and between of party of the first part, and of , party of the second part. WHEREAS, the said is justly indebted to the said party of the second part in the sum of dollars, lawful money of the United States, secured to be paid by his certain bond or obligation, bearing even date herewith, con- ditioned for the payment of the said sum of dollars, on the day of eighteen hundred and , and the interest thereon, to be computed from at the rate of per centum per annum, and to be paid. It being thereby expressly agreed that the whole of the said principal sum shall become due after default in the payment of interest, taxs or assessments, as hereinafter provided. NOW THIS INDENTURE WITNESSETH, that the said party of the first part for the bet- ter securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, and also for and in consideration of one dollar paid by the said party of the second part, the receipt whereof is hereby acknowledged, doth hereby grant and release unto the said party of the sec- ond part, and to his heirs (or successors) and assigns forever (description), together with the appurtenances, and all the estate and rights of the party of the first part in and to said prem- ises. TO HAVE AND TO HOLD the above granted premises unto the said party of the second part, his heirs and assigns forever. PROVIDED ALWAYS, that if the said party of the first part, his heirs, executors or adminis- trators, shall pay unto the said party of the second part, his executors, administrators or assigns, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, that then these presents, and the astate hereby granted, shall cease, determine and be void. And the said party of the first part covenants with the party of the second part as follows : First. That the party of the first part will pay the indebtedness as hereinbefore provided, and if default be made in the payment of any part thereof, the party of the second part shall have power to sell the premises therein described, according to law. Second. That the party of the first part will keep the buildings on the said premises insured against loss by fire for the benefit of the mort- gagee. Third. And it is hereby expressly agreed that the whole of said principal sum shall become due at the option of the said party of the second part after default in the payment of interest for days after default in the payment of any tax or assessment for days, after notice and demand. IN WITNESS WHEREOF, the said party of the first part hath hereunto set his hand and seal, the day and year first above written. In the presence of: Administration of Decedent's Estate. Letters of administration and letters testa- mentary are issued by the surrogate. Admin- istrators are required to give bond ; execu- tors are not required to give bond unless objec- tion is made and the surrogate satisfied that his circumstances are such that they do not afford adequate security to the creditors or persons interested for the due administration of the estate, and where he is not a resident of the State. The testator may, by provision in his will, relieve a non-resident executor from giving bonds. Before letters of admin- istration or testamentary are issued all heirs and legatees are cited by the surrogate to ap- pear and object, if they desire. Citations are served personally or by publication. Dttscent and Distribution of the Prop- erty of Decedents. 1. Real estate. Widow has common- law dower. Husband has courtesy in property of which wife dies seized. (See Married Women.} Real estate of intestate descends : I. To lineal descendants: 2. To father; 3. To mother; 4. To collaterals. Descendants take shares of parents, except when all are of equal consanguinity, when all share alike. 2. Personal estate. After debts are paid, personal property is distributed : I . One-third to the widow and the residue to children or their heirs or legal representatives ; 2. If there are r.o children, one-half is given to the 290 CONVEYANCES. widow and the other to the next of kin ; 3. If there is no descendant, parent, brother, sister, nephew or niece, the widow takes all ; 4. If there is no widow, the children and their rep- resentatives take all; 5. If there is no widow or children, all goes to the next of kin; post- humous children take as survivors ; married women's personal estates are distributed as men's, the husband taking to the same extent as a widow. LIEN LAW OF NEW YORK. Mechanics' lien on real property. A contractor, sub-contractor, laborer or material- man, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or sub-contractor, shall have a lien for the principal and interest of the value, or the agreed price, of such la- bor or materials upon the real property im- proved or to be improved and upon such im- provement, from the time of filing a notice of such lien, as prescribed in this article. Extent of lien. Such lien shall extend to the owner's right, title or interest in the real property and improvements, existing at the time of filing the notice of lien. If an owner assigns his interest in such real property by a general assignment for the benefit of creditors, within thirty days prior to such filing, the lien shall extend to the interest thus assigned. If labor is performed for, or materials furnished to, a contractor or sub-contractor for an im- provement, the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon. In no case shall the owner be liable to pay by reason of all liens created pursuant to this ar- ticle a sum greater than the value or agreed price of the labor and materials remaining un- paid, at the time of filing notices of such liens, except as hereinafter provided. Liens under contracts for public im- provements. A person performing labor for or furnishing materials to a contractor, his sub- contractor or legal representative, for the con- struction of a public improvement pursuant to a contract by such contractor with the state or a municipal corporation, shall have a lien for the principal and interest of the value or agreed price of such labor or materials upon the moneys of such corporation applicable to the construction of such improvement, to the extent of the amount due or to become due on such contract, upon filing a notice of lien as prescribed in this article. Liens for labor on railroads. Any per- son who shall hereafter perform any labor for a railroad corporation shall have a lien for the value of such labor upon the railroad track, rolling stock and appurtenances of such rail- road corporation and upon the land upon which such railroad track and appurtenances are situated, by filing a notice of such lien in the office of the clerk of any county wherein any part of such railroad is situated, to the ex- tent of the right, title and interest of such cor- poration in such property, existing at the time of such filing. The lien must be properly filed. Liability of owner for advance pay- ments, collusive mortgages and incum- brances. Any payment by the owner to a contractor upon a contract for the improve- ment of real property, made prior to the time when, by the terms of the contract, such pay- ment becomes due, for the purpose of avoiding the provisions of this article, shall be of no effect as against the lien of a sub-contractor, laborer or materialman under such contract, created before such payment actually becomes due. Terms of contract may be demanded. A statement of the terms of a contract pur- suant to which an improvement of real prop- erty is being made, and of the amount due or to become due thereon, shall be furnished upon demand, by the owner, or his duly au- thorized agent, to a sub-contractor, laborer or materialman performing labor for or furnish- ing materials to a contractor, his agent or sub- contractor, under such contract. Contents of notice of lien. The notice of lien shall state : 1. The name and residence of the lienor. 2. The name of the owner of the real prop- erty against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor. 3. The name of the person by whom the lienor was employed, or to whom he furnished or is to furnish materials ; or, if the lienor is a contractor or sub-contractor, the person with whom the contract was made. 4. The labor performed or to be performed, or materials furnished or to be furnished and the agreed price or value thereof. 5. The amount unpaid to the lienor for such labor or materials. 6. The time wheii the first and last items of work were performed and materials were furnished. 7. The property subject to the lien, with a description thereof sufficient for identification ; and if in a city or village, its location by street and number, if known. A failure to state the name of the true owner or contractor, or a mis- description of the true owner, shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he be- lieves it to be true. Filing of notice. The notice of lien may be filed at any time during the progress of the work and the furnishing of -the materials, or within ninety days after the completion of the contract, or the final performance of the work, CONVEYANCES. 291 or the final furnishing of the materials, dating from the last item of work performed or ma- terials furnished. The notice of lien must be filed in the clerk's office of the county where the property is situated. If such property is situated in two or more counties, the notice of lien shall be filed in the office of the clerk of each of such counties. Service of copy of notice. At any time after filing the notice of lien, the lienor may serve a copy of such notice upon the owner, by delivering the same to him personally, or if the owner cannot be found, to his agent or attorney, or by leaving it at his last known place of residence in the city or town in which the real property or some part thereof is situated, with a person of suitable age and discretion, or by registered letter addressed to his last known place of residence, or, if such owner has no such residence in such city or town, or cannot be found, and he has no agent or attorney, by affixing a copy thereof conspicuously on such property, between the hours of nine o'clock in the forenoon and four o'clock in the afternoon. Notice of lien on account of public improvements. At any time before the con- struction of a public improvement is com- pleted and accepted by the municipal corpor- ation, and within thirty days after such com- pletion and acceptance, a person performing work for or furnishing materials to a con- tractor, his sub-contractor, assignee or legal representative, may file a notice of lien with the head of the department or bureau having charge of such construction and with the financial officer of the municipal corporation, or other officer or person charged with the cus- tody and disbursements of the corporate funds applicable to the contract under which the claim is made. To be valid the notice shall contain certain required information. Priority of liens. A lien for materials furnished or labor performed in the improve- ment of real property shall have priority over a conveyance, judgment or other claim against such property not recorded, docketed or filed at the time of filing the notice of such lien ; over advances made upon any mortgage or other incumbrance thereon after such filing ; and over the claim of a creditor who has not furnished materials or performed labor upon such property, if such property has been as- signed by the owner by a general assignment for the benefit of creditors, within thirty days before the filing of such notice. Such liens shall also have priority over other advances under certain conditions. Persons standing in equal degrees as co-laborers or materialmen shall have priority according to the date of filing their respective liens; but in all cases laborers for daily or weekly wages shall have preference over all other claimants under this article, without reference to the time when such laborers shall have filed their notices of liens. Assignment of lien. A lien properly filed may be assigned by a written instrument signed and acknowledged by the lienor, at any time before the discharge thereof. To be valid the filing of the lien must conform to certain re- quirements. Assignments of contracts and orders to be filed. No assignment of a contract for the performance of labor or the furnishing of materials for the improvement of real property or of the money or any part thereof due or to become due therefor, nor an order drawn by a contractor or sub-contractor upon the owner of such real property for the payment of such money, shall be valid until the contract, or a statement containing the substance thereof and such assignment or a copy of each or a copy of such order, be filed in the office of the county clerk of the county wherein the real property improved or to be improved is situ- ated, and such contract, assignment or order shall have effect and be enforceable from the time of such filing. Duration of lien. No lien specified in this article shall be a lien for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, and a notice of the pen- dency of such action, whether in a court of record or in a court not of record, is filed with the county clerk of the county in which the notice of lien is filed, containing the names of the parties to the action, the object of the ac- tion, a brief description of the real property affected thereby, and the time of filing the notice of lien ; or unless an order be granted within one year from the filing of such notice by a court of record, continuing such lien, and such lien shall be redocketed as of the date of granting such order and a statement made that such lien is continued by virtue of such order. For the lien to continue valid certain subsequent requirements must be complied with. Duration of lien under contract for a public improvement. If the lien is for labor done or materials furnished for a public improvement, it shall not continue for a longer period than three months from the time of filing the notice of such lien, unless an action is commenced to foreclose such lien within that time, and a notice of the pendency of such action is filed with the financial officer of the municipal corporation, with whom the notice of lien was filed. Discharge of lien generally. A lien other than a lien for labor performed or ma- terials furnished for a public improvement specified in this article may be discharged as follows : 1. By the certificate of the lienor, duly ac- knowledged or proved and filed in the office where the notice of lien is filed, stating that the lien is satisfied and may be discharged. 2. By failure to begin an action to foreclose such lien or to secure an order continuing it, 292 CONVEYANCES. within one year from the time of filing the notice of lien. 3. By order of the court vacating or can- celling such lien of record, for neglect of the lienor to prosecute the same, granted pursuant to the code of civil procedure. 4. Either before or after the beginning of an action by the owner executing an undertaking with two or more sufficient sureties, who shall be freeholders, to the clerk of the county where the premises are situated. The under- taking shall be in accordauce with certain re- quirements. Discharge of lien by payment of money into court. A lien specified in this article, other than a lien for performing labor or fur- nishing materials for a public improvement, may be discharged, at any time before an action is commenced to foreclose such lien, by deposit- ing with the county clerk, in whose office the notice of lien is filed, a sum of money equal to the amount claimed in such notice, with in- terest to the time of such deposit. After such action is commenced the lien may be dis- charged by a payment into court of such sum of money, as, in the judgment of the court or a judge or justice thereof, after at least five days' notice to all the parties to the action, will be sufficient to pay any judgment which may be recovered in such action. Upon any such payment, the county clerk shall forth- with enter upon the lien docket and against the lien for the discharge of which such moneys were paid, the words " discharged by payment." This deposit money shall be re- funded after the lien has been discharged pur- suant to law. Discharge of lien for public improve- ment. A lien against the amount due or to become due a contractor from a municipal corporation for the construction of a public improvement may be discharged as follows : 1. By filing a certificate of the lienor or his successor in interest, duly acknowledged and proved, stating that the lien is discharged. 2. By lapse of time, when three months have elapsed since filing the notice of lien, and no action has been commenced to en- force the lien. 3. By satisfaction of a judgment rendered in an action to enforce the lien. 4. By the contractor depositing with the financial officer of the municipal corporation, or the officer or person with whom the notice of lien is filed, such a sum of money as is di- rected by a justice of the supreme court, which shall not be less than the amount claimed by the lienor, with interest thereon for the term of one year from the time of making such deposit, and such additional amount as the justice deems sufficient to cover all costs and expenses. The amount so de- posited shall remain with such financial officer or other officer or person until the lien is dis- charged as prescribed in subdivisions one, two or three of this section. Building loan contract. A contract for the sale of land with a building loan and any modification thereof must be in writing, and within ten days after its execution be filed in the office of the clerk of the county in which any part of the land is situated. If not so filed, the interest of each party to such con- tract in the real property affected thereby is subject to the lien and claim of a person who shall thereafter file a notice of lien under this chapter. A modification of such contract shall not affect or impair the right or interest of a person, who, previous to the filing of such modification, had furnished or contracted to furnish materials, or had performed or con- tracted to perform labor for the improvement of the real property, but such right or interest shall be determined by the original contract. Construction of article. This article is to be construed liberally to secure the bene- ficial interests and purposes thereof. A sub- stantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same. Enforcement of mechanics' liens. The mechanics' liens specified in this article may be enforced against the property specified in the notice of lien and which is subject thereto and against any person liable for the debt upon which the lien is founded. The code of civil procedure regulates and provides for such enforcement. Liens on monuments, gravestones and cemetery structures. A person furnishing or placing in a cemetery or burial ground a monument, gravestone, inclosure or other structure, has a lien thereon for the agreed price thereof or the part remaining unpaid, with interest from the time the amount was due, upon filing with the superintendent or person in charge of such cemetery or burial ground a notice of lien as provided by law. Lien for labor performed in quarrying, dressing and cutting stone. A person em- ployed in a quarry, yard or dock at excavat- ing, quarrying, dressing or cutting sandstone, granite, bluestone, or marble, may have a lien upon such sandstone, granite, bluestone or marble, for the amount due for the labor ex- pended thereon, upon filing a notice of lien in the office where a chattel mortgage upon such sandstone, granite, bluestone or marble is required to be filed, as provided in this chapter. Such notice must be filed within thirty days after the completion of such labor, and must state amount due, and name and residence of lienor, and of person for whom labor was performed. Duration and effect of lien. Such lien shall terminate unless an action is brought to enforce the same within three months after the date of filing such notice, as provided in the code of civil procedure for the-enforcement of a lien upon a chattel. If the labor on such sandstone, granite, bluestone or marble is per* CONVEYANCES. 2 93 formed for a contractor under a contract with the owner of such quarry, yard or dock, the owner shall not be liable to pay by reason of all the liens filed against such quarry, yard or dock a greater sum than the amount unpaid upon such contract at the time of filing such notices, or in case there is no contract, then the aggregate amount unpaid of the value of labor and services performed, pursuant to the preceding section. The lien created by this article shall not attach to any material which shall have become a part of any building or structure, or ceased to be the property of the person for whom such labor was performed. Discharge of lien. Such lien may be dis- charged by a payment of the amount due thereon, by a failure to bring an action to en- force the same within the time prescribed in the preceding section, by the written consent of the lienor, duly acknowledged and filed with the proper officer, to the effect that such lien may be discharged, and by the owner of such sandstone, granite, bluesione or marble filing with such officer an undertaking in an amount equal to twice the sum specified in the notice of lien, executed by one or more sureties, who shall justify in such amount and approved by the officer with whom the notice of lien is filed, conditioned for the pay- ment of the sum due such lienor by reason of such lien, and the costs and expenses of enforcing same. Artisans' lien on personal property. A person who makes, alters, repairs or in any way enhances the value of an article of per- sonal property, at the request or with the con- sent of the owner, has a lien on such article, while lawfully in possession thereof, for his reasonable charges for the work done and ma- terials furnished, and may retain possession thereof until such charges are paid. Liens of hotel, inn, boarding and lodg- ing house keepers. A keeper of a hotel, inn, boarding house or lodging house, except an emigrant lodging house, has a lien upon, while in possession, and may detain the bag- gage and other property brought upon their premises by a guest, boarder or lodger, for the proper charges due from him, on account of his accommodation, board and lodging, and such extras as are furnished at his request. If the keeper of such hotel, inn, boarding or lodging house knew that the property so brought upon his premises was not, when brought, legally in possession of such guest, boarder or lodger, a lien thereon does not exist. Factors' lien on merchandise. A per- son, in whose name any merchandise shall be shipped, is deemed the true owner thereof so far as to entitle the consignee of such mer- chandise to a lien thereon. I. For any money advanced or negotiable security given by such consignee, to or for the use of the person in whose name such ship- ment is made ; 2. For any money or negotiable security re- ceived by the person in whose name such ship- ment is made, to or for the use of such con- signee. Such lien does not exist where the consig- nee has notice, by the bill of lading or other, wise, when or before money is advanced or security is given by him, or when or before such money or security is received by the per- son in whose name the shipment is made, that such person is not the actual and bona fide owner thereof. Warehouse liens. A warehouse com- pany, warehouseman or other person lawfully engaged in the business of storing goods, wares and merchandise for hire has a lien on goods deposited and stored with him for his storage charges, and for moneys advanced by him for cartage, labor, weighing and coopering in relation to such goods, or other goods be- longing to the same owner ; and he may de- tain such goods until his lien is paid. Lien of bailee of animals. A person keeping a livery stable, or boarding stable, for animals, or pasturing or boarding one or more animals, has a lien dependent upon possession upon each animal kept, pastured or boarded by him under an agreement with the owner thereof, whether such owner be a mortgagor remaining in possession or otherwise, for the sum due him for the care, keeping, boarding or pasture of the animal under the agreement, and may detain the animal accordingly until such sum is paid. Sale of personal property to satisfy a lien. A lien against personal property, other than a mortgage on chattels, if in the legal possession of the lienor, may be satisfied by the public sale of such property according to the provisions of law. NORTH CAROLINA. Conveyances, etc., of any estate or interest in real property, must be in writing, etc. See forms referred to below. Acknowledgment. See that title, ante. Dower. Separate examination of wife is necessary to her dower. Married woman must be examined separately from her husband in all deeds executed with him. She must acknowledge her signature before she is privily exam- ined. She cannot convey her separate property with- out her husband joins in the conveyance or gives his written consent thereto. Recording is necessary in order to render the con- veyance valid against bona fide subsequent purchasers, mortgagees, etc. Seals. A scroll is sufficient. See SOUTH CAROLINA, and GENERAL FORMS, post. OHIO. Conveyances of estate or any interest in real estate must be in writing, etc. See forms below. Acknowledgment. See that title, ante. Dower is barred by wife joining in the deed with her husband. Married 'Women need not be examined separate and apart from their husbands. Husbands need not join in conveyance of wife's property, and vice versa, unless relinquishment of dower is sought. Recording must be in the office of the recorder of deeds of the county in which the lands conveyed are situated. The filing takes effect in the order of pre- sentment to the recorder for record. Such instruments, 294 CONVEYANCES. and all other instruments in writing, conveying or incumbering lands, tenements or hereditaments, until so filed for record, nre deemed fraudulent as to a subse- quent bona fide purchaser, having, at the time of pur- chase, no knowledge of the existence of former instru- ment. Seals. All private seals are abolished. The act does not, however, affect corporate seals. Witnesses. The grantor's signature and acknowl- edgment must be in presence of two witnesses who must sign their names. Warranty Deed Witli Dower. KNOW ALL MEN BY THESE PRESENTS: That , in consideration of to paid by ,the receipt whereof is hereby acknowledged, do hereby BARGAIN, SELL and CONVEY to the said , heirs and assigns forever, the following real estate, viz.: , together with the privileges and appurtenances to the same belonging. TO HAVE AND TO HOLD the same to the said , heirs and assigns forever hereby covenanting that the title so conveyed is clear, free and unincumbered, and that will warrant and defend the same against all claims whatsoever. And , wi of the said , in considera- tion of one dollar to paid, do remise, release and forever quit-claim unto the said grantee, all right by way of dower or otherwise, in and to the above granted premises. IN WITNESS WHEREOF, The said , hereunto set hand this day of , in the year Eighteen Hundred and Ninety . Signed and delivered in the presence of (2 witnesses.) For form of ACKNOWLEDGMENT, see that title. The warranty deed "without dower is the same as the above, omitting the clause releasing dower. Special Warranty Deed With Release of Dower. KNOW ALL MEN BY THESE PRESENTS: That in consideration of to paid by the receipt whereof is hereby acknowl- edged, do hereby GRANT, BARGAIN, SELI, and CONVEY to the said , heirs and as- signs forever, the following real estate, viz.: - and all the ESTATE, TITLE AND INTER- EST of the said , either in law or in equity, of, in and to the said premises; TOGETHER with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof; TO HAVE AND TO HOLD the same to the only proper use of the t&id , heirs and assigns forever. And the said for and heirs, do HEREBY COVENANT with , heirs and assigns, thatthesaid premises are free and clear from all incumbrances by, from, through or un- der the said grantor , and that will forever WARRANT and DEFEND the same, with the appurtenances, unto the said , heirs and assigns, against the lawful claims of all persons, claiming by, from, through or under the grant- or herein. IN WITNESS WHEREOF, The said hereby release right and expectancy of DOWER in the said premises, ha hereunto set hand this day of , in the yeat of our Lord One Thousand Eight Hundred and Ninety . Signed and acknowledged in presence of (3 witnesses. ) For form of ACKNOWLEDGMENT, see that till* Warranty Deed by Attorney. KNOW ALL MEN BY THESE PRESENTS: That , by , attorney in fact, in con- sideration of to paid by , the receipt whereof is hereby acknowledged, does hereby BARGAIN, SELL and CONVEY to the said , heirs and assigns, the following real estate, viz.: , together with the privileges and appurtenances to the same belonging. TO HAVE AND TO HOLD the same to the said , heirs and assigns forever, hereby covenanting that the title so conveyed is clear, free and unincumbered, and that will WARRANT and DEFEND the same against all other claims whatsoever. IN WITNESS WHEREOF, the said , by , attorney in fact, hereunto set hand vhis day of , in the year of our Lord One Thousand Eight Hundred and Ninety By attorney in fact. Signed and acknowledged in presence of (2 witnesses.) Quit-Claim Deed. KNOW ALL MEN BY THESE PRESENTS: That , of , the grantor , in consideration of , to paid by , of , the grantee, the receipt whereof is hereby acknowledged, do hereby REMISE, RELEASE, and forever QUIT-CLAIM unto said grantee , and to heirs and assigns forever, all the following de- scribed real property, situate in the county of , and State of Ohio, to wit: , together with all the privileges and appurtenances there- unto belonging. TO HAVE AND TO HOLD the same unto the said grantee , and to heirs and assigns forever. IN WITNESS WHEREOF, the said ha hereunto set hand , this day of , in tke year Eighteen Hundred and Ninety -. Signed and acknowledged in presence of (2 witnesses.) Trust Deed with Warranty. With or Without Dower. This conveyance, made this day of , between A. B.,of county, in the State of , of the first part, and E. F., of county, in the State of , of the second part, and C. D., of county, in the State of , of the third, part, witnesseth : That the said party of the first part, in consid- eration of the sum of dollars, the receipt of which is hereby acknowledged, does by these presents grant, bargain, sell, and convey unto said party of the second part, his successors and assigns, all the following described real estate (with dower, or without dower, as the case may te), situated in the countv of . and State of to wit : (describe it). To have and to hold the same, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining, forever, in fee ; in trust, nevertheless, and to and for the uses, interests, and purposes hereinafter limited, described and declared that is to say, in trust, to (state the purposes, etc.). And said party of the first part does hereby covenant, promise, and agree that -he within described premises are free, clear, and dis- charged of and from all incumbrances of what- ever nature or kind soever ; and that he will war- rant and forever defend the same unto said par- ties of the second and third parts, their succes- sors and assigns, against said party of the first part, his heirs, and all and every person or per- sons whomsoever lawfully claiming or to claim the same. And the said party of the second part cove- nants faithfully to perform and fulfil the trusts herein created. OREGON. Conveyances, etc., of real estate, or any interest there- in, must be in writing, etc. See forms referred to below. Acknowledgment. See that title, ante. Married women need not be separately examined. Recording must be within five days after the exe- cution of the conveyance to be valid against subsequent purchasers, etc., in good faith for value and without notice, whose conveyance shall be first duly recorded.. Seals. A scroll is sufficient. CONVEYANCES. 295 PEIflfSYLVAJTIA. Conveyances, etc., are by the forms of the common law. Acknowledgment. See th;it ti.l -, ante. Dower is relinquished and barred by the wife joining in the conveyance. Married women must be examined separately. Recording in the office of the recorder of deeds in the county where the lands lie, and within ninety days after execution, is necessary, except when executed out of the State, when recording must be done within six months. Seals. A scroll is sufficient. Witnesses are not necessary, though one or more is usual. Conveyance Warranty Deed. This conveyance {or indenture), made the 4ay of , in the year of our Lord , between A. B., etc., of the o'ne part, and C. D., etc., of the other part, witnesseth : That the said party of the first part, in considera- tion of the sum of dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by these presents does grant, bar- gain, sell, alien, enfeoff, release, and confirm to the said party of the second part, his heirs and assigns (here describe the property, and add as fol- Imus), together with all and singular the minerals, woods, underwoods, timber (and whatever, else*, waters, water-courses, ways, houses, fences, im- provements, rights, liberties, members, heredita- ments, and appurtenances thereunto belonging or in any way appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part and parcel then .f ; and also all the estate, right, title, interest, benefit, property, claim, and demand whatsoever, in law or equity, of the said party of the first part, of, in and to the same, and every part and parcel thereof. To have and to hold the said to the said party of the second part, his heirs and assigns, to the only proper use and behoof of the said party of the second part, his heirs and assigns, for- ever. And the said A. B., for himself, his heirs, exec- utors, and administrators, does covenant, prom- ise, and agree to and with the said party of the second part, his heirs and assigns, that he, the said A. B., and his heirs, all and singular the he- reditaments and premises hereby granted or mentioned and intended so to be, with the appur- tenances, unto the said party of the second part, his heirs and assigns, against him, the said A. B., and his heirs, and against all and every person or persons whomsoever lawfully claiming or to claim the same, shall and will warrant and forever defend. In witness whereof, etc. Conveyance Warranty Deed. This conveyance (or indenture), made the day of , in the year of our Lord , between A. B., of , of the one part, and C. D., of , of the other part, witnesseth : That the said A. B., for and in consideration of the sum of dollars, lawful money of the Uni- ted States of America, unto him well and truly paid by the said C. D., at and before the sealing and delivery of these presents, the receipt where- of is hereby acknowledged, has granted, bar- gained, sold, aliened, enfeoffed, released, and con- firmed, and by these presents does grant, bargain, sell, alien, enfeoff, release, and confirm unto the said C. D.,his heirs and assigns (describe property, and add as follows), together with all and singular buildings, improvements, etc., ways, waters, water-courses, rights, liberties, privileges, hered- itaments, and appurtenances whatsover there- unto belonging or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof; and all the estate, right, title, in- terest, property, claim, and demand whatsoe ve- of him, the said A. B., in law, equity, or other- wise howsoever, of, in, and to the same and every part thereof. To have and to hold the said real estate, b-v.i: fngs, improvements, hereditaments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the said C. D., his heirs and assigns, to and for the only proper use and behoof of the said C. D., his heirs and assigns, forever. And the said A. B., his heirs, executors, and administrators, does by these presents covenant, grant, and agree to and with the said C. D., his heirs and assigns, that he, the said A. B., and his heirs, all and singular the hereditaments and premises herein above described and granted, or mentioned and intended so to be, with the ap- purtenances, unto the said C. D., his heirs and assigns, against him, the said A. B., and his heirs, and against all and every other person or persons whomsoever lawfully claiming or t claim the same or any part thereof (here insert clause for special "warranty, when desired), shall and will warrant and forever defend. In witness whereof, Conveyance <3eneral (and Special) Warranty Deed. This conveyance (or indenture), made the day of , in the year of our Lord , between A. B., of county, in the State of , of the first part, and C. D., of county, in the State of , of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, well and truly paid by the said party of the second part to the said party of the first part, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, enfeoffed, re. leased, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, enfeoff,, release, convey and confirm unto the said party of the second part, his heirs and assigns, all (de- scription of the property), together with all and singular the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances to the same belonging or in anywise appertaining, and the reversion and re- versions, remainder and remainders, rents, is- sues and profits thereof, and of every part and parcel thereof: and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, both in law and equity, of the said party of the first part, of, in, and to the said premises, with the appurtenances. To have and to hold the said premises, with alt and singular the appurtenances, unto the said party of the second part, his heirs and assigns, to the only proper use, benefit and behoof of the said party of the second part, his heirs and assigns, forever. And the said A. B., for himself, his heirs, exec- utors, and administrators does by these presenls covenant, grant and agree to and with the said party of the second part, his heirs and assigns, that he, the said A. B., his heirs, all and singulrf the hereditaments and premises herein above described and granted, or mentioned and intended to be so, with the appurtenances, unto the said party of the second part, his heirs and assigns, against him, the said A. B., his heirs, and against all and every other person or persons whomso- ever lawfully claiming or to claim the same ot any part thereof (" by, from, or under them, or anj of them." 'ITtese words con-vert this general war ranty deed into a. special warranty deed), shall and will warrant and forever defend. In witness whereof, etc. Conveyance Sheriff's Deed. On Fieri Facias. S. F. , esquire, high sheriff of county, in the commonwealth of Pennsylvania, to all to whom these presents shall come, greeting: Whereas, by virtue of a writ of fieri facias, bearing test the day of , A. D. , I was commanded that of the goods and chattels, lands and tenements of A. B., late of county, in my bailiwick, I should cause to be levied and made as well a certain debt pf dpllars, law- CONVEYANCES. ful money f the- United States, with interest from the day of , A. D. , which C. D. , late in our court, before our judges at , recovered against him, as also dollars like money, which to the said plaintiff in our said court were in like manner adjudged for his dam- ages which he sustained by occasion of the de- tention of that debt whereof the said defendant was convict as appears of record. And that I should have that money before our judges at , at our court there to be held for said county, on the Monday of next, to render to the said plaintiff for his debt and damages. And whereas, the defendant having no personal property out of which to make the above moneys, in pursuance whereof and by virtue of said writ, I levied on {here describe the property). And whereas, the defendant having, by writing filed, waived his right of inquisition, and agreed that the above described property should be sold on the said fieri facias; and thereupon, in pursu- ance of the said writ, I, the said sheriff, having given due and legal notice of the time and place of sale by advertisements in the public news- papers, and by handbills set up on the premises, and in the most public places in my bailiwick, did, on , the day of , A. D. , expose the said premises above described, with the ap- purtenances, to sale by public vendue or outcry, and sold the same to E. F. , of , for dollars, lie being the highest and best bidder, and that tte highest and best price bidden for the same. Now know ye, that I, the said S. F., esquire, high sheriff aforesaid, for and in consideration of the aforesaid sum of dollars, to me in hand paid by the said E. F., at and before the sealing add delivery hereof, the receipt whereof I do hereby acknowledge, have granted, bargained, and sold, and by these presents, according to the directions of the said writ, and by force and vir- tje thereof, and the constitution and laws of this commonwealth in such case made and provided, do grant, bargain, and sell unto the said E. F., his heirs and assigns, all that land, messuage, improvements, etc., and being as hereinbefore particularly described ; together with all and singular the improvements, their rights, liberties, privileges, hereditaments, and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions, remainders, rents, issues, anJ profits thereof: To have and to hold all and singular the heredi- taments and premises hereby granted, with the appurtenances, unto the said E. F. , his heirs and assigns, to and for their only proper use and be- hoof forever, according to the form, force, and effect of the laws and usages of this common- wealth in such case made and provided. In witness whereof, I, the said sheriff, have hereunto set my hand, and affixed my seal, the day of , in the year of our Lord . S. F., Sheriff of county. [SEAL.] Sealed and delivered I in the presence of us, ] Conveyance Sheriffs Deed. On Levari Facias. S. F., esquire, high sheriff of county, in the commonwealth of Pennsylvania, to all to whom these presents shall come, greeting: Whereas, by a certain writ of levari facias, issued out of the court, tested at , the day of , in the year of our Lord , I, the said sheriff, was commanded that without any other writ, of the lands and tenements of A. B., etc. (here follows the recitals and description, and adding the following): Together with the hereditaments and appurte- nances in my bailiwick, I should cause to be levied as well a certain debt of dollars, lawful money of Pennsylvania, with the lawful interest thereof, from the day of , as also dollars like money for costs, which said debt, with interest and costs aforesaid, lately in the court, before the judges at , to wit, on the day of , by the consideration of the same court recovered to be levied of the same premises, with the appurtenances, by the default cf the said A. B., in not paying the said sum of , with the lawful interest thereof, at the day and time when the same ought to have been paid, according to the form and effect of an act of Assembly of the State of Pennsylvania, in such case made and provided, and that I should have those moneys before the judges at , at the court, there to be held the of next, to render to the said C. D. for the debt, interest, and damages aforesaid, whereof the aforesaid A. B. is convict as appears of record, etc., and that I should have then there that writ. And thereupon, in pursuance of the said writ, I, the said sheriff, having given due and legal notice of the time and place of sale by advertise- ments in the public newspapers, and by handbills set up on the premises, and in the most public places in my bailiwick, did, on , the da}, of , expose the said premises above described, with the appurtenances, to sale by public vendue or outcry, and sell the same to E. F., for the sum of dollars, he being the highest and best bid- der, and that the highest and best price bidden for the same. Now know ye, that I, the said S. F., esquire, high sheriff aforesaid, for and in consideration of the aforesaid sum of , to me in hand paid by the said E. F., at and before the sealing and delivery hereof, the receipt whereof I do hereby acknowledge, have granted, bargained and sold, and by these presents, according to the direc- tions of the said writ, and by force and virtue thereof, and the constitution and laws of this commonwealth in such case made and provided, dp grant, bargain, and sell unto the said C. D., his heirs and assigns, all that the said messuage, etc., and being as hereinbefore particularly described ; together with all and singular the buildings, improvements, rights, liberties, priv- ileges, hereditaments and appurtenances what- soever thereunto belonging, or inanywise apper- taining, and the reversions, remainders, rents, issues, and profits thereof: To have and to hold all and singular the heredi- taments and premises hereby granted, with the appurtenances, unto the said E. F., and assigns, to and for , their only proper use and behoof forever, etc., according to the form, force, and effect of the laws and usages of this common- wealth in such case made and provided. In witness whereof, I, the said sheriff, have hereunto set my hand, and affixed my seal, the day of , in the year of our Lord . S. F., sheriff' of county. [SEAL.] Sealed and delivered I in the presence of us,/ Conveyance Sheriff's Deed. On Venditioni Exponas. S. F., esquire, high sheriff of county, in the Commonwealth of Pennsylvania, to all to whom these presents shall come, greeting : Whereas (here insert recitals and description of property, adding as follows): which remained in my hands unsold for want of buyers, and there- fore I could not have the money in the said writ mentioned at the day and place in the said writ specified as therein I was commanded, and that the residue of the execution of said writ ap- peared in a certain schedule or inquisition there- unto annexed, by which schedule and inquisition it was found that the rents, issues and profits of the above described property in my said return upon the said writ thereunto annexed mentioned, were not of a clear yearly value beyond all re- prizes, sufficient within the space of seven years to satisfy the debt and damages in the said writ mentioned. And whereas, by a certain writ of vendi- tioni exponas, to me, the said sheriff, directed. tested at , the day of , I was com- manded that the premises above described, with the appurtenances, I should expose to sale, and that I should have that money before the day of , at , at , there to be held the of next, to render to the said debt and dam- ages aforesaid. In pursuance Whereof, I, the said sheriff, having given due and legal notice of the time and place of sale by advertisements in the public newspapers, and by handbills set up CONVEYANCES. 297 on the premises, and in the most public places in my bailiwick, did, on , the day of , expose the said premises above described, with the appurtenances, to sale by public vendue or outcry, and sold the same to E. F. , of , for the sum of dollars, he being the highest and best bidder, and that the highest and best price bid- den for the same. Now know ye, that I, the said S. F., es- quire, high sheriff aforesaid, for and in consid- eration of the aforesaid sum of dollars, to me in hand paid by the said E. F., at and be- fore the sealing and delivery hereof, the receipt whereof I do hereby acknowledge, have granted, bargained and sold, and by these presents, ac- cording to the directions of the said writ, and by force and virtue thereof, and the constitution and laws of this commonwealth in such case made and provided, do grant, bargain, and sell unto the said E. F., his heirs and assigns, all that the said messuage, etc., and being as hereinbefore par- ticularly described ; together with all and sin- gular the buildings, improvements, rights, lib- erties, privileges, hereditaments, and appurte- nances whatsoever thereunto belonging, or in anywise appertaining, and the reversions, re- mainders, rents, issues, and profits thereof: To have and to hold all and singular the heredi- taments and premises hereby granted, with the appurtenances, unto the said E. F., and assigns, to and for , their only proper use and behoof forever, according to the form, force, and effect of the laws and usages of this common- wealth in such case made and provided. In witness whereof, I, the said sheriff, have hereunto set my hand, and affixed my seal, the day of , in the year of our Lord . S. F., [SEAL.] Sheriff of county. Sealed and delivered ) in the presence of us, j RHODE ISI,AXT>. Conveyances of any estate of inheritance or freehold for a term exceeding one year must be by deed, in writing, etc. See forms referred to below. Acknowledgment. See that title, ante. Corporations have no prescribed form. The presi- dent or treasurer affixes the corporate seal, signs his name, and adds his official title, and so acknowledges its execution. Dower is relinquished and barred by the wife joining in the conveyance. Married women must be examined separately. They must be joined in conveyance of their lands by their husbands, and vire versa. Recording must be in the office of the clerk of the town or city where the lands are situated. If the estate is in the city of Providence the conveyance must be recorded in the office of the recorder of deeds in said city. Seals must be of some adhesive substance, as wax, wafers, adhesive paper, etc. Witnesses are not necessary, one is customary. See GENERAL FORMS, post. SOUTH CAROLINA. Conveyances of real estate or any interest therein must be in writing, etc. Acknowledgment. See that title, ante. Dower. If grantor is married, the wife's dower must be renounced on the deed or paper attached, in the form below. Married women may hold property separate from their husbands, and convey or alien the same as if unmarried. Recording. Deeds must be recorded in the office of the registrar of mesne conveyances within forty days after execution ; if recorded thereafter they take pre- cedence only of subsequent conveyances not recorded. Seals. A scroll is sufficient. Signature of the grantor must be in the presence of two witnesses, who must subscribe their names in attes- > tion thereof. See GENERAL FORMS, post. Conveyance Warranty Deed. Stnfitlory form.* State of South Carolina : Know all men by these presents: jt-5 P. L. 256, jj i ; 9 Rich, 374 ; u Jd, 80. -i Swan. That I, A. B., of ,in ths State aforesaid, in consideration of , to me paid by C. D., in the State aforesaid, have granted, bargained, sold, and released, and by these presents do grant, bar- gain, sell, and release unto said C. D. all that (here describe the land), together with all and sin- gular the rights, members, hereditaments, and appurtenances to the said premises belonging or in anywise incident or appurtenant. To have and to hold all and singular the prem- ises before mentioned unto the said C. D., his heirs and assigns, forever. And I do hereby bind myself, my heirs, execu- tors, and administrators, to warrant and forever defend all and singular the said premises untc the said C. D., his heirs and assigns, against my- self and my heirs, and against every person whomsoever, lawfully claiming or to claim tho same, or any part thereof. Witness my hand and seal, this day of , in the year of our Lord , in the year jf the independence of the United States of America. A. B. [SEAL.] Signed, sealed, and delivered in presence of W. T., N. S. Proof as above. See acknowledgment. TEXXEKSEE. Conreyances of real estate or any interest therein must be in writing, etc. See forms referred to below. Acknowledgment. See that title, ante. Dower is relinquished and barred by the wife's join- ing in the conveyance. Married women must be separately examined. They must be joined by their husbands in the convey- ance of their real estate, and join the husband in the Conveyance of his or of their joint realty. Recording must be in the office of the register of deeds cl the county wherein the land is situate in order to affect subsequent bona fide purchasers, etc., without notice. Seals. A scroll with the word seal written after the signature is sufficient.* See GENERAL FORMS, post. TEXAS. Conveyances of any estate or interest in real prop- rty need no technical words to convey a fee simple: ind where the instrument purports to pass a greater interest than the grantor possesses it alienates only such interest as he possesses.* Acknowledgment. See that title, ante. Married women must be examined separately. Recording is necessary to affect subsequent bona fide purchasers and creditors without notice or reason- able information. Seals are not necessary, except to instruments exe- cuted by corporations. Witnesses to grantor's signature not necessary, when instrument is acknowledged before authorized officer, but when not, then two witnesses are necessary, who must sign at request of grantor. See GENERAL FORMS, post. Use SOUTH CAROLINA FORM. C UTAH. Conveyance includes every instrument in writing by which real estate or any interest therein is created, aliened, mortgaged or assigned, except wills, and leases not exceeding a term of one year. Acknowledgment. See that title, ante. Dower has been re-established. Married women convey in the same manner as un- married women. Recording in the office of the recorder of deeds- of the county where the lands are situated is necessary. Seals. No seals are necessary. Witnesses. One witness is sufficient. See CALIFORNIA FORM, ante, and GENERAL FORMS, post. VERMONT. Conveyances of lands or any interest therein must be in writing, etc. See forms referred to below. Acknowledgment. See that title, ante. Married women need not be examined separately. Recording in the office of the town or city clerk oi the town or city where the land is located is necessary to convey title as against subsequent bonajidt purchas' ers or attaching creditors without notice. 333. t-Pasch. Pig. Art- 5087. C-Hartl. Dig. 129. Art. 170. CONVEYANCES. Seals mint he of wax, wafers, or other adhesive sub- stance. Signature of the grantor must be in the presence of two witnesses, who must attest such signature. See GENERAL FORMS, post. VIRGINIA. Conreyancos of real estate or any interest therein wiust be in writing, etc. Acknowledgment. See that title, ante. Dower is relinquished and barred by the wife joining her husband in the conveyance. Married women. Common law prevails with slight modification. Separate examination is not necessary. Recording within sixty days of a deed of bargain and sale is necessary, and all conveyances from the time they are duly admitted to record are valid against sub- sequent bona. fide purchasers and creditors without notice. Seals. A scroll is sufficient. Conveyance Statutory Deed.* The following firm will pass all the estate, right, title, and interest of the grantor, both in law and in equity." Unless exception is made a conveyance of land includes and passes all buildings, privileges, and appurtenances of every kind.' This conveyance, made this day of , by A. B., of , etc., to C. D., of , etc.,wit- nesseth : That in consideration of (state what), the said A. B. doth with the said C. D. bargain, sell, and grant all, etc. (here describe the property, and add whatever covenants, conditions, restrictions, limita- tions, etc., agreed upon), Witness the following signature and seal.s A. B. [L. s.] Conveyance Warranty Deed. With Full Covenants > This conveyance, made this day of , by A. B., of , etc., to C. D., of , etc., wit- nesseth : That in consideration of (slate what), the said A. B. doth with the said C. D. bargain, sell, and grant, all, etc. (here describe the property, and add whatever covenants, conditions, restrictions, limita- tions, etc., agreed upon). And the said A. B. covenants, That he has the right to convey said land to the grantee ; that the same is free from all incumbrances ; that the grantee shall have quiet possession of said land ; that he will execute such further assurances of aid lands as shall be requisite ; and that he will warrant generally (or specially) the property here- by conveyed. Witness the following signature and seal, etc. (as above). Conveyance Ufe Estate Clause. To have, to hold, and enjoy the same, and all and singular the appurtenances and every part thereof, during the natural life of said C. D.' Conveyance Quit-Claim I>eed. This conveyance, made this day of , by A. B., of , to C. D., of , witnesseth : That in consideration of dollars, the said A. B. doth release to the said C. D. all his claims upon the following described lands, to wit : (de- scribing them). Witness the following signature and seal, etc. (as above). Conveyance Trust DeedJ This conveyance, made this day of , by A. B., of one part, to C. D., of the other part, Iwitnesseth : That the said A. B. doth grant unto said C. D. the following property: (here follmvs the descrip- tion). In trust, to secure < here describe the debts to I'f secured, or the securities to be indemnified, and *j.'kate?'er covenants, provisions, etc., agreed upon). Witness the following signature and seal, etc. (. ui BWj * lu AUU u_y the said conveyance (deed, or, indenture, [recorded in the office for recording deeds, in , in county, in book , page ), relation (or, reference) being thereto had, appears. For Title by Descent, see preceding form and Title '^y Administrator, above. For Title by Devisee, see Title by Executor, above. Recital Title by Partition. And whereas, by deed (or instrument) of partition between the said A. B., of the one part, and the said C. D., of the other part, bearing date the day of , partition of the said premises, etc., with the appurtenances, was made between said parties, wherein and whereby the tract or parcel thereof, bounded and limited as follows, to wit: beginning, etc.; containing acres and allowance aforesaid, was released and confirmed to the said C. D., his heirs and assigns, forever. To have and to hold to him, the said C. D., his heirs and assigns (in severally), forever, as in and by said deed (or, instrument) of partition (recorded in the office for the recording of deeds, in , in county, in deed book , page ), relation (or, reference) being thereto had, appears. Title by Patent, see "Title by Deed, Descent, and Patent, above. Title by Sheriff', see New York, Pennsylvania, and General Forms. CONVEYANCES. 3. DKSCPIPTIONS OP PROPERTY GRANTED, WITH THE INTENDED EXCEPTIONS. Easement for Drainage Reserved. The following described property, situated in , etc. (describing it, and then adding) : Subject, nevertheless, to the perpetual right of the owner upon the premises upon the north side immediately adjoining the premises hereby con- veyed (constructing a drain, state ivhere, or) using and fully enjoying a drain or sewer passing through said premises hereby conveyed {state wkert). Easement for Party Walls Reserved. After describing the property add : Subject, nevertheless, to the use of the walls upon the north and south sides of said premises by E. F. and G. H., owners of the lots next ad- joining said north and south sides of the prem- ises hereby conveyed, their heirs and assigns, as party walls. Metes and Bounds. All the following described real estate, situated in the city (or town, or village of , in the) county of , and State (or Commonwealth) of , to wit : Lot number seventy-two (72) and eighty- eight 1 88) on Main street (in the city, etc., county and State aforesaid). Another. As above, etc. Town lot numbered four (4), as known and designated by the number four (4) on the recorded plat of 's addition to the town of , in the county and State aforesaid. Another. All that certain tract or parcel of land known as lot number seventy-nine (79), in township num- ber eight (8), in range seven (7), in the county of -, and State of aforesaid, containing acres. Another. "All," etc. (as above). The west half (^) of the east half (%) of the northwest quarter 0/0 of sec- tion twenty-one (21), in township fourteen (14), range fifteen (15), east of the principal me- ridian, containing forty (40) acres, more or less. Another. AH the following described real property, situ- ated in county, , to wit: The undivided one-half (^) of lot number seven (7), in block num- ber sixty-one (61), in the city (or town, or village) of , of (county and State aforesaid). Another. All that certain tract, piece or parcel of land, situate, lying and being in the town of , county of , and State of , known and described as follows, to wit : Beginning at a corner stone at the northeast corner of a certain out lot at the junction of and streets of said town (said corner-stone be- ing from said street and from said street), running thence south twenty-three de- grees (as- 3 ), west sixteen (16) rods, thence north seventy-nine degrees (79), west ten (10) rods, thence north twenty-five degrees and ten min- utes (25 10'), east sixteen (16) rods ten (10) inches, thence east by south to the point of be- ginning, containing acres. Another. All that certain lot, piece or parcel of land (with the buildings erected thereon), lying and being in the ward,cityof .county of ,and State of .bounded and described as follows, to wit : Be- ginning at a point on the west side of Twentieth (2oth) street, seventy (701 feet and five (5) inches north of the north sideof Fourth (4th ) avenue, run- ning thence west through a party wall and parallel with Fourth (4th) avenue one hundred and ten (no) feet, thence north fifty-one (51; feet and six (6) inches, thence east and through another party wall and parallel with said Fourth (4th) avenue one hundred and ten mo) feet, and thence south along the west side of said Twentieth (2oth ) street fifty-one (51 ) feet and six (6) inches to the point or place of beginning. Natural Boundaries, High-ways, etc. Beginning at the west side (or bank) of the river (or creek) at the junction of the run (creek, > ravine, etc.), and running thence north along the west bank of said river rods unto a ledge of rock, thence west to the highway leading from to , thence south rods to said run (creek, or ravine, etc.), thence along the course of said run, etc., unto the place of be- ginning, containing acres, more or less. 4. DOWER. See title ACKNOWLEDGMENT, ante, and DOWER, abore. llabeiuliim in Deeds and Other Con- veyances. The habendum limits and defines what estate th% grantee is to have in the premises conveyed. HABBNDUM IN FEE SIMPLE. To have and to hold the same forever. Another. To have and to hold the same, together with ti.e appurtenances and every part thereof, for- ever. Another. To have and to hold the same, with the appur- tenances, unto the said C. D., his heirs and as. signs, in fee simple, forever. Another. To have and to hold the same, together witb all and singular the tenements, hereditaments and appurtenances thereunto belonging or ir, anywise appertaining unto the said party of the second part, his heirs and assigns, forever. Another. To have and to hold the said messuage or tene- ment and tract of acres of land, heredita* ments and premises hereby granted or mentioned or intended so to be, with the appurtenances and every part thereof, unto the said C. D., his heira and assigns, to the only proper use and behoof of the said C. D., his heirs and assigns, forever. HABENDCM LIFE ESTATE. To have and to hold the same during the nat- ral life (or lives) of . HABENDUM WITH CONDITIONS. See MORTGAGES and TRUST DEEDS, post. To have and to hold, etc. (as in the habemelmm forms above). In trust to (state tvhaf) ; or, In trust, nevertheless, to, etc. ; or, Reserving and retaining, etc. ; or, Saving and excepting, etc. ; or, Subject to (state what); or, Subject, nevertheless, to, etc. ; or, Yielding and paying, etc. Reddeiidiim in Deeds and Oilier Con* veyauees. The reddendutn (or reservation) is that clause in a conveyance or deed by which thegrantor reserves some- thing new to himself out of that which he granted be- fore. It usually follows the habendum, and is usually in these words, "Yielding and paying." In every good reddenclum or reservation these things must concur*, i. It must be in apt words. 2. It must be of some other thing issuing or coming out of the thing granted, and not a part of the thing itself, nor of something is- suing out of another thing. 3. It must be made of a thing on which the grantor may resort to distrain. 4. It must be made to one of the grantors, and not to a stranger to the conveyance or deed.* REDDENDUM OR RESERVATION OP ANNUITY. Yielding and paying unto W. , the wife of said A. B. (and to her heirs and assigns), the yearly rent or annuity of dollars, in instalments, on the days of of each year, for a term of years from the (sealing and) delivery of these presents. REDDENDUM OR RESERVATION OF MINES, ETC. Excepting and reserving unto the said A. B., his heirs and assigns, all mines, beds, seams, or veins of coal, ironstone, and other minerals what- soever already found or which may hereafter be found upon or under the lands hereby conveyed a-SeezBl.Comm. 299: Co. Lilt. 47. Shepp Touchst 83; Cruise Dig. tit. 32, Ch. 24, g i ; Dane Abr. CONVEYANCES. or intended so to be, with full liberty of ingress, egress, and regress at all times for said A. B., his heirs or assigns, and his and their agents, ser- vants, and workmen in and upon said lands, and either with or without horses and other cattle, carts and wagons, and other carriages, for the purpose of searching for, working said mines, and taking and carrying away the said minerals ; and with full liberty for said A. B., his heirs and assigns, to drive, make, sink, and use pits, shafts, drifts, outlets, air courses and water courses, and to erect and set up fire and other engines, ma- chinery and works, and to lay down railroads and other roads in, upon, under, over and above said lands or any of them, for the purpose of more conveniently working said mines and carrying away said minerals ; and also to appropriate and 'use any part of the surface of said lands for de- positing, placing, and piling thereon the minerals, rubbish, waste, or other substances issuing from said mines or minerals, and generally to do all other acts and things necessary, proper, and usual for working said mines and procuring said min- erals (at.corJing to the most approved practice of min- ing in the district wherein they are situated). Provided always. That said A. B., his heirs and assigns, do and shall pay to said C. D., his heirs or assigns, the annual sum of dollars for every acre, and so m proportion for any less quantity than an acre of land, the surface whereof shall be appropriated or used for any of the purposes aforesaid, so long as such appropriation or use shall continue, and until the surface shall be restored as nearly as may be practicable to its original state or condi- tion before such appropriation or use commenced. And provided further. That the working of said mines shall be con- ducted in such a manner as not to endanger any buildings now being on said lands, or which may hereafter be erected on the site of, or within feet from the site of any present buildings, and generally to do as little damage or injury to the surface of the said lands as shall be consistent with and necessary to the proper working of said mines, and procurement and carrying away of said minerals. And provided further: That said A. B., his heirs or assigns, shall pay said C. D., his heirs or assigns, adequate compen- sation for all damage or injury -which he or they, or his or their tenants may sustain by the reason of the working of said mines, or the exercise of any of the liberties and privileges hereby ex- cerjted and reserved ; the amount of such compen- sation and all other matters in difference which may arise between said parties in connection with said excepted mines, minerals, liberties, and privileges to be ascertained by arbitration, etc. See AGENCY, ARBITRATION FORMS, ante. REDDENDUM OR RESERVATION FOR STREETS, ETC. Saving and reserving from and out of the here- by granted premises such streets as are now, or hereafter may be laid out through the premises hereby granted. And whenever any such streets may be laid out over and across the said premises that the same shall be made at the expense of said party of the second part, his heirs or assigns, and be and remain forever public streets as other public streets are or ought to be. See DESCRIPTIONS SUBJECT TO CONDITIONS, above. Conditions in Deeds and Other Con- veyances. The condition in a conveyance or deed is a qualifica- tion or restriction annexed to the conveyance, whereby it U provided that in case a particular event does or does not happen, or in case the grantor or grantee does or omits to do a particular act, an estate shall com- mence, be enlarged, or be defeated.* " Subject, never- theless, to," or " Subject to," or " On condition," etc. Thus the property conveyed maybe subject to the pay- ment of an annuity, an easement, an incumbrance, a mort- gage, or other condition, qualification, restriction, etc. See DESCRIPTION, ETC., WITH EXCEPTIONS, and HA- BENDUM and RBDDENDUM, above ; MORTGAGES, TKUST DEEDS, post. a-Greenl. Cruise Dig. tit. xiii, c. i, g i. Covenants in Deeds and Other Convey- ances. For the law concerning covenants, see COVENANTS, etc., above. COVENANT OP ONR PERSON TO ANOTHER. General form, And the said A. B., for himself, his heirs, exec- utors, and administrators, does covenant with the said C. D., his heirs, executors, and adminis- trators (or, his heirs and assigns, or, his heirs, exec- utors, administrators, and assigns). COVENANT AGAINST ACTS OF GRANTOR. And said party of the first part, for himself, and his heirs, executors, and administrators, does covenant, promise, and agree to and with said party of the second part, his heirs, executors, administrators, and assigns, that he has not made, done, committed, or suffered any act, matter, or thing whatsoever, whereby, or by means whereof the above-granted premises, or any part thereof, now are, or at any time here- after, shall or may be impeached, charged, cr incumbered in any manner or form whatsoever. Another Short Form. And said grantor hereby covenants and agrees that he has not done or suffered anything what- soever whereby the title of the said premises to said grantee can be rendered invalid or annulled. COVENANT AGAINST INCUMBRANCES, ETC. And said (here insert the name of the party or par. ties warranting), for himself (or, themselves), his (or, their) heirs, executors, or administrators, does hereby covenant, promise, and agree to and with said party of the second part, that at the delivery of these presents that he was lawfully seized in his own right, of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above granted and described premises, with the appurtenances ; that the same are free, clear, discharged, and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances, of what nature or kind soever ; and that he will warrant and forever defend the same unto said party of the second part, his heirs and assigns, against said parties of the first part, their heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same. COVENANT EXECUTORS OR ADMINISTRATORS. And the said party of the first part (executor, or, administrator aforesaid) does hereby covenant with the said party of the second part, his heirs and assigns, that he has, in all things, observed the requirements of law, and of all orders in and con- cerning said sale. The Same Covenant of Seizin. And said parties of the first part (executors, or administrators aforesaid) do jointly and severally for themselves, their heirs, executors, and admin- istrators, covenant, promise, and agree to and with said party of the second part, that D. D. died lawfully seized in his own right of a good, absolute, and indefeasible estate of inheritance in fee simple, of and in all and singular the above granted premises, with the appurtenances (sub- ject to, state -what, -if anything). COVENANT FURTHER ASSURANCE. And the said A. B. (party hereto), for himself, his heirs, executors, and administrators, does cove, nant, promise, and agree with said C. D., his heirs and assigns, that he, the said A. B. , his heirs, executors, and administrators, at the request and charges of said C. D., his heirs, executors, or ad- ministrators, shall and will from time to time, acrl at all times hereafter, execute, deliver, and ac- knowledge, or cause to be, etc. , all and every such further and other acts, conveyances, and assur- ances in law, for the better assuring unto said C. D. , his heirs and assigns, the premises in the man- ner above conveyed, or mentioned or intended to be conveyed, as by said C. D., nis, etc., or his or their counsel, learned in the law, shall be reason- ably advised and required. Another Short Form. That I, the said A. B., and all persons hereafter 30* CONVEYANCES. claiming under me, will at any time hereafter, at the request and expense of said C. D., his heirs and assigns, make all such further assurances for the more effectual conveying of the said premises, with the appurtenances, as may be reasonably required by him or them. COVENANT HUSBAND FOR SHLF AND WtFB. And the said A. B., for himself, etc., and for and on behalf of the said W., his wife, and her heirs, does covenant, etc. COVENANT JOINT. And said A. B.,C. D., and E. P., for themselves, their executors, and administrators, do covenant, etc. COVENANT JOINT AND SEVERAL. And said A. B., C. D.,and E. F., for themselves, their heirs, executors, and administrators, do jointly and severally covenant, etc. COVENANT MUTUAL To CONVEY, ETC. And the said C. D., for himself and his heirs, executors and administrators, does covenant, promise and agree, to and with A. B. , his heirs and assigns, that he will pay said A. B., his heirs ar.d assigns, the sum of dollars, on the day of next, and in consideration thereof the said A. B., for himself, his heirs, executors and administrators, does covenant, promise and agree to and with the said C. D., his heirs and assigns, that he will make and execute to the said C. D., his heirs and assigns, a good and sufficient deed of (inheritance, in fee simple, or otherwise, as the case in.iy be), upon the payment of the said sum as aforesaid. COVENANT POWER TO CONVEY. That said party of the first part (or that said A. B.I, at the time of the execution (or sealing) and delivery of these presents has good right, full power, and lawful authority to grant, bargain, sell and convey the same in the manner aforesaid. COVENANT QUIET ENJOYMENT. That said A. B., for himself and his heirs, ex- ecutors and administrators, does covenant, prom- ise and agree, to and with said C. D. (or said party of the second part), his heirs and assigns, shall and may at all times hereafter peaceably and quietly have, hold, use, occupy, possess and enjoy the above granted premises and every part and par- cel thereof, with the appurtenances, without any restraint, suit, action or disturbance from said A. B. (or said party of the first part), his heirs, etc., or any other person or persons lawfully claiming or to claim the same. COVENANT SEIZIN. That said party of the first part (or that said A. B.), at the time of the execution (or sealing) and delivery of these presents is lawfully seized in his own right (or otherwise, as the rase may t>e), of a good, absolute, and indefeasible estate of inher- itance, in fee simple, of and in all and singular the above granted premises, with the appurte- nances (if conveyed subject to incunibrances, etc., say subject as aforesaid). COVENANT SEVERAL. 'And the said A. B., C. D., E. F., and G. H., for themselves, severally and respectively, and for their several and respective heirs, executors, and administrators (and not jointly, or the one lor the other, or others), do covenant with said , his heirs and assigns, that, etc. COVENANT WARRANTY. See COVENANT AGAINST INCUMBRANCES, above. Conclusions in Deeds and Other Con- veyances. Signed (and sealed') ; or, Signed, sealed, and acknowledged; or, Witness our hands (and seals'); or, Given under our hands (and seals') ; or, f-In many States private seals are abolished. This does not, however, include the seals of corporations. In witness whereof, we hereunto set our hand*, etc. ; or. In witness whereof, the parties to these pres- ents have hereunto set their hands, etc. ; or, In witness whereof, we have hereunto set our hands (and affixed our seals) (at ), this day of ; or, In witness whereof, we have hereunto set our hands (or subscribed our names), the day and year first (or last) above written ; or, In witness whereof, A. B., the party of the first part, and C. D., the party of the second part, in, their own proper persons, have hereunto respect- ively and severally set their hands and seals,' this day of (or the day and year first, or last) above written. Signature (and Seals') in Deeds and Oilier Conveyances. Where a person acts in a representative capacity, h must sign in that capacity ; thus, if A. R. is adminis- trator, he must sign A. R., Administrator. (Signed) A. B. CORPORATION SIGNATURE. See CONVEYANCES CORPORATIONS, post. PARTNERSHIP SIGNATURES in conveyances affecting leal estate or any interest therein should never be by the firm-name. Each member of the partnership must sign his own name himself, or else give special authority to another to sign it. See title PARTNERSHIP, post. REPRESENTATIVE AND INDIVIDUAL SIGNATURES may be as follows, adding the seal or scrawl (scroll) when it is required by law.' A. 'B.,iy A. A., his Attorney in Fact. [Seal.*] his A. * B. mark. A. R., Administrator. A. X. , Administratrix. " E. X., Executor. " E. X., Executrix. G. N., Guardian. " S. F., Sheriff. T. T., Trustee. " Attestation or Witness Clauses In Deeds and Other Conveyance*. Test; or, Attest; or, In witness; or, 'Witnesses ; or, In presence of; or, Executed (and delivered) in presence of; tr, Signed and interchanged in presence of; or, Signed, sealed', and delivered in presence of i or, Signed, sealed', and acknowledged in presence of: ATTESTATION ERASURES OR INTERLINEATIONS. (Signed, sealed' or executed) and delivered by the above or within named A. B. , the words " (here copy them)'' having been previously interlined (or erased) in the sixth and seventh lines of the first page, in the presence of (Signed) W g T - In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. \Signaturt and Seal.\ CONVEYANCES. 303 Or thus : (Signed, sealed or executed) and deliv- ered by the above-named A. B. (four words being erased on the third page) in the presence of, etc. Or thus : (Signed, sealed or executed) and deliv- ered by the above-named A. B. (the name E. J. being previously written over an erasure on the second page; in the presence, etc. Signed, sealed, and delivered in the presence of (the word " five," on the first page was erased, the words, "be the same more or less," written over an erasure; on the second page, the words "or assigns," interlined in three places, and the word "forthwith" cancelled on the third page, before execution). [Signature of wit ness '.] ATTESTATION BLIND PERSON. Of the Execution of a Deed. Memorandum. The above written instrument was signed, sealed, and delivered by the above- named A. B., and he being blind, the same was first carefully and deliberately read over to him, in the presence of us. ATTESTATION DEAF AND DUMB PERSON. Q,' the Execution of a Deed by. Memorandum. The above written instrument was signed, sealed, and delivered by the above- named A. B. , who being deaf and dumb, but capable of reading, the same was first read over by him, and hu seemed perfectly to understand the same, in the presence of us, etc. ATTESTATION ILLITERATE PERSON. Of the Execution of a Deed by. Memorandum. The above written instrument was signed, sealed, and delivered by the within- numed A. B. , the same being previously read over to him in the presence of, etc. ATTESTATION POWER OF ATTORNEY. Of a Deed Executed tinder. (Signed, sealed, or, executed) and delivered by the within-named A. A. , as the attorney of the within- named A. B., in the presence of, etc. ATTESTATION SELF AND FOR ANOTHER. Of a Deed, Executed by one of the Parties in his own right, and as the Attorney of Another. (Signed, sealed, or executed) and delivered by the above-named A. B. with his own name and as his own act and deed, and afterwards, as the attorney, and with the name, and as the act and deed of the above-named C. D., by virtue of the authority given to him, the said A. B., for that purpose, by the indenture of assignment from the said C. D. to him, the said A. B., and which is above recited, in the presence of, etc. SHORT DEED FORMS. CONVEYANCE CHANCELLOR KENT'S DEED. This form is given by Chancellor Kent as sufficient to convey an absolute fee in any part of the United States I, A. B., in consideration of dollars, to me paid by C. D., do bargain and sell to C. D. (and lus heirs) the lot of land ( bounded, or, described), etc. 'Witness my hand and seal, etc. For form of ACKNOWLEDGMENT, see that title. CONVEYANCE CALIFORNIA DEED. I, A. B., grant to C. D. all that real property situated in county, of the State of California, bounded (or, described) as follows : Witness my hand this day of . A. B. For form of ACKNOWLEDGMENT, see that title. CONVEYANCE INDIANA DEED. A. B. conveys and warrants to C. D. (description of the premises), for the sum of . Witness my hand and seal this day of . A. B. [SEAL.J For form of ACKNOWLEDGMENT, see that title. CONVEYANCE VIRGINIA AND TEXAS DEED. A. B. doth bargain, sell, and grant unto C. D. all (here follows the description of the real estate con- vtyed). 'Witness the following signature and seal. A. B. [SEAL.] For form of ACKNOWLEDGMENT, see that title. l-4 Kent Comm. 461. It is sustained by 19 N. H. 487; i Mass. 219 ; 34 Miss. 18 ; 13 Gratt. 653 ; 2 Dana, z. 1>-A covenant of this sort ught not to be entered T.OXfJ DEI-:i> 70KMS. See NEW YOKK, PENNSYLVANIA, and the various other Stale forms, ante. GENERAL DEED FORMS. Conveyance Administrator** Deed. For other GENERAL FORMS, see the various States, ante. Know all men by these presents : or, This conveyance (or, deed, or, indenture), made this day of , witnesseth : That I, A. R., of , as administrator of the goods and estate which were of D. D., late of , deceased, intestate, being duly empowered in this behalf by the court, for the circuit (or, district), at , in county, in pursuance of a sale at public auction, and in consideration of the sum of , to me paid by E. F., of (who was the highest bidder at said sale for the estate hereinafter described), the receipt whereof (or, of which) I do hereby acknowledge, do hereby grant, bargain, sell, and convey unto said E. F. , his heirs and assigns forever, a parcel of land situate in county, and State of , bounded and de- scribed as follows, to wit : (here follows the de- scription}. To have and to hold said parcel of land, with the privileges and appurtenances thereof, to the said E. F., his heirs and assigns forever. And I, the said A. R., do covenant with said E. F., his heirs and assigns (That said D. D. died seized of the above granted premises' 1 ): that I am duly empowered to convey the same to the said E. F., as aforesaid : that I have in all things ob- served the rules and directions of the law in said sale : and that I will, and my heirs, executors, and administrators shall, warrant and defend the same unto the said E. F., his heirs and assigns, against all persons claiming the same, by, from, or under the said D. D., or me, the said A. R., but against no other persons. In witness whereof, I have hereunto set my hand (and seal) this day of (or, the day and year first above written). A. R., [SEAL.] Administrator. For form of ACKNOWLEDGMENT, see that title. Conveyance Administrator De P.oiiis 11011 Deed. With the Will Annexed Setting forth Order sat Length. To all to whom these presents shall come, A. R.,of .administrator with the will annexed of the goods and chattels, rights and credits, which have not been administered, and of which D. D., late of . deceased, sends greeting: or, This conveyance (deed, or, indenture), made this day of , by A. R., administrator of the estate and effects of D. D., deceased, witnesseth: or, Know all men by these presents: 'Whereas, the court, holden at , in , at its term, on the day of , upon ap- plication duly made by A. P., granted an order for the sale of certain real property of said D. D. in the words and figures, as follows: (here copy the order at length] : And whereas, pursuant to law, and the terms of said order, upon giving bond, being duly sworn, and upon due notice, valuation, and ap- praisement, a sale was by me made at public auction to E. F. of the hereinafter granted prem- ises, the same being (a part of) the premises de- scribed in said order, for the sum of dollars, he being the highest bidder therefor, returns of which was thereupon fully made to said court ; And whereas, upon examination of said returns by said court it appearing that such sale was duly and legally made, and fairly conducted, and that the sum bid was not disproportional (or, exceeded two-thirds [or, three-fourths] the appraised value there- of, or, that a greater than the above sum cannot be ob- tained), said court did, on the day of , make an order confirming said sale, and directing a conveyance (or, deed, etc.) to be executed, which order is in the words and figures following (here copy the order at length) : into by the administrator. It is sufficient that he con- vey the property sold, and covenant only for his own acts. J04 CONVEYANCES. Now, therefore (know ye thnt) I, A. R., by virtue of the power and authonty in me vested as afore- said, and in consideration of the sum of dol- lars to me paid by said E. F., the receipt (of which, r>r) whereof is hereby acknowledged, do hereby grant, bargain, sell and convey unto said E. F., his heirs and assigns, forever, all (here follows the description of the premises conveyed t. To have and to hold the above-granted prem- ises to the said E. F., his heirs and assigns, for- ever: And I, the said A. R., for myself, my heirs, ex- ecutors, and administrators, do hereby covenant, promise and agree with said E. F., his heirs and assigns, that in pursuance of the order aforesaid 1 took the oath, gave bond, and public notice, and made the sale and due return thereof as above set forth, and in all things have observed the requirements of the law and said order in said sale. In witness whereof, I, the said A. R.,as admin- istrator aforesaid, have hereunto set my hand (and seal) this day of (or the day and year first above written). A. R., \Seaj] Administrator. (Attestation when necessary) For form of ACKNOWLEDGMENT, see that title. Conveyance Al mill isf rator's Deed. When Intestate has Contracted to Convey To all to whom these presents shall come, etc. (as in the above form). Or, This conveyance, etc. (as in the above form). Whereas, the said D. D., in his lifetime, and (on or about the day of ), by a contract bearing date the day of , agreed, to and with E. F., of , to sell and convey to him, his heirs and assigns, forever, the premises hereinafter de- scpibed, in consideration of the payment by said E. F. of the sum of dollars ; butsaid D. D. died intestate, without performing said contract ; And whereas, at the term of the court, holden at , in , upon the application of , said court did, on the day of , order said administrator to carry into effect the terms and conditions of said contract: Now, therefore (know ye that), by virtue of the authority and order aforesaid, and in pursuance of the terms and conditions of said contract, on the part of said D. D. to be performed, and in consideration of the payment to me of said sum of dollars by said E. F. , and the performance and fulfilment of all things in the above-named contract on his part to be performed, I, the said A. R., do hereby grant, bargain, sell and convey unto said E. F.,his heirs and assigns, forever, the said (het e follows a description of the premises), with the appurtenances. To have and to hold the same unto the said E. P., his heirs, to his and their use forever. In witness whereof, etc. For form of ACKNOWLEDGMENT, see that title. Conveyance Administrator's Deed. With a Recital. To all, etc. (as in abate form). Or, This conveyance, etc. (as in the above for > Commissioners. R. S.j (Signed, sealed, or, executed) and ) Delivered in presence of / \Signature of witness.] For form of ACKNOWLEDGMENT, see that title. Conveyance Committee's Deed. By Committee of Idiot, Lunatic, or Habitual Drunkard. This conveyance (deed, or, indenture), made this day of , by C. E., of , in the county of , and State of , committee of the person and estate of I. D., an idiot (or, a lunatic, or, an habitual drunkard), of the first part, and E. F., of , aforesaid, of the second part. Whereas, upon an application duly made, the court of , at , on the day of , by an order bearing date on that day, directed the real estate of said I. D., hereinafter described (er, so much of the real estate of said 1. D. f& might be necessary to raise the sum of dollars), to be sold by the said C. E. at public or private sale, subject to the approbation of the court, as by the terms of said order will more fully appear ; and whereas, pursuant to law, and to the terms of said order (after giving the additional 'security required by said order), and upon due notice, a sale was made by said C. E., by public auction, to the said party of the second part, of the hereinafter granted premises, being (a part of) the real estate aforesaid of said I. D., for the sum of dollars, said party of the second part being the highest bidder therefor (or state sale by private agreement): and thereupon the said C. E., on oath, made his report of such agreement to this court, pursuant to the last recited order, upon which an order was made by said court, at the , in said county, bearing date the day of , confirm- ing said report, approving and confirming said sale, and directing the same to be carried into effect, and ordering- the said co-.nmittee to exe- cute, acknowledge, and delivc; a deed of said premises to said party of the second part, on his complying with the terms on which, by said agreement, the same was to be delivered ; And whereas, the said party of the second part has complied with the said terms : Now this conveyance (deed or indenture) wit- nesseth : That tne said party of the first part, committee as aforesaid, in consideration of the sum of dollars, to him paid by the said party of the sec- ond part, the receipt whereof is hereby acknowl- edged, has granted, bargained and sold, and by these presents does grant, bargain and sell unto the said party of the second part, and to his heirs and assigns forever, all (here follows description of premises), together with all and singular the tene- ments, hereditaments and appurtenances there- unto belonging or in anywise appertaining ; and the reversion and reversions, remainder and re- mainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, and of the said M. N., of, in and to the above-granted premises, and every part and par- cel thereof. To have and to hold all and singular the above- granted premises, together with the appurte- nances and every part thereof, unto the said partj of the second part, his heirs and assigns, forever (Covenant as to regularity of proceedings, if de sired. See ante.) In witness whereof, the said party of the firs part has hereunto set his hand and seal, the da and year first above written. (Signature, title, and seal.) Signed, sealed, acknowledged, and I delivered in presence of ) (Signature of witness.) For form of ACKNOWLEDGMENT, see that title. Conveyance Correct Mistakes. See CONVEYANCE, MISTAKES, ETC., post. Conveyance Confirmation Deed. Confirming a Prior Voidable Deed. This conveyance (deed, or indenture), made vh day of , by A. B., of , county , at J State of , of the first part, to C. D.,of , in the said county, of the second part. Whereas, by a deed bearing date on the day of , and therein mentioned to be made b> the party hereto of the first part (with one E F.). of the one part, and (or unto) the said C. D., ot the other part, and in consideration of , the p, em- ises hereinafter described were granted and con- veyed, or intended so to be, to the said C. D. v hi heirs and assigns, forever; And whereas (here recite defect which rendered the deed voidable e, g. , infancy, thus) : the said A. B., at the time of the date and making the said in part recited deed, was not of the age of twenty- one years, but has since attained to such age, and has this day, and before the execution of these presents, duly sealed and delivered the said in part recited deed : Now this conveyance (deed, or indenture) wit- nesseth : That (as well in the performance of a covenant for further assurance in the said deed contained, as also) for and in consideration of the sum of dollars, to him, the said A. B. , in hand paid by the said C. D., the receipt whereof the said A. B. does hereby acknowledge, he, the said A. B. , has, and now by these presents, does ratify, approve and confirm said deed'* and remise, release and quit- claim unto the said C. D., in his actual posses-, sion now being, by virtue of the before-mentioned deed, and to h.isheirs and assigns, all (here follow* the description of premises). To have and to hold all and singular the above, described premises, together with the appurte. nances and every part thereof, unto said party of the second part, his heirs and assigns, forever. And the said A. B. (not naming the wife), for him- self, his heirs, executors, and administrators, does hereby covenant, promise, and agree to and with the said party of the second part, his heirs and assigns, that he has not made, done, com- mitted, executed, or suffered any act or acts, thing or things whatsoever, whereby or by means whereof, the above-mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter, shall or may be im- peached, charged or incumbered, in any manner or way whatsoever. ll -These are the appropriate words for such a deed. 2 Milliard R. Prop. 315. CONVEYANCES. In witness whereof, the said party (or parties) of the first part has (or have) hereunto set his hand and seal (or their hands and seals), the day and year first above written. (Signatures eed. This conveyance 'deed, or indenture), made this day of , A. D. , between A. B., of county, and State of (and W. B., his wife), of the first part, and C. B., of the same place, son of the said A. B., of the second part, witnesseth : That the said A. B., for and in consideration of the natural love and affection which he has unto the said C. B., by these presents does give, grant, alien, convey and confirm unto the said C. B., his heirs and assigns, forever, all (here insert descrip- tion of the premises) : together with all and sin- gular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining ; and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and all the estate, right (dower and claim of dower), title, interest, property, claim and demand, whatsoever, of the said party (or, par- ties), of the first part, of, in and to the said prem- ises, with the appurtenances, and every part thereof: To have and to hold all and singular the above- granted premises, with the appurtenances, unto the said C. B., his heirs and assigns, forever. In witness whereof, the party (or, parties) of the first part has (or, have) hereunto set his hand and seal (or, their hands and seals), the day and year above written. (Signatures and seals.) Executed and delivered) in presence of / for form of ACKNOWLEDGMENT, see that title. Conveyance Ground-Rent Deed. See PENNSYLVANIA FORMS, ante. Conveyance Guardian's Deed. See forms under the various States, ante. Conveyance Husband and Wile. See forms under the various States, ante. Conveyance Indent u re. See subjects, INDENTURE and DEED POLL, in the text above. Conveyance Life Estate. See HABENDUM JN DEEDS, ante. Conveyance Masters in Chancery Deed. This conveyance ("deed, or indenture), made this day of , by M. C.,a master in chancery in rnd for the State of , in county, party of Hie first part, and C. D., of , of the second part. Whereas, at a court of chancery, held at , in , before the vice-chancellor of the cir- cuit of the State of , on the day of , it was, among other things, ordered, adjudged and decreed by the said court, in a certain cause then pending in the said court between C. T., com- puinant, and D. T., defendant, that all and sin- fular the mortgaged premises mentioned in the ill of complaint in said cause, ar>d in said decree described, or so much thereof as might be suffi- cient to raise the amount due to the complainant for principal, interest, and costs in said cause, and which might be sold separately without ma- terial injury to the parties interested, be sold at public auction, according to the course and prac- tice of this court, by or under the direction of a master thereof, in county of ; that the said sale be made in the county where the said mort- gaged premises, or the greater part thereof, are situated ; that said master give public notice of the time and place of such sale, according to the course and practice of said court, and as re- quired by law, and that any of the parties in said cause might become a purchaser or purchasers on such sale; that the said master execute to the purchaser or purchasers of the said mortgaged E remises, or such part or parts thereof as should e so sold, a good and sufficient deed or deeds of conveyance for the same ; And whereas, a certificate of the enrolment of said decree, signed by the clerk of said court, 1 as been presented to the said master in chancery, the party of the first part ; And whereas he, in pursuance of the order and decree of the said court, did, on the day of , sell by public auction, at , in the county of , (part of) the premises in the said order men- tioned, due notice of the time and place of sucb sale being first given, agreeably to the said order at which sale the premises hereinafter described were struck off to said party of the second pa'-t, for the sum of dollars, that being the highest sum bid for the same : Now this conveyance (deed, or indenture) wit nesseth: That the said master in chancery, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid^ in pursuance of the order and decree of the said court, and in conformity to the statute in such case made and provided, and also in considera- tion of the premises, and of the said sum of money so bidden as aforesaid being first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, and by these presents does grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns, all those two certain lots, pieces or parcels of land, being (part of) the said mortgaged premises, situate, lying and being in county and State of (etc., inserting the description), together with all and sin- gular the tenements, hereditaments, and appur- tenances to the same belonging, or in anywise appertaining: To have and to hold all and singular the above- granted premises, with the appurtenances and every part thereof, unto the said party of the sec- ond part, his heirs and assigns, forever. In witness whereof, the said M. C., master in chancery as aforesaid, hath hereto set his hand and seal, the day and year first above written. M.C., fS/.| Executed and delivered ) Master in Chancery. in presence of j For form of ACKNOWLEDGMENT, see that title. Conveyance Mistake To Correct. Deed to Correct Mistakes in a Prior Conveyance. This conveyance (deed, or indenture), made this day of , by A. B. , of , of the first part, and C. D. , of , of the second part, witnesseth : Whereas, the said A. B. did, on or about the day of , execute and deliver to the party of the second part (or, to one C. D., under whom the party of the second part hereto claims), for the con- sideration therein mentioned, a conveyance of certain lands in , hereinafter more particu- larly described, which said conveyance is re- corded in the office of the , of county. book , page , of conveyances ; And whereas, in said conveyance, by mistake. the words were written instead of the words (or othi'r-ii'ise, setting out the errors) ; And whereas, to prevent difficulties hereafter, it is expedient to correct said errors : CONVEYANCES. Now, therefore, this conveyance (deed or inden- ture) witnesseth : That the said party of the first part, in consid- eration of the premises and of one dollar to him paid by the party of the second part, hereby grants, conveys, releases and confirms unto the said party of the second part, his heirs and as- signs, forever, all (etc., giving the description, and concluding as in other cases). For lorm of ACKNOWLEDGMENT, see that title. Conveyance Partition I>eed. This conveyance (deed, or indenture), made the day of , between A. B., of county, and State of , of the first part, and C. D., of county, in the State of , of the second part, and E. F., of county, and State of , of the third part: Whereas, the parties hereto have and hold as tenants in common (or as joint tenants), in equal parts (or, viz., the said A. B. two equal undivided sixths, and the said C. D. one equal undivided sixth, and the said E. F. three, etc., of) a certain tract, piece, or parcel of land, situate in , being the same premises conveyed to them by D. D. by deed bearing date the day of (or devised to them by the will of D. D., or otherwise, according to the fact) : and whereas, the parties hereto have mutually agreed to make partition of said land and hold their respective shares in severally : Now this conveyance (deed, or indenture) wit- nesseth : i. The said A. B., party of the first part, shall from henceforth have, hold, possess and enjoy in severally by himself, and to h ; m, and his heirs and assigns, for his share and proportion of the said lands and premises, all (here follows descrip- tion of the part allotted to him) ; and the said par- ties of the second and third parts, in considera- tion of the premises (and of the sum of dollars to them paid by the said A. B. for equality of partition, the receipt whereof is hereby acknowledged), do hereby give, grant, set over, convey, release and confirm unto the said A. B., the party of the first part, his heirs and assigns, forever, the last above- described premises, together with all and sin- gular the tenements, hereditamenls and appur- tenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, righl, title, interest (dower and right of dower), property, pos- session, claim and demand whatsoever of ihe said parlies of the second and third parls, both in law and in equity, of, in and to the above- granted premises, with the hereditaments and appurtenances : To have and to hold all and singular the above- granted premises, togelher wilh Ihe appurte- nances and every part thereof, unto the said party of the first part, his heirs and assigns, forever (if there is any incumbrance , add, subject to, etc., specifying it). And the said parties of the second and third parts do hereby severally, and not joinlly, but each for himself, and for his heirs, execulors and administrators, covenanl, promise and agree, lo and wilh the said party of the first part, lhal he, Ihe said A. B., his heirs and assigns, shall or law- fully may, from lime lo time, and at all limes hereafter, forever, freely, peaceably and quietly have, hold, occupy, possess and enjoy Ihe said first-described piece or allotment of land, with the appurtenances, and receive ard take the rents, issues and profits thereof, will out any mo- lestation, interruption or denial of them, the par- ties of the second and third parts, their heirs or assigns, or of any other person or persons what- soever, lawfully claiming or to claim by, from or under them or either of them, or by or with his or their acl, privity or procurement. 3. The said C. D. , party of Ihe second pan, shall from henceforth have, hold, possess and enjoy in severally by himself, and to him, and his heirs and assigns, for his share and proportion of Ihe said lands and premises, all (here insert description of tht part allotted to hint) ; and the said parties of the first and third parts do hereby give, granl, set ver, convey, release and confirm unto the said C. D., the party of the second part, his heirs and assigns, forever, the last above-described prem- ises : together with (etc. , as above ; and so on with the allotment to the party of the third part). In witness whereof, the parties to these pres- ents have hereunto interchangeably set their hands and seals, the day and year first above writlen. (Signatures and seals.) Executed and delivered 1 in presence of / For form of ACKNOWLEDGMENT, see that title. Conveyance Pew Deed. By the Proprietors of a Church. Know all men by these presents: That we, the proprietors (or, trustees, etc.) of the Church, in , in consideration of dol- lars, lo us paid by C. D., of , do hereby grant, bargain, sell and convey unto the said C. D., his heirs and assigns, the pew in the church afore- said, numbered . To have and to hold the same, with the priv- ileges and appurtenances, to the said C. D., his heirs and assigns, forever: And the said proprietors (or, trustees, etc.) here- by covenanl with the said C. D., his heirs and assigns, lhal ihey are the lawful owners of the said pew, and have good right and authority to sell the same as aforesaid : Provided, however, that this deed shall not be binding until recorded in the books of said church. In testimony whereof, the said proprietors (or, trustees, etc.) have caused these presents to be signed by their treasurer, and their corporale seal lo be hereunlo affixed by their treasurer, this day of . \Seul.\ [Signatures.} Executed and delivered ) in presence of J For form of ACKNOWLEDGMENT, see that title. Conveyance Quit-Claim Deed. See various forms in different States, ante. Conveyance Referee's Deed. Pursuant to a Judii lal Sale The following Parties Joining; Administratrix, Husband and Wife in Right of Wife ; Wife an Executrix ; and Infants, by their Guardians. This conveyance (deed, or indenture), made thi* day of , in the year , by R. T., (special) referee and Iruslee, appoinled by the courl, parly of Ihe firsl parl, A. X., of , administra- trix with the will annexed of D. D., deceased, and the said A. X., in her own righl, H. X.,of , and W. X., his wife, in righl of the said W. X., and the said W. X., as executrix of the last will and testamenl of D. D., deceased, I. N., of , and F. T., of , by G. N., Iheir guardian, parlies of Ihe second part, and T. B. , of , of the third part : Whereas, at a special term of the court of the Stale of , held for Ihe counly of , at , on Ihe day of , it was among other things ordered, adjudged and decreed by the said court, in a certain cause then pending in the said court, between {here name the parties to the suit), thai Ihe said R. R. T., as such referee and Irus- lee, for lhal purpose appointed by Ihe said decre- lal order, proceed wilh all convenienl speed, lo sell for cash, all real estate which Ihe said D. D., deceased, died seized or possessed of or enlilled lo, and lhal each dislincl farm, tract or lot be sold separately, and at public auction, in the county of , by or under the direction of said referee and truslee, and lhal said referee and Irustee give public notice of the time and place of such sale, by advertising the same for three weeks, twice each week, in the county of , and for three weeks, once each week, in any other county in Ihis Slale in which the property may be situated, as in case of sale of mortgaged premises in suits for the foreclosure of mortgages on lands, and thai such referee and trustee exe- cute to the purchaser or purchasers, good and sufficient deed or deeds of conveyance therefor: And it was further ordered, adjudged, and de- creed, in and by the said decretal order, that the parties to the said suit, respectively that is to CONVEYANCES. 39 say, the adult parties, personally, and the said Titant defendants by their several guardians ad Stem (who were thereby severally appointed and juthorixed for that purpose,) unite with the said referee and trustee in such deed or deeds of con- veyance; and that the said W. X., if living, unite in the said deed or deeds as such executrix as aforesaid, and in case the said E. D. should die before the said sale and conveyance, then it was ordered that no proceedings be had towards such sale, until some party to the said suit should obtain letters of administration with the will an- nexed, of the goods, chattels and credits not ad- ministered of the decedent, W. D., thereby left without a personal representative, and that the party obtaining such letters of administration also unite as such in the said deed or deeds of conveyance. And whereas the said R. R. T., the said party of the first part, as referee or trustee aforesaid, in pursuance of the said decretal order of the said court, did, on the day of , sell at public auction, at the , in , in the county of , the premises hereinafter mentioned and described, due notice of the time and place of such sale being first given, agreeably to the said decretal order, by advertising the same for three weeks and upwards, twice each week, in a news- paper published in the city of , and for three weeks and upwards, once each week, in a news- paper published in the county of , in which county part of the property to be sold is situated, such advertisement being as in the case of sales of mortgaged premises in suits for the foreclosure of mortgages on lands; at which sale the prem- ises hereinafter described were struck off to the said party of the third part for the sum of dollars, that being the highest sum bidden for the same, and he being the highest bidder therefor: Now this conveyance (deed, or indenture) wit- nesseth : That the said party of the first part, as referee and trustee as aforesaid, and the parties of the second part to these presents, in order to carry into effect the sale so made by said party of the first part, and in pursuance of said decretal order, and in consideration of the premises, and of the said sum of money so bidden as aforesaid being first duly paid by the said party of the third part to the said party of the first part, the receipt whereof is hereby acknowledged by the said party of the first part, have bargained and sold, and by these presents do bargain, sell and convey unto the said party of the third part all that cer- tain lot, piece or parcel of land (here follows the description of the premises conveyed], together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in aaywiss appertaining, and the reversion and re- versions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest (doiver and right of dower), property, possession, claim and demand whatsoever, as well at law as in equity, of the said parties of the first and second parts, and of each and every of them, of, in and to the above-described premises, and every part and parcel thereof, with the ap- purtenances. To have and to hold all and singular the above- mentioned and described premises, together with the appurtenances, unto the said party of the third part, his heirs and assigns forever. In witness whereof, the said parties of the first and second parts have hereto set their hands and eals, the day and year first above written. R. R. T. , Trustee and Referee. \Seat.\ A. X., Administratrix, etc \Seal. A. B., [Seal. H. X., \Seat. W. X., \Seal. W. X., Executrix, etc. [Seal. I. N. and [Seal.] F. T., by Q. tl., their Guardian. [Seal.} Signed, sealed and delivered ) in the presence of j ( Witnesses' signatures. ) For form of ACKNOWLEDGMENT, sec that title, Conveyance Relenae Deed. To all people to whom these presents shall come, A. B., C. D., E. F. and W., his wife, of , send greeting : or, This conveyance (or deed, etc.), made this day of , by A. B., etc., to H. I., etc., witness- eth. Or, Know all men by these presents, etc. (Insert recitals, etc., if any.) Now know ye ; that said parties of the first part, in consideration of the sum of dollars, the receipt of which is hereby acknowledged, do by these presents remise, release, and forever quit- claim unto the said H I., and to his heirs and assigns, all the estate and estates, shares, pur- ports and dividends, right, title, interest, prop- erty, claim and demand whatsoever of them, the parties of the first part, in law or equity, or other- wise howsoever, of, in, to, or out of all that tract, part and parcel of land, situate, lying and being in the township of , county of , State of (in the actual possession and seizin of the said H. I.), bounded, limited, and described as follows, to wit: (here follows the description of the premises), together with all and singular the buildings, im- provements, rights, members, and appurtenances whatsoever thereunto belonging or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof. To have and to hold all and singular the prem- ises hereby remisea and released, or mentioned or intended to be, with the appurtenances, unto the said H. I., his heirs and assigns, forever. So that neither of said parties, nor their heirs, nor either or any of them, nor any other person or persons whomsoever, lawfully claiming or to claim by, from or under them or any of them, shall or may at any time or times hereafter, have, claim, or challenge, or demand any estate, right, title, or interest of, in, to, or out of the said premises, etc., hereditaments, etc., or any part or parcel thereof; but thereof and therefrom shall and will be utterly excluded and forever debarred by these presents. In witness, etc. For form of ACKNOWLEDGMENT, see that title. Conveyance Re version in Fee. Subject to an Outstanding Life Estate. This conveyance (or deed, or indenture), made this day of , between A. B. , of county, in the State of , of the first part, and C. D., of county, and State of , of the second part : \Vhereas, M. B. (mother of said party of the firs* part), holds for the term of her natural life the premises hereinafter described, the reversion and remainder whereof belongs to the party of the first part and his heirs : Now this conveyance (or deed, or indenture) wit- nesseth : That the said party of the first part, in consiu eration of dollars, to him paid by the said party of the second part, the receipt whereof is hereby acknowledged, has and by these presents does grant, bargain, sell, alien, remise, release, convey and confirm unto the said party of the second part, his heirs and assigns, forever, the reversion and remainder of all (here insert descrip- tion of the premises) To have and to hold the said reversion and re- mainder, and the rents, issues, and profits there- of, when it shall happen, upon the death of said M. B. , in and of all and singular the above-granted premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns, forever. (If there is any incumb ranee, add, subject to, etc., specifying it.) Andth; said party of the first part, for himself, his heirs, executors and administrators, does cove- nant, promise and agree, to and with the said party of tb-s second part, his heirs and assigns, that the said party of the first part is lawfully seized in his own right of a good, absolute and indefeasi- ble estate in remainder in the fee of said prem- ises, with the appurtenances, immediately from and after the decease of the said M. B. (if con- veyea "Abject to 26; i Washb. Real Prop. 300 11-4 Burr. 2209: i Mod. 14 : 11 Id. 42 : 2 Id. 89 ; 3 Burr. 1446 ; Bac. Abr. Leases : 6 Watts, 362; 3 M'Cord, 211 , 3 Fairf. 478: 5 Rand. 571 : i Root, 318. O-i M & S. 342: Cro. Car 473: Cro Jac. 34; Plowd 187, 191: Dyer, 376, . i M. & Sel 299: 5 B. & Ad. 43; 6 M. & W. 234, 269. |-i 4 Pet. 322. |-2 Johns. 231; is Wend 656; 4 B. & C. 272 r-3 Hill (N Y.) 345; i Speers. 408. 8-9 Conn 374; 4 Kawle, 330 , 9 Cow. 747. t-i4 Barb. 434 ; 3 B. & C. 870- CONVEYANCES. otherwise defining their rights and duties in relation to repairs, taxes, insurance, renewals, residence on the premises, modes of cultivation, fixtures and the like. In every well-drawn lease provision is made for a forfeiture of the term in case the tenant refuses to pay rent, commits waste, or is guilty of a breach of the covenant to repair, insure, reside on the premises, or the like. This clause enables the lessor or his assigns to re-enter, in any such event, upon the leased premises and eject the tenant, leaving both parties in the same condition as if the lease were a nullity; but in the absence of a proviso for re-entry, the lessor would pos- sess no such power, the mere breach of a covenant enabling him to sue for damages only." The forfeiture will generally be enforced by the courts, except where (the landlord's damages are a mere matter of computa- tion, and can be readily compensated by money.* But in the case of a forfeiture for the non-payment of rent, the proviso is allowed to operate simply as a security for rent, and the tenant will be relieved from its effects at any time by paying the landlord, or bringing into court the amount of all arrears of rent, with interest and costs. LEASES VARIOUS DETAILS. Introductions in Leases. See other Conveyances. The introduction to a conveyance, deed, lease, mort- gage, etc., is called the " Testatum " clause. See the text preceding DEED FORMS, above. A. B. (or A. B. and W. B. his wife [conveys, or] leases, etc. I (or we, A. B., of , and W. B. his wife) for a consideration, etc. (convey, or) lease, etc. This (agreement, or conveyance, or lease, or inden- ture, bipartite, tripartite, quadripartite, etc.) witness- eth: That, etc. This agreement (conveyance, or lease, etc.) made this day of , witnesseth : That, etc. This (agreement, or conveyance, or lease, etc. ), made this day of ,by A. B.,of ,to C. D., of , witnesseth : That, etc. This agreement (conveyance, or lease, etc.), made this day of , in , by A. B., of county, in the State (or Commonwealth) of , far- mer, to C. D., of county, in the State (or Commonwealth) of , merchant, witnesseth : That, etc. Know all men by these presents : That this (agreement, or conveyance, or lease, etc., as above). Know all men by these presents: That A. B., of , has, for a consideration of , etc., the receipt of which, etc., has leased and conveyed, and does by these presents lease and convey unto C. D., of , etc. This (agreement, or conveyance, or lease, etc. ), made and entered into this day of , by and be- tween A. B. , of county, and the State of , party of the first part, and C. D., of county, in the State of , of the second part, wit- nesseth : That, etc. Saving and excepting, etc. To all to whom these presents may come greet- ing (or To all whom it may concern) : Know ye : That this (agreement, or conveyance, or lease, etc.), by and between the , a corporation existing under the laws of the State (or Commonwealth) of , of the first part, and C. D., E. F., and G. H., a company doing business under the firm- name and style of the D.,F., H. manufactur- ing company, of the second part, witnesseth : That, etc. M-3 Wils. 127 ; 2 Cow. 591 ; 2 Overt. 233. v-7 Johns. 35 ; 4 Munf. 332 ; 2 Price, 200. PremiMes tn Len>n, See other Conreyances. i. STATEMENT OP PARTIES. See DEFIES, ante, p. 299. 2. RECITALS FOK EXHLANAI .',-* See DEEDS, ante, p. 299. 3- DESCRIPTIONS OF PROPERTY LEASED, WITH EXCEPTIONS, ETC. See DEEDS, ante, p. 300. H abend urn in Leases. See Other Conveyances. The habendum limits and defines what estate th grantee is to have in the premises conveyed, as, an estates for lives, years, or a less period ; an absolute or conditional, joint or several, restricted, or limited estate, etc., etc HABENDUM LIFE ESTATE. To have and to hold the same during the nat- ural life (or lives) of . Another. To have and to hold said premises, with their appurtenances, unto said C. D. , and his legal rep- resentatives, from last past, for and during (the term of ninety-nine years thence next ensuing, and to be fully complete and ended if) (orforand during the lives of) D. D. (daughter of said C. D.), S. D. (son ot said C. D.), and N. D. (nephew of said C. D.), or any or either of them shall so long live. HABENDUM LIVES AND YEARS. To have and to hold said premises, together with all and singular the buildings, ways, streets, alleys, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurte- nances whatsoever, unto said C. D. , his executors, administrators (and assigns), from henceforth, for and during the natural life and lives of him, the said C. D. (aged about years), of D. D., his daughter (aged about years), and of S. D., his son (aged about years), and of the survivor of them, and for and during the further term of years, to commence from and immediately after the death of the survivor of them. Yielding and paying therefor, etc. HABENDUM YEARS. To have and to hold said premises, etc., for and during the term of years from and after the day of , last past. Retldenduni or Reservation in Leases. See Other Conveyances. The reddendum (or reservation) is that clause In a conveyance, deed, lease, etc., by which the grantor re- serves something new to himself out of that which he granted before. It usually follows the habendum. REDDENDUM OR RESERVATION BALCONY, OBSERVA- TORY, ETC. Excepting and always reserving unto said C. D., etc., their executors, administrators and as- signs, liberty for them and such other persons as they or either of them shall elect (not exceeding in number at any one time) to pass and re pass to and from and stand on and occupy the bal- cony (or observatory, etc.), and witness all exhibi- tions, pastimes, parades, reviews, shows, or other public affairs, etc., that shall be or appear in and upon the streets near the same, from time to time, and at all times during the said term here- under granted. REDDENDUM OR RESERVATION DRIVE, ROADWAY, ETC. Excepting and always reserving out of the premises hereby leased and conveyed unto said A. B. , etc., the drive or roadway (describing it) through and over said premises, for the said A. B., to and from to , for any purpose whatsoever. REDDENDUM OR RESERVATION PRIVATE PASSAGE, ROADWAY, OR WAY. Excepting and always reserving unto said A. B., his executors, administrators, tenants, and assigns, and all other persons whatsoever, free leave and liberty to pass and repass, by ec CONVEYANCES. 3>5 through, the passage, roadway, or way, lying through the said premises, out of into , on the back part of said premises called the , leading from into (at all convenient times in the daytime only), during the term of years herein- before (or hereinafter) granted. REDDENDUM OR RESERVATION TIMBER, ETC. Excepting and always reserving out of the premises herein leased and conveyed all timber, trees, etc., standing and being on , etc. REDDENDUM OR RESERVATION WATER-COURSE. Excepting and always out of the present lease reserving unto said A. B. and W. B. his wife, their executors, administrators and assigns, and the inhabitants of said premises, the water- course or passage made through and under the of said premises for the conveyance of water from to , and free liberty of ingress, egress, and regress in and upon said premises, for them, the said A. B. and W., their executors, administrators, tenants, workmen, servants, and assigns, at all times convenient and necessary, during the term hereby granted, to cleanse, re- pair and use said water-course. Conditions and Provisos in Leases. See Other Conveyances. The condition in a conveyance or deed, lease, etc., is a qualification or restriction annexed to the conveyance, whereby it is provided that in case a particular event does or does not happen, or in case the grantor orgrantee does or omits to do a particular act, an estate shall com- mence, be enlarged, or be defeated. "Subject to," or " Subject, nevertheless, to," or " On condition," " Pro- vided," " Provided always." " Provided nevertheless," etc. Thus the property conveyed may be subject to the payment of an annuity, an easement, an incumbrance, a mortgage, or other condition, qualification, restriction, etc. See DESCRIPTION, ETC., WITH EXCEPTIONS, and HA- BENDUM and REDDENDUM, above MORTGAGES TRUST DEEDS, post. CONDITION OR PROVISO DEATH OP LESSEE. Provided always, and these presents are upon this condition: That if, during the time hereby conveyed and leased, said C. D. shall die, and his executors, administrators or assigns shall at any time after be desirous to leave and quit said premises, they shall, after full payment of all rent accrued ;.nd to accrue, give or leave months' warn- ,ng, in writing, to said A. B., or his heirs, execu- tors, administrators or assigns, at his or their places of abode, and at the expiration of said months these presents, and the term hereby granted, as for any further continuance, shall cease, determine, and be utterly void, anything herein to the contrary notwithstanding. CONDITION OR PROVISO NOTICE TO DETERMINE LEASE. Provided always, and these presents are upon this condition : That it shall be lawful to and for either said A. B. or his legal representatives, or said C. D. or his legal representatives, to determine and make void this lease at the expiration of (months, or years, etc.), of the said term of (months, or years, etc.), in causing notice or warning, in writ- ing, for that purpose, to be given to or left for the other of them, his (or her) legal representatives at his (or their) usual or last place of abode, months at least before the time limited for deter- mining the same as aforesaid (anything herein con- tained to the contrary notwithstanding). CONDITION OR PROVISO RE-ENTRY FOR NON- PAYMENT OF RENT. Provided always, and these presents are upon this express condition : That if said (monthly, or quarterly, or yearly, etc.) rent or sum of dollars, or any part thereof, shall be behind and unpaid for the space of days next after the said days of payment (whereon the same is appointed to be paid as aforesaid), then it shall be lawful to and for said A. B., his heirs, executors, administrators or assigns, to re-enter said premises or any part thereof, and the same to repossess and enjoy, as in his and their former estate, anything herein contained to the contrary notwithstanding. CONDITION OR PROVISO RE-ENTRY, OCCUPATION, OR TRADE BEING OFFENSIVE, ETC. Provided always (or nevertheless): That if said C. D., his executors, administra- tors or assigns shall permit or suffer any person or persons to occupy said premises or any part thereof who shall engage in, use, follow, or per- mit the business, trade or occupation of therein, then and from thenceforth, and from any of said causes, it shall be lawful for said A. B., his heirs or assigns, and without notice thereof, to re-enter and enjoy said premises:, in part or in whole, as in their former estate and right (.anything herein, to the contrary notwithstanding). CONDITION OR PROVISO RE-ENTRY FOR VARIOUS CAUSES, WITH WAIVER OF NOTICE, ETC. Provided, however, and it is further agreed : That if said rent shall remain unpaid days after the same shall become payable as aforesaid, or if said party of the second part shall assign this lease, or underlet, or otherwise dispose of the whole or any part of said leased premises, or use the same for any purpose save that hereinbefore authorized and agreed upon, or shall make any alteration therein without the consent of said party of the first part being first obtained in writing, or shall commit waste or suffer it to be committed on said premises, or injure or misuse the same, then this lease shall thereupon and without notice or demand from said party of the first part expire, and said party of the first part may re-enter said premises or any part thereof and repossess and recover the same to all intents and purposes as though said party of the second part had never occupied the same, and that with- out such re-entry, and without demand for rent, said party of the first part may recover posses- sion thereof in the manner prescribed by statute relating to summary proceedings in such cases. Covenants in Leases. See Other Conveyances. For the law concerning covenants, see COVENANTS, etc., in the text to DEEDS, above. COVENANT ASSIGNMENT OF LEASE ALLOWED. That said C. D. may assign, lease, or otherwise dispose of or part with all or any part of the prem- ises and tenements to him conveyed and leased by these presents, or by a (conveyance or) lease bearing date the day of , unto , etc., for all or any part of his estate, interest, or terms thereunder, or by virtue of his said lease, any re- striction therein to the contrary notwithstanding. COVENANT ASSIGNMENT OF LEASB PROHIBITED. That said party of the second part (his executors, administrators or assigns, or any or either of them), shall not at any time hereafter during the term hereby granted, assign, convey, lease, or transfer any of his or their estate, interest, or term or any part thereof in said premises or their appurte- nances, to any person or persons whomsoever (without the consent of said party of the first part, his heirs, etc., in writing, being first obtained), anything hereinbefore contained in any wise to the contrary thereof notwithstanding. COVENANT BUILDING, ETC. See LEASE BUILDING, ETC., post. COVENANT BLINDS, BOARDS, ETC., TO OBSTRUCT VIEW, ETC. And it is hereby covenanted and agreed by and between all said parties to these presents, their executors, etc., as follows (that is to say) : That any of said parties, their executors, etc., shall and may at their pleasure fasten and set up blinds or boards for the purpose of hindering and obstructing the outlook or prospect of the windows, in the part (or side) of the building of the premises hereby conveyed and CONVEYANCES. leased. Provided said blinds or boards shall not obstruct or hinder the light coming through said windows into said building. COVENANT DEATH OF LESSEE. See CONDITIONS OR PROVISOS, above. COVENANT DWELLING IN PREMISES. That said C. D. shall dwell in and personally inhabit and occupy said premises, or a part there- o., with his family, and not close and desert the same during said term. COVENANT ENTRY, ETC. See CONDITIONS OR PROVISOS, RE-BNTRY, ETC., above. COVENANT FIRE CLAUSE. That in case the building hereby leased shall be partially damaged by fire, the same shall be re- paired as speedily as possible by and at the ex- pense of said party of the first part (a proportionate reduction of rent being made for the time of said damaged portion is untenantable). Provided the damage be not caused by the carelessness of the party of the second part, his agents or employees. That in case the damage is so extensive as to render the building untenantable, the rent shall cease until the same is repaired. Provided the damage be not caused by the carelessness of the party of the second part, his agents or employees. If the building be so damaged that the owner shall decide to rebuild, said term shall cease, the premises be surrendered, and the accrued rent be paid up to the time of the fire. COVENANT FIXTURES To BUY. And said parties hereby covenant and agree : That at the expiration of the present lease, or of the renewal thereof, the same be accepted : Said party of the first part shall and will purchase of said party of the second part all the machinery and fixtures that shall have been placed in and upon said premises during the whole time he shall have occupied the same by virtue of this lease, allowing the full valuation at which said machinery and fixtures shall be estimated in said buildings, and not for the purpos-e of removal. In case said parties shall not agree upon such valuation, then the same shall be made by three disinterested persons, one each to be chosen by said parties, and they to choose the third, etc. See AGENCY, ARBITRATION FOKMS, ante. COVENANT IMPROVEMENTS, ETC. Said A. B. hereby covenants with said C. D. that he, the said A. B., shall and will, within next after the date hereof, lay out and expend the sum of in repairing, bettering, and improving said premises, and the buildings, etc. , thereon, as follows : (specifying the particular improvements and repairs, etc.) COVENANT INHABITING PREMISES. See COVENANT DWELLING IN PREMISES, above. COVENANT INSURANCE BY LESSOR, ETC. That said A. B., his executors, administrators, and assigns, shall and will, at his or their own cost and expense, from time to time, sufficiently insure all and every building and tenement, etc., erected and to be erected on the land hereby con- veyed and leased, or any part thereof, from cas- ualty, damage, and loss by fire during the time hereby granted, in some one or more responsible and secure insurance company or companies. That in case said buildings, tenements, etc., or any of them, or any part of them, shall at any time or times during the said term be burned down, destroyed, or damaged by fire, said A. B. shall and will from time to time immediately thereafter rebuild, or sufficiently repair and in- sure the same. COVENANT NOTICE TO DETERMINE LEASE. See CONDITION OR PROVISO, NOTICE, ETC., ante. COVENANT Noxious OR OFFENSIVE OCCUPATION NOT TO PURSUE. That said C. D., his executors, administrators, and assigns, shall not at any time during the con- tinuance of said term permit or suffer any person or persons to follow, in or upon said premises, or any part thereof, the trade of brewer, butcher, distiller, dyer, glue manufacturer, soap boiler, tallow chandler, etc., etc., or any other nauseous, noxious, or offensive occupation whatsoever, without the assent of said A. B., his executors, administrators, or assigns, being first obtained in writing for that purpose. COVENANT PAYING RENT, ETC. See LEASE BUILDING, ETC., above. COVENANT QUIT AT END OF TERM. That said C. D. shall and will at the expiration or other sooner determination of the said term peaceably and quietly surrender and yield up said premises unto said A. B., his heirs and assigns, together with all fixtures and appurtenances, and all other things fastened or standing in and upon the same or any part thereof for the last years of said term. COVENANT RE-ENTRY, ETC. See CONDITIONS OR PROVISOS RE-ENTRY, ETC., above. COVENANT RENEWAL. Thart said A. B. (his executors, etc ), at the cost and expense of said C. D. (his executors, etc.), (when requested by him or them months before the expiration of the term hereby granted,) shall and will grant a further lease of the aforesaid premises for the further term of , to commence from the term hereby granted, at and under the same yearly rent, and containing therein the like agree- ments and covenants as are in these presents contained. Another By Indorsement. That in case said party of the second part shall with the written consent of said party of the first part, indorsed hereon.oron the duplicate hereof, at any time hold over the said premises beyond the period above specified as the termination of this lease, then said party of the second part shall hold said premises upon the same terms and under the same agreements and covenants as are contained in this lease : and no holding over by said party of the second part shall operate to re- new this lease without said written consent. COVENANT R EPAI RS. See COVENANT IMPROVEMENTS, ETC., above. COVENANT SELL ON REQUEST. That in case said C. D., his heirs, executors, administrators, or assigns, shall during said term desire and intend to purchase the premises here- by leased, and shall give notice of such desire and intention in writing during said term unto said A. B., his heirs or assigns, at his or their usual or last place of abode, then said A. B. , his heirs and assigns, shall at the costs and expense of said C. D., his heirs, etc., convey said premises, with the appurtenances and every part thereof unto said C. D.,his heirs, executors, etc., as he or they shall direct, upon the payment by said C. D., his heirs, executors, etc., the sum of , as the con- sideration of said purchase, and also paying to him or them all arrears of rent which shall be then due, etc. COVENANT TAXES PAYMENT OP BY LESSOR. That said A. B., his executors, administrators, and assigns, shall and will from time to time during said term pay ail assessments, dues, rates and taxes whatsoever, when due, that may be as- sessed, charged, imposed, or rated on the prem- ises hereby leased, or any part thereof, and there- from save harmless and keep indemnified said C. D. , his executors, administrators, and assigns, his and their goods, chattels, lands, and tene- ments. COVENANT TAXES AND REPAIRS. Lessee to Deduct Out of "Rent, That said C. D., his executors, administrators, and assigns, shall and may retain out of every CONVEYANCES. year's rent agreed to be paid to said A. B. as aforesaid, so much money as he, the said C. D., shall from time to time, during said term, have paid for the taxes agreed to be paid by said A. B., his heirs, executors, etc. And also for such ad- ditions, amendments, and repairs by him made and done, in and about said premises, by and with the consent and direction of said A. B., his heirs, etc., or without such consent, so that such money be laid out and expended in repairing and supporting said premises or some part thereof. COVENANT UNDEK-LEASE PROHIBITED. That said C. D. , his executors or administrators, shall not at any time during said term assign, set over, under-lease or under-let said premises, or any part thereof, or in any other manner part with the possession or occupation of the same without the special consent or license of said A. B., his heirs or assigns, in writing under his or their hands (and seals; first had and obtained. COVENANT USE OF PREMISES LIMITED. That said premises, and every part thereof, shall during said term of be used only for the following business and purposes, to wit : (describ- ing them). Another. That said premises, nor any part thereof, shall not at any time during said term of , be used as (state what). COVENANT WATER RATE OR TAX, ETC. That said A. B. shall pay the water rate or tax, and keep all plumbing, pipes, drains, etc., etc., in said premises, in repair, and leave the same in as good state and condition as reasonable use and wear thereof will permit. Conclusions in Leases. See Other Conveyances. Signed (and sealed); or, Signed, sealed, and acknowledged; or, Witness our hands (and seals); or, Given under our hands (and seals); or, In witness whereof, we hereunto set our hands, etc. ; or, In witness whereof, the parties to these pres- ents have hereunto set their hands, etc. ; or, In witness -whereof, we have hereunto set our hands (and affixed our seals) (at ), this day of ; or, In witness whereof, we have hereunto set our hands (or subscribed our names', the day and year first (or last) above written ; or, In witness whereof, A. B.,the party of the first part, and C. D., the party of the second part, in their own proper persons have hereunto respec- tively and severally set their hands and seals, this day of (or the day and year first, or last) above written. Signature (and Seals). See DEEDS and other conveyances, ante. Attestation or Witness Clauses. See DEEDS and other conveyances, ante. Acknowledgment of Leases. All instruments for the conveyance of real estate or any interest therein must be recorded in the proper office for the recording of deeds, etc., in order to affect judgment creditors, mortgagees, subsequent purchasers, etc. It is customary to only record leases for years, and not for a shorter period. See GENERAL STATUTES. SHORT FORM LEASES. A. B. leases to C. D. (description of premises), for a term of , upon the payment of . Dated the day of . A. B. Another. I, A. B., doth lease and convey unto C. D. (de- scription of premises], for a term of from date, upon the payment of , as follows : . Witness my hand, this day of . A. B. Another. I, A. B., in consideration of dollars, payable , do hereby lease and demise unto C. D., the following premises (describing them), for a term of from the date hereof. Witness the following signature and seal. A. B. [Setti.\ Another. Know all men by these presents : That I have, this day of , let and rented unto C. D. my house and premises, number , in street, in , with the appurtenances, and the sole and uninterrupted use and occupa- tion thereof for one year, to commence the day of next, at the yearly (of quarterly, or monthly) rent of dollars, payable (in adv- iton). For a term of years, commencing the day of , and ending the day of . At the yearly (quarterly, or monthly) rent of dollars, payable in equrl (quarterly, or monthly) payments, on the first days of (each month, or January, April, July, and October; in each year.* That if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for said party of the first part to re-enter said premises and remove all persons therefrom (said party of the second part waiving notice to quit, or of intention to re-enter). And said party of the second part covenants that at the expiration of said term, or other de- termination of this lease, to quit and surrender* said premises to said party of the first part, or his assigns, in as good a state and condition as reasonable use and wear thereof will permit, damage by the elements excepted. And said party of the first part covenants that on paying the said yearly (quarterly, or monthly) rent, and performing the covenants aforesaid, said party of the second part shall and may peace- ably and quietly have, hold, and enjoy said leased premises for the term aforesaid. In witness whereof, said parties have inter- changeably set their hands (and seals) the day and year first above written. A. B. Executed in presence) C. D. of W. T., N. S. j Lease General Form. This (agreement, conveyance, indenture, or') lease, made this day of , by A. B. , of , of the first part, and C. D., of , of the second part, witnesseth : That the said party of the first part, in consid- eration of the rents, covenants and stipulations hereinafter mentioned, and hereby agreed to be paid, kept and performed by the said party of the second part, his executors, administrators and assigns, has leased, and by these presents does lease, to the said party of the second part the fol- lowing described premises (describe t/te house, as of brick, or stone, or uiooti, number of stories), lot number , in block number , in the city of For and during the term of , to commence on the day of , at the annual rent of , payable in four equal quarterly payments, begin- ning three months from the date hereof. Any failure to pay each payment of rent when due, to produce a forfeiture of this lease, if so de- termined by said lessor or his successors. The lease of said tenement or any part of it is not assignable, nor is said tenement or any part of it to be underlet, without the written consent of said lessor, under penalty of forfeiture. And it is hereby covenanted, that, at the expi- ration of this lease, the said tenement and prem- ises are to be surrendered to said lessor, his heirs, assigns, or successors, in the condition received, only excepting its natural wear and decay, or the effects of accidental fire. All repairs deemed necessary by said lessee to be made at his expense. All fixtures shall be bound for the rent. The said lessee, and all holding under him, hereby engages to pay the rent above reserved, and double rent for every day when he or any one else in his name shall hold on to the whole or any part of said tenement, after the expiration of this lease, or of its forfeiture for non-payment of rent, etc. This tenement and premises to be kept free of any nuisance in or adjacant thereto, at the ex- pense of said lessee. A. B. ;.W/. C. D. f&a/.j Executed in presence of } W. T.,N. S. | Lease General Form With Wiiver, etc. This lease, made this day of , by A. B. (of ), of the first part, to C.-D. (of ), of the second part, witnesseth : That the said party of the first part, in consid- CONVEYANCES. eration of the rents, covenants and agreements, of the said party of the second part, hereinafter set forth, does by these presents grant, lease and rent to the said party of the second part the fol- lowing described property, situated in the county of , and State of , to wit: (describing it). To have and to hold the same unto the said party of the second part, from the day of to the day of . And the said party of the second part, in con- sideration of the leasing the premises as above set forth, covenants and agrees with the said party of the first part to pay the said party of the first part, his heirs or assigns, as rent for the same, the rent or sum of dollars, in payments, as follows, to wit : (giving time, place, amount, and manner of payment). (Hereby waiving the benefit of the exemption, valua- tion and appraisement laws of said State of , to secure the payment thereof.) The said party of the second part further cove- nants with said party of the first part, that at the expiration of the time mentioned in this lease to give peaceable possession of the said premises to oaid party of the first part, in as good a condition as they now are, the usual wear, inevitable acci- dents and loss by fire excepted, and will not make or suffer any waste thereof, nor lease, nor under- let, nor permit any other person or persons to occupy the same, or make or suffer to be made any alteration therein without the consent of said party of the first part, in writing, having been first obtained, and not use or occupy said premi- ses for any business or thing deemed extra haz- ardous on account of fire : and that upon the non-payment of the rent as aforesaid the said party may, at his election, either distrain for said rent due, or declare this lease at an end, and re- coyer the same as if held by forcible detainer, the said party of the second part hereby waiving any notice of such election or any demand for the possession of said premises. The covenants herein shall extend to and be binding upon the heirs, executors, and adminis- trators of the parties to this lease. In witness whereof, the said parties have here- unto set their hands, the day and year first above written. A. B. [Witnesses.] C. D. For form of ACKNOWLEDGMENT, see that title. Lease General Form. This (agreement, conveyance, indenture, or) lease, made this day of , by A. B., of , of the first part, to C. D., of , of the second part, witnesseth : That the said party of the first part, for and in consideration of the rents, covenants and agree- ments hereinafter mentioned, reserved and con- tained, on the part and behalf of the said party of the second part, his executors, adminis- trators and assigns, to be paid, kept, and per- formed, has and by these presents does convey and lease unto the said party of the second part, and his executors, administrators and assigns, all (describe the premises). T.o have and to hold the said above-mentioned and described premises, with the appurtenances, unto the said party of the second part, his ex- ecutors, administrators and assigns, from the day of , for, during and until the full end and term of thence next ensuing ; and fully to be complete and ended. Yielding and paying therefore unto the said party of the first part, his heirs or assigns, yearly, and every year during the said term hereby granted, the yearly rent or sum of , in equal quarter-yearly payments, to wit : (naming- the dates of payments), in each and every of the said years ; Provided always, nevertheless, that if the yearly rent above reserved, or any part thereof, shall be behind or unpaid on any day of payment whereon the same ought to be paid as aforesaid ; or if de- fault shall be made in any of the covenants herein contained, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept and performed, then and from thenceforth it shall and may be lawful for the said party of the first part, his heirs or as- 21 signs, to re-enter into and upon the said demised premises, and every part thereof, and remove all persons therefrom, and the same to have again, repossess and enjoy, as in his or their first and former estate, anything hereinbefore contained to the contrary thereof in anywise notwithstanding. And the said party of the second part, for himself and his heirs, executors and administra- tors, does covenant and agree, to and with the said party of the first part, his heirs and assigns, by these presents, that the said party of the sec- ond part, his executors, administrators, or assigns, shall and will yearly, and every year dur- ing the said term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs or assigns, the said yearly* rent above reserved, on the days and in manner limited and prescribed as aforesaid, for the pay- ment thereof, without any deduction, fraud, or delay, according to the true intent and meaning of these presents. And that the said party of the second part, his executors, administrators, or assigns, shall and will, at their own costs and charges, bear, pay, and discharge all such taxes, duties, and assess- ments whatsoever, as shall or may, during the said term hereby granted, be charged, assessed, or imposed upon the said demised premises. And that on the last day of the said term, or other sooner determination of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall and will peaceably and quietly leave, surrender and yield up unto the said party of the first part, his heirs or assigns, all and singular the said demised premises. And the said party of the first part, for himself and his heirs, executors, and administrators, does covenant and agree to and with the said party of the second part, his executors, adminis- trators, and assigns, by these presents, that the said party of the second part, his executors, administrators, or assigns, paying the said yearly rent above reserved, and performing the cove- nants and agreements aforesaid on his and their part, the said party of the second part, his exec- utors, administrators, and assigns, shall and may at all times during the said term hereby granted, peaceably and quietly have, hold, and enjoy the said demised premises, without any obstruction, suit, trouble or hindrance of or from the said party of the first part, his heirs or assigns, or any other person or persons whomsoever. In witness whereof, the said parties have here- unto set their hands (and seals). A. B. [.Sim/.] Executed in presence ) C. D. [&a/.J of I Liease General Form. Water-Rate or Tax, Fire Clause, etc. This (agreement, conveyance, indenture, or) lease, made by A. B., of , party of the first part, to C. D., of , party of the second part, witnes- seth : That the said party of the first part has agreed to, and hereby does let, and the said party of the second part has agreed to, and hereby does take, the following described premises (describe the premises) for the term of , to commence the day of , and to end the day of , to be occupied (here describe the intended occupation) and not otherwise. And the said party of the second part hereby covenants and agrees to pay unto the said party of the first part the annual rent or sum of dollars, payable (here set forth the times and terms of the payments). That said party of the second part shall pay the water rate or tax ; keep the plumbing work, water-pipes, glass, and the premises generally in repair, and will surrender them at the expira- tion of the said term, in as good state and con- dition as reasonable use and wear thereof will permit. That said party of the second part shall not as- sign, let, or underlet the whole or any part of the said premises, nor make any alteration therein without the written consent of the said party of the first part, under the penalty of forfeiture and CONVEYANCES. damages ; that he will not occupy the said prem- ises, nor permit the same to be occupied for any business deemed extra-hazardous without the like consent, under the like penalty. That said party of the second part shall permit the said party of the first part, or his agent, to show the premises to persons wishing to hire or purchase, and three months next preceding the expiration of the term will permit the usual notices of " to let," or " for sale," to be placed upon the windows, walls, or doors of said prem- ises, and remain thereon without hindrance or molestation. That if default be made in any of the covenants herein contained on the part of the party of the second part, or if the said premises or any part thereof shall become vacant during the said term, the said party of the first part may re-enter the same, either by force or otherwise, without being liable to any prosecution therefor, and re- let the said premises or any part thereof in one or more parcels, as the agent of the said party of the second part, and receive the rent thereof, ap- plying the same, first to the payment of such expense as he may be put to in re-entering, and then to the payment of the rent due by these presents ; and the balance (if any) to be paid over to the said party of the second part; and, in case of deficiency, said party of the second part will pay the same. That said party of the second part hereby fur- ther covenants that if any default be made in the payment of the said rent or any part thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring, and the relation of landlord and tenant, at the option of the said party of the first part, shall wholly cease and determine; and the said party of the first part shall and may re-enter the said premises, and remove all persons therefrom ; and the said party of the second part hereby expressly waive the service of any notice in writing of in- tention to re-enter, as provided for in the section of an act entitled "An act," etc. (reciting the title of the act), Approved (or Passed ), etc. And it is further agreed between the parties to these presents, that, in case the building hereby leased shall be partially damaged by fire, the same shall be repaired as speedily as possible by the party of the first part ; that, in case the dam- age shall be so extensive as to render the building untenantable, the rent shall cease until the same be repaired ; provided the damage be not caused by the carelessness or negligence of the party of the second part, or his agents or servants. If the building be so damaged that the owner shall decide to rebuild, the term shall cease, the premises be surrendered, and the accrued rent be paid up to the time of the fire. In consideration of the letting of the premises above-mentioned to the above named C. D., and of the sum of one dollar to him paid by the said party of the first part, the said party of the sec- ond part does hereby covenant and agree to and with the party of the first part above-named, and his legal representatives, that if default shall at any time be made by the said party of the sec- ond part in the payment of the rent and perform- ance of the covenants above contained on his part to be paid and performed, that he will well and truly pay the said rent or any arrears there- of, that may remain due unto the said party of the first part and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said party of the first part. 'Witness our hands (and seals) this day of . A. B. (Sean Executed in presence of \ C. D. [Sea/.] (Signature of witnesses.) J I^ense Ceiieral Form. This (agreement, conveyance, indenture, or) lease, made and entered into on the day of , by and between A. B.,of , party of the first part, and C. D., of , party of the second part, wit- oe*aeth: That the said party of the first part, in consid- eration of the rents reserved, and the covenants hereinafter contained, does hereby lease unto the said party of the second part (here describe the premises). To have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging, unto the said party of the sec- ond part, and his executors, administrators and assigns, for and during the full end and term of , commencing on the day of , and ending on the day of , under and subject to the stipulations hereinafter contained, the said party of the second part yielding and paying to the said party of the first part, for the said prem- ises, .the annual rent of dollars, payable in equal payments, as follows : on the during said term ; which rent the said party of the second part, for himself and his executors, administrators and assigns, covenants well and truly to pay, at the times aforesaid. And the said party of the second part covenants and agrees: That if the rent aforesaid should at any time remain due and unpaid, the same shall bear inter- est at the rate of per cent, per annum, from the time it so becomes due until paid. That it shall be lawful for the said party of the first part, and those having freehold estate in the premises, at reasonable terms, to enter into and upon the same, to examine the condition thereof'. That the said party of the second part and his legal representatives shall and will, at the expira- tion of this lease, whether by limitation or for- feiture, peaceably yield up to the said party of the first part, or his 'sgal representatives, the said premises, in the condition received, only except- ing natural wear and decay, and the effects of fire; That the said party of the second part, for and during all the time that he or any one else in his name shall hold over the premises after the expi- ration of this lease, in either of said ways, shall and will pay to said party of the first part double the rent hereinbefore reserved ; That any failure to pay the rent hereinbefore reserved, when due and within days after a demand of the same, shall produce an absolute forfeiture of this lease, if so determined by said party of the first part, or his legal representa- tives ; That this lease shall not be assigned, nor the said premises, or any part thereof, underlet, with- out the written consent of the said party of the first part, or his legal representatives, under pen- alty of forfeiture ; That all repairs of a temporary character, deemed necessary by said party of the second part, shall be made at his own expense, with the consent of the said party of the first part, or his legal representatives, and not otherwise. Provided always, that if the said party of the second part, or his legal representatives, shall fail to pay the rent hereinbefore reserved, for the space of days after the same shall have be- come due, or shall fail to perform any of the cov- enants hereinbefore entered into on his and their part, then the said party of the first part shall be at liberty to declare this lease forfeited, by serving a written notice to that effect on the said party of the second part, or his legal representatives, and to re-enter upon and take possession of the demised premises, free from any claim of the les see or any one claiming under him ; and all es- tate herein granted shall, upon service of such notice, forthwith cease, and said lessor, his heirs, legal representatives or assigns, shall be forth- with entitled to the possession of the demised premises without any further proceeding at law or otherwise, to recover possession thereof. And the said party of the first party covenants and agrees with the said party of the second part, and his legal representatives, that, the covenants herein contained being faithfully performed by the said party of the second par^, he shall peace- ably hold and enjoy the said demised premises, during the term aforesaid, without hindrance or interruption by the said lessor or any other person. CONVEYANCES. In witness whereof, the said parties have here- unto set their hands (and affixed their seals), the day and year first above written. A. B. [Seal.] Executed in presence of C. D. \Seat.\ Lease General Form. This (agreement, conveyance, indenture, or) lease, made this day of , by and between A. B., of the of , in the county and State of , party of the first part, and C. D.,of , party of th- second part, witnesseth : That the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, his execu- tors, administrators and assigns, has leased to the said party of the second part all those premises situate, lying and being in the township of , county of , and State of , known and de- scribed as follows, to wit : (describe the premises in a manner to identify by situation, metes, and bounds, etc.) To have and to hold the said above-described premises, with the appurtenances, unto the said party of the second part, and his executors, ad- ministrators and assigns, from the day of , for, during, and until the day of , he paying rent therefor as hereafter stated. And the said party of the second part, in con- sideration of the leasing of the premises afore- said by the said part of the first part to the said party of the second part, does covenant and agree with the said party of the first part, and his heirs, executors, administrators and assigns, to pay the said party of the first part, as rent for the said demised premises, the sum of dollars, annual rent, payable quarterly, in four equal quarterly payments, the first payment to be due and made in three months from the date of this lease, pay- able at . And the said party of the second part further covenants with the said party of the first part, that at the expiration of the time in this lease mentioned, he will yield up the said leased premises to the said party of the first part in as good condition as when the same were entered upon by the said party of the second part, loss by fire or inevitable accident and ordinary wear ex- cepted. It is further agreed by the Baid party of the sec- ond part, that neither he nor his legal representa- tives will underlet said premises or any part thereof, or assign this lease without the written assent of said party of the first part, first had and obtained thereto. It is expressly understood and agreed by and between the parties aforesaid : That if the rent above reserved, or any part thereof, shall be behind or unpaid, on tne day and at the place of payment, whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein contained, to be kept by the said party of the second part, his executors, administrators, and assigns, it shall and may be lawful for the said party of the first part, his heirs, executors, administrators, agent, attorney, or assigns, at his or their elec- tion, to declare said term ended, and the said leased premises, or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any other person or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said prem- ises again to repossess and enjoy, as in his or their first and former estate ; That it shall be the duty of the said party of the second part, his executors, administrators, or as- signs, to be and appear at the said place above specified, for the payment of said rent, and then and there tender and pay the same as the same shall fall due from time to time, as above, to the said party of the first part, or his agent or as- signs ; or in his or their absence, if the said party of the second part shall offer to pay the same then and there, such offer shall prevent said for- feiture. That i shall not be necessary in any event for the party of the first part or his assign* to go on or near the said leased premises to deinana said rent, or elsewhere than at the place aforesaid. That in the event of any rent being due and unpaid, whether before or after such forfeiture declared, to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not, and the said party of the second part, in that case, hereby waives all legal rights which he now has or may have to hold or retain any such property, under any exemption laws now in force in thi State, or in any other way. That it is intended hereby to give to the said party of the first part and his heirs, executors, administrators, and assigns, a valid and first lien upon any and all the goods, chattels, or other property belonging to the said party of the second part, as security for the payment of said rent in manner aforesaid, anything hereinbefore con- tained to the contrary notwithstanding. That if at any time said term shall be ended at such election of said party of the first part, or his heirs, executors, administrators, or assigns, as aforesaid, or in any other way, the said party of the second part, for himself and his executors, administrators, and assigns, does hereby cov;- nant, promise, and agree to surrender and deliv ;r up said above-described premises and property, peaceably, to said party of the first part, or his heirs, executors, administrators, and assigns, immediately upon the determination of said term as aforesaid ; and if he shall remain in the pos- session of the same days after notice of such default, or after the termination of this lease, in any of the ways above named, he shall be deem d guilty of a forcible detainer of said demised premises, and shall be subject to all the conditioi is and provisions above named, and to eviction a\ d removal, forcibly or otherwise, with or withcj it process of law, as above stated. And it is further covenanted and agreed by and between the parties, that the party of the secot d part shall pay and discharge all costs and at- torney's fees and expenses that shall arise frcu n enforcing the covenants of this indenture by \\ e party of the first part. In witness whereof, the said parties have here- unto set their hands (and seals), the day and ye;ir first above written. A. B. [&/.] Executed in presence of C. D. [Seal.\ L.ease General Form. This (agreement, conveyance, indenture, or) lease, made this day of , between A. B., of the city of , in county, and State of , party of the first part, and C. D.,of , party of the second part, witnesseth : That the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, or his ex- ecutors, administrators and assigns, has con- veyed and leased to the said party of the second part all those premises situate, lying and being in the city of , in county of , and State of , and known and described as follows, to wit (here describe the premises). To have and to hold the said above-described premises, with the appurtenances, unto the said party of the second part, and his executors, ad- ministrators and assigns, from the day of , for, during, and until the day of , the said party of the second part paying rent therefor, as hereinafter stated. And the said party of the second part, in con- sideration of the leasing the premises aforesaid, by the said party of the first part to the said party of the second part, does covenant and agree with the said party of the first part, and his heirs, executors, administrators and assigns : That he will pay the said party of the first part, at the house (office, or store) of the said party of the first part, number , in street, , or at the house or office of his assigns, as rent for the said leased premises, the sum of (state the annual rent), payable as follows : (here state the amounts, times and terms of the payments). CONVEYANCES. That said party of the sacond part shall and will pay, or cause to be paid, promptly, as soon as the same becomes due, all assessments for water-rents that may be levied upon said de- mised premises, during the continuance of this lease, by the board of water commissioners of the city of , and save the said premises and the said party of the first part harmless therefrom. That he will keep said premises in a clean and healthy condition, in accordance with the ordi- nances of the city and the direction of the sewer- age commissioners. That in case of delay in payment of any water- rent levied upon said premises during said term, to pay said party of the first part, as liquidated damages for such breach of covenant, double the sum of such rent so assessed upon said premises as aforesaid. That at the expiration of the time in this lease mentioned he will yield up the said demised premises to the said party of the first part in as good condition as when the same were entered upon by the said party of the second part, loss by fire or inevitable accident and ordinary wear excepted. It is further agreed by the said party of the sec- ond part, that neither he nor his legal represent- atives will underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part first had and obtained thereto. It is expressly understood and agreed, by and between the parties aforesaid : That if the rent above reserved, or any part thereof, shall be behind or unpaid on the day and at the place of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein con- tained, to be kept by the said party of the second part, or his executors, administrators and as- signs,"it shall and maybe lawful for the said party of the first part, or his heirs, executors, adminis- trators, agent, attorney, or assigns, at his or their election, to declare said term ended, and the said demised premises, or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any other per- son or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy as in his or their first and former estate ; and it shall be the duty of the said party of the second part, his executors, administrators or assigns, to be and appear at the said place above specified for the payment of said rent, and then and there tender and pay the same as the same shall fall due from time to time, as above, to the said party of the first part, or his agent or assigns ; or in his or their absence, if the party of the second part or his legal representatives shall offer to pay the same then and there, such offer shall prevent such forfeiture. That it shall not be necessary in any event for the party of the first part, or his assigns, to go on or near the said demised premises to demand said rent, or elsewhere than at the place aforesaid. That in the event of any rent being due and unpaid, whether before or after such forfeiture declared, to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not, and the said party of the second part, in that case, hereby waives all legal rights which he may have to hold or retain any such property under any exemption laws now in force in this State, or in any other way. That it is intended hereby to give to the said party of the first 1 part, and his heirs, executors, administrators and assigns, a valid and first lien upon any and all the goods, chattels, or other property belonging to the said party of the sec- ond part, as security for the payment of said rent, in manner aforesaid, anything hereinbefore con- tained to the contrary notwithstanding. That if at any time said term shall be ended at such election ef said party of the first part, or his heirs, executors, administrators, Of assigns, as aforesaid, or in any other way, the said party of the second part, for himself, and his executors, administrators, and assigns, does hereby cove- nant, promise and agree to surrender and deliver up said above-described premises and property, peaceably to the said party of the first part, or his heirs, executors, administrators, and assigns, immediately upon the determination of said term as aforesaid ; and if he shall remain in the pos- session of the same days after notice of such default, or after the termination of this lease, in any of the ways above named, he shall be deemed guilty of a forcible detainer of said demised premises under the statute, and shall be subject) to all the conditions and provisions above named,' and to eviction and removal, forcibly or other- wise, with or without process of law, as above stated ; and in order to enforce a forfeiture of this lease for non-payment of rent when due, no demand for rent when due shall be required, any demand being hereby expressly waived. And it is further covenanted and agreed by and between the parties, that the party of the second part shall pay and discharge all costs and at- torney's fees and expenses that shall arise from enforcing the covenants of this indenture by the party of the first part. In witness whereof, the said parties have here- unto set their hands and seals the day and year first above written. A. B. LSYw/.l Executed in presence of C. D. [i'c/.j Lease By Attorney. This (agreement, conveyance, indenture, or) lease, made this day of , between A. B. , of , etc., by A. A., his attorney, of the one part, and C. D., of , of the other part, witnesseth: Whereas the said A. B.,bya certain writing, or letter of attorney, under his hand and seal, duly executed, dated the day of , amongst other things therein contained, did authorize the said A. A., in the name of him, the said A. B., and on his behalf, to execute leases of such part of his lands, tenements, and hereditaments, in , as by the said A. A. should be thought fit to be leased : Now this indenture witnesseth: That for and in consideration of the sum of , to the said A. B. paid by the said C. D., the receipt of which is hereby acknowledged, he, the said A. B., by his said attorney, does lease unto the said C. D. the following described premises (describing them). To have and to hold, etc. Yielding and paying, etc. And the said C. D. covenants with the said A. B. , his heirs, etc., to pay the rent, etc. And the said A. B., by his said attorney, for himself, his heirs, executors, administrators, and assigns, covenants with said C. D., etc. See CONTRACTS, DEEDS, ante. Lease Building-Lease. With -various Special Clauses. This (agreement, conveyance, indenture, or) lease, made this day of , between A. B., of , of the one part, and C. D., of , of the other part, witnesseth : That the said A. B.,for and in consideration of the covenants and agreements, hereinafter reserved and contained, on the part of the said C. D., his executors, etc., to be done and per- formed, does lease unto the said C. D., his exec- utors, etc., all that piece or parcel of ground, 1 situate in , containing in breadth on the north side thereof , and in depth on the east side thereof , be the same more or less, together with the tenements and buildings thereon, which the said C. D. shall have full liberty to pull down, and to convert to his own use, which said piece or parcel of ground abuts north on, aforesaid ; east, etc., and is more fully delineated and described in the plan or ground-plot thereof, in the margin of these presents, together with all buildings to be erected thereon, and all ways, easements and appurtenances whatsoever, be- longing to the said premises, or any part or par- cel thereof: CONVEYANCES. Vo have and to hold the said premises unto the said C. D., his executors, etc., from the day of , last past before the date hereof, for and during the full end and term of years from thence next ensuing. Yielding and paying therefor yearly, for and during the said term, unto the said A. B., his heirs and assigns, the yearly rent or sum of , by hall-yearly payments, on the day of , and day of in each year, by equal por- tions, the first payment thereof to be made on ; the said several rents to be paid and pay- able, from time to time during the said term, free and clear of all charges, assessments, and payments whatsoever, assessed or imposed upon tne said premises, or any part thereof, in anywise whatsoever, during the continuance of said term. To BUILD AND REPAIR, ETC. That said C. D., his executors, administrators, or assigns, shall and will, before the expiration of the first year of the said term, at his and their own proper costs and charges, erect, build, and complete, in a workmanlike manner one or more good and substantial brick buildings, upon some part of the ground hereby leased, and shall and will lay out and expend therein the sum of or upwards; That he, the said C. D., his executors, etc., shall and will, from time to time, and at all times from and after the said buildings on the said ground shall be respectively completed and fin- ished, during the remainder of the said term, when and as often as need shall require, at his and their own proper costs and charges, well and sufficiently repair, maintain and keep the said buildings, and all the pavements, sinks, and drains thereunto belonging. To REPAIR. And that the said C. D., his executors, etc., shall and will, within three months next after every such notice or warning shall be given or left, at his and their own proper costs and charges, well and sufficiently repair and amend all and every the defects, whereof such notice or warn- ing shall be so given or left, as aforesaid. To INSURE. That said C. D., his executors, etc., shall and will, at his and their own proper costs and charges, from time to time, sufficiently insure all and every the buildings, which shall be erected upon the said piece of ground hereby demised, or any part thereof, from casualties by fires dur- ing the then remainder of the said term in some one of the public offices kept for that purpose in , and in case the said buildings or any part thereof shall at any time or times during the said term be destroyed or damaged by fire, shall and will, immediately afterwards, rebuild, or well and sufficiently repair the same. THAT LESSOR MAY ENTER TO MAKE AN INVENTORY, ETC. Said A. B. , his heirs and assigns, with workmen or without, to enter upon the said premises, and every part thereof, at seasonable and convenient times in the daytime, as well at any time or times during the last years of the said term, to make an inventory or schedule of the several fixtures and things then standing and being in and upon the said premises, which are to be left at the end of the said term to and for the use of the said A. B., his heirs and assigns, pursuant to the cove- nant hereinbefore contained, as also twice or oftener in every year during the said term to view and examine the defects and want of repairs of the said premises, and to repair and amend the same. NOT TO CARRY ON ANY OFFENSIVE TRADES. That said C. D., his executors, etc., shall not nor will during the said term permit or suffer any person or persons to exercise, or carry on in and by the said premises, or any part thereof, any trade or business which may be nauseous or offensive, or grow to the annoyance, prejudice or disturbance of any of the other tenements of the said A. B. , near adjoining thereto. To PAY THE RENT, TAXES, ETC. That said C. P., his heirs, executors, adminis- trators, and assigns, shall and will, during the said term, well and truly pay, or cause to be paid unto the said A. B.. his heirs and assigns, the said yearly rent or sum of , on the several days and times, and in manner hereinafter ap- pointed for payment thereof, without making any abatement thereof, for or in respect of any taxes, duties, or impositions whatsoever, assessed or imposed upon the said premises, or any part thereof, during the said term ; all which taxes, duties, or impositions, he, the said C. D., his ex- ecutors, administrators, or assigns, shall and will pay and discharge, and therefrom save harmless and keep indemnified the said A. B., his heirs and assigns. RE-ENTRY ON NON-PAYMENT OF RENT, ETC. That if the said yearly rent or sum of here- by reserved, or any part thereof, shall be behind and unpaid, for the space of days next after either of the said days of payment (being lawfully demanded), or if the said C. D., his executors, etc., shall not well and truly perform, fulfil and keep all and every the covenants, conditions and agree- ments, in these presents expressed and con- tained, on his and their part and behalf to be performed and kept, according to the true intent and meaning thereof, then it shall and may be lawful to and for the said A. B., his heirs and as- signs, to re-enter into and upon the said leased premises, or any part thereof, in the name of the whole, and the same to repossess and enjoy, as in his and their first and former estate, and from thence utterly to expel the said C. D., his execu- tors, administrators or assigns, and all other ten- ants and occupiers of the said premises. That from and after such re-entry made, this present lease, and every clause, article and thing herein contained, on the lessor's part and behalf, from thenceforth to be done and performed, shall cease, determine, and be utterly void, to all in- tents and purposes whatsoever, anything herein- before contained to the contrary notwithstanding. In witness whereof, etc. To YIELD UP QUIETLY, ETC. That said C. D., his executors, etc., shall and will, at the expiration or other sooner determina- tion of the said term, peaceably and quietly sur- render and yield up unto the said A. B., his heirs and assigns, together with all its fixtures and ap- purtenances, and all other things which shall be in anywise fastened, and standing in and upon the said premises, or any part thereof, within the last years of the said term. L,ease Certificate. Landlord' ' s Agreement. This is to certify that I have, this day of , let and rented unto C. D. my house and tot, known as number , in street, in the of , with the appurtenances, and the sole and uninterrupted use and occupation thereof, for one year, to commence the day of next, at the yearly rent of dollars, payable (monthly er quarterly) (add, if agreed to, with all taxes and assess- ments thereon). A. B. tease Cert i ficate. Tenant' s Agreement. This is to certify that I have hired and taken from A. B. his house and lot, known as number , in street, in the of , with the ap- purtenances, for the term of one year, to com- mence the day of next, at the yearly rent of dollars, payable quarterly. (Insert tke clause in relation, to ta.fes, if necessary.} And I do hereby promise to make punctual pay- ment of the rent in manner aforesaid, except in case the premises become untenantable from fire or any other cause, when the rent is to cease ; And I do further promise to quit and surrender the premises at the expiration of the term in as good state and condition as reasonable use and wear thereof will permit, damages by the ele- ments excepted. Given under my hand (and seal), this day of . In presence of ) G. H. CONVEYANCES. Lease Cert ifieate. Landlord's Agreement. This is to certify that I, the undersigned, have, this day of , let and rented to C. D. the following premises, situated in , in county, and State of , to wit: (describing the premises), together with the appurtenances, and the sole and uninterrupted use and occupation thereof: For a term of(gk//.] Signed, sealed, and delivered ) C. D. \Seal.) in presence of j I.oao II abend 11 in. See VARIOUS CLAUSES, above. Lease House. Lease of a. House, -with Various Clauses. This (agreement, conveyance, indenture, or) lease, made and agreed on, this day of , be- tween A. B., of , of the one part, and C. D., of , of the other part, witnesseth : That for and in consideration of the provisos and agreements hereinafter mentioned, and which on the part and behalf of the said C. D., his executors, administrators, and assigns, are to be done and performed, he, the said A. B., does lease, etc., unto the said C. D., his executors, ad- ministrators, and assigns, all that real property situate in S. (known by the name of ), now (or lately) in the occupation of E. F., together with all the appurtenant; s whatsoever, to the same belonging or appertaining. To have and to hold the said premises, hereby demised, with the appurtenances, unto the said C D., his executors, administrators, and assigns, from the day of the date hereof, for and during the full term of next ensuing. Yielding and paying therefor (monthly, quarterly, or yearly), on every first day of , during the said term unto the said A. B. , his heirs or assigns, the rent of dollars. ENTRY ON NON-PAYMENT OR ASSIGNMENT, ETC. That if said rents, or either of them, shall be unpaid for the space of twenty days next after either of the said days of payment, or if the said C. D., his executors, or administrators, shall as- sign over this indenture, or the premises here- by leased, or-any part thereof, to any person or persons whomsoever, without the consent of the said A. B., his heirs or assigns, first had and ob- tained in writing, for that purpose, then, and in either of the said cases, it shall be lawful for the said A. B., his heirs and assigns, into the said premises hereby leased, or any part thereof in the name of the whole, to re-enter and to have again, repossess, and enjoy the same, as of his and their first and former estate, anything herein contained to the contrary notwithstanding. ENTRY LESSOR MAY TO VIEW, ETC. That said A. B. , his executors, etc., or any of them, with workmen or others, or without, twice in every year during the continuance of this de- mise, at seasonable times in the daytime, may enter upon the said leased premises, or any part thereof, and view the state and condition of the same-, and of all defects, and want of repairs, then and there found, to give or leave notice or warning in writing, at and upon the said premises, to said C. D., for the repairing and amending the same within the space of , then next following, in which said space or time, etc., after every or any such notice or warning, he, the said A. B., for himself, his executors, etc., does hereby covenant, etc., to and with the said C. D., his executors, etc., well and sufficiently to repair and amend the defects and want of repa- ration, so to be found as aforesaid (except as here- inbefore excepted). QUIET ENJOYMENT COVENANT FOR. That he, the said C. D., his executors, etc., pay- ing the said rent, and performing and keep- ing all and singular the covenants and agreements herein contained, on his and their part to be ful- filled and kept, shall and may peaceably and quietly use, occupy, and enjoy the said premises hereby leased, with the appurtenances, and CONVEYANCES. 327 by any other person or persons whatsoever, law- fully claiming under them, or any, or either of them. QUIT LESSER MAY GIVB NOTICE, ETC. That in case said C. D., his executors or ad- ministrators, shall be desirous to quit and leave the said premises at the expiration of of the said term of hereby granted, and shall give notice in writing under his or their hands and seals, of such intention, unto the said C. D., or his heirs, months before the end and expira- tion of the said term of , then and at the end of such of the said term of hereby granted, this present lease, and the term hereby granted, shall cease, determine, and be utterly void, anything herein contained to the contrary notwithstanding. In witness whereof, etc POSSESSION COVENANT TO DELIVER. That at the end of the said term, or other sooner determination of this present demise, unto the said A. B., his heirs or assigns, shall and will peaceably and quietly leave and yield up, except as hereinbefore excepted. RENT COVENANT TO PAY. And the said C. D. does hereby for himself, his heirs, executors, administrators, and assigns, covenant and agree that he (said C. D.), his exec- utors, administrators, or assigns, shall and will, well and truly pay, or cause to be paid, unto the said A. B., his heirs and assigns, the said yearly rent of , in the manner hereinbefore limited and appointed, according to the reservation there- of and the true intent and meaning of these pres- ents (except the premises or some part thereof, shall hapnen to be destroyed or damaged by reason of un- avoidable casualty). REPAIR COVENANT TO. And also, that he, the said C. D., his executors, administrators, or assigns, or some of them, shall and will at his, their, or some of their proper costs and charges, from time to time, and at all times hereafter during the said term, well and sufficiently repair, maintain, and keep the said premises, with the appurtenances hereinbefore demised, and every part and parcel thereof, with all and all manner of needful and necessary re- parations whatsoever, and that, as often as need or occasion shall require, unavoidable casualties only excepted. TAXES LESSEE TO PAY. That he, the said C. D., his executors, etc., shall and will, at all times hereafter during the said term hereby granted, pay and discharge all as- sessments, charges, duties, and taxes, which shall be assessed upon the said premises or any part thereof. Lease House and Lands. With Exceptions and Special Covenants, etc. This (agreement, conveyance, indenture, or} lease, made, etc., between A. B., of , of the one part, and C. D., of , of the other part, wit- nesseth : That for and in consideration of the covenants and agreements, hereinafter reserved and con- tained, and which on the part and behalf of the said C. D., his executors, administrators, and as- signs, are to be done and performed, he, the said A. F., does lease and convey unto the said C. D., his executors, administrators, and assigns, all that real property, tenements, and farm-house (iate in the possession of E. F.), with the appurte- nances, situate in , together with all and sin- gular the yards, gardens, orchards, outhouses, thereunto belonging, and also all these several closes, pieces or parcels of arable land, meadow, pasture, wood, and wood ground, containing by estimation acres (be they more or less, lying and being in , to the said messuage, tenement, or farm- house belonging, and therewith held, used, occupied, and enjoyed, as part and parcel thereof). VARIOUS CLAUSES. FALLOW AND UNSOWN, ETC. To LET LAND LIE EVERY THIRD YEAR, ETC. That he, the said C. D., his heirs, executors, administrators, or assigns, shall not, nor will, at any time during this present lease, crop or sow above two years together, any of the arable lands and closes hereby leased, but every third year permit the same to lie fallow and unsown. And that it shall be lawful for the said C. D., his heirs and assigns, with servants, and the necessary materials, at day next preceding the expiration of this present lease, to enter upon such enclosure and grounds, being a part of the said premises as then ought to lie fallow and un- sown, and the same to plough, fallow and manure, and to have the grass, herbage, sheep- walks, and sheep commons thereof, and also to enter upon the dung which shall then be in the yard or yards ( and at the same time to have the dung in the henhouse, and also to have some convenient place for the lodging of their servants and cattle, without extinguishment of any of the yearly rent hereinbefore reserved, and without giving or making any allowance or satisfaction for the same. HAISENDUM AND RCDDENDUM. To have and to hold the said premises, with their appurtenances (excepf as before excepled), unto the said C. D., his executors, administrators, and assigns, from the day ol the date hereof, for and during the full term of years next ensu- ing, and fully to be complete and ended ; Yielding and paying therefor yearly, during the said term, unto the said A. B , his heirs or as- signs, the yearly rent or sum of , on the first day of , in every year during the said term. QUIET ENJOYMENT COVENANT FOR. That it shall and may be lawful to and for the said C. D., his executors, etc., performing the covenants and agreements, hereinbefore men- tioned, peaceably and quietly, to hold and enjoy all and singular the said premises, with the ap- purtenances, during the said term of years hereby leased, without any molestation whatso- ever, by him, the said A. B., his heirs or assigns, by any other person or persons lawfully claiming from or under him or them. QUIT POSSESSION AT THE END OP THE TERM. That at the expiration or other sooner deter- mination of this present lease, said C. D., etc., will yield up said premises, etc., unto the said A. B., his heirs or assigns. allow unto the said C. D., his, etc., on the said premises, or within four miles distant therefrom, necessary materials for the repairing and amend- ing thereof, within forty days after notice of the want thereof, and demand of the same made by the said C. D., his executors, etc., the said mate- rials to be carried to the said premises at the ex- pense of the said C. D., his executors, etc. REPAIRS THE LESSOR TO FIND MATERIALS FOR. That he, the said C. D., his executors, adminis- trators, and assigns, shall and will, at his and their own proper costs and charges, well and sufficiently repair, maintain, and preserve, the said real property, tenements, and farm-house, and all other the outhouses, gates and fences be- longing to the said premises, he, the said A. B., his heirs and assigns, upon notice and request to them made, finding and allowing on the said premises, or within four miles thereof, all ma- terials whatsoever for the doing thereof, to be carried to the said premises at the charge of the said C. D., his executors, administrators, or as- signs. STRAW NOT TO BURN, ETC. That the said C. D., his executors, administra- tors and assigns, shall not, at any time or times, during the last two years of said term, sell, or otherwise dispose of, any of the straw which shall be growing and arising upon the said leased premises, a^id shall not burn any straw, except it be for the necessary singeing of his and their hogs for the use of their own families, etc. TAXES To PAY. That he, the said C. D., Mis executors, ad^nmis- 328 CONVEYANCES. trators and assigns, shall and will, at at all times during the said term of years hereby leased, pay and discharge all such taxes and assessments as hall be levied or assessed upon the said prem- ises, the land tax only excepted. TIMBER EXCEPTION OF, ETC. Except, and always reserved, out of this pres- ent lease unto the said A. B., his heirs and as- signs, all timber and timberlike trees, and all other trees whatsoever, but the fruit trees for their fruit only, and the pollard trees for their lops and tops only, which now are, or at any time or times hereafter shall be standing and growing in and upon the said premises, or any part thereof, with free liberty of ingress and egress to and for the said A. B., his heirs and as- signs, servants and workmen, from time to time, and at all times during the term hereby leased, the same to cut down and carry away, in and through the said leased premises, or any part thereof (doing no wilful hurt or damage to the grain and grass of the said C. D., his executors, administrators, and assigns), at all times during the term hereby leased, and free liberty to enter into and upon the said premises, and every part thereof, to view the condition of the repairs thereof. TIMBER TO REPAIR FARMING UTENSILS LESSOR TO ALLOW. And also shall and will, from time to time, dur- ing this present lease, allow unto the said C. D., his, etc. , timber to be had and taken off and from the said premises (if any such there be), for neces- sary repair of all farming utensils, to be used and spent upon the said premises, and not elsewhere, and to be set out for that purpose by the said A. B., his heirs or assigns, on such notice as afore- said of the want thereof. TREES NOT TO LOP, ETC. That the said C. D., his executors, etc., shall not, nor will at any time during the term hereby leased, lop or cut any of the trees or spring wood belonging to the said premises, but such pollard trees and spring wood as have been usually lopped and cut by former and other tenants, and those only of twelve years' growth, and the same shall not be sold or disposed of in any other way whatsoever, and shall not nor will, at any time -2 Call. 428; 7 Watts, 401. q-6 Blackf. 113; 15 Johns. 205; 4 Pick. 349. r-3 Mo. 516; 5 Johns. 258; 10 Id. 741; 12 Id. 146 ; 2 Pick. 610 ; 2 N. H. 13 ; 5 Vt. 532 ; 26 Me. 499. i-8 Johns. 96 ; 2 Port. (Ala. ) 433 ; 18 Me. 132 ; 7 Mo. 566 ; 12 S. & M. 306; 34 Me. 208. t-5 Greenl. 96; 10 S. & M. 527; 13 Ala. 246; 20 Pick. 399 ; 10 Mo. 506. U-i2 N. H. 205 ; 7 Met. 244 ; n E. L. & E. 584, S. C.; 7 Exch. 581. v-is Me. 48; 12 Met. 308; 20 Vt. 78. W-4 Blackf. 425. x-3 Fairf. 282 ; 16 Pick. 462 ; 25 Me. from the nature of a pledge, but is not neces- sary to a mortgage.' TRANSFER OF PERSONAL PROPERTY by way of mortgage is a common class of transfers on condition, and is regulated by statute. A mort- gage of personal property, like that of real estate, may (in the absence of a statute other- wise) consist of an absolute bill of sale; and a separate instrument of defeasance given at the same time. 8 And although the bill of sale is absolute, and no -writing of defeasance is given* back, parol testimony is still admissible to prove that it was intended only as collateral security.' It is well settled that mortgages of personal property need not be under seal." In the absence of stipulations to the contrary, the mortgagee of personal property has the legal title thereto, and the right of possession ; and he may have an action against any one taking them from the mortgagor.* And parol proof is not admissible to show an agreement that the mortgagor should remain in possession, the mortgage itself being silent upon the subject.* And although the mortgage contains an express stipulation that the mortgagor shall remain in possession until default of payment, and with a power to sell for the mortgage debt, the mort- gagee may nevertheless sustain trover against an officer attaching the goods as the property of the mortgagor." As between the mortgagor and mortgagee, a mortgage is valid, although there be no delivery of the property, and no possession by the mortgagee, or deposit of the mortgage in the proper office for record.? But as to creditors, subsequent purchasers and mortgagees in good faith, the mortgagee must have and retain the possession of the mort- gaged property, or the mortgage acknowledged, must be recorded in the proper office in the county in which the property conveyed, or a greater part thereof, shall be. Such record is equivalent to actual delivery and continued possession of the property. A MORTGAGE MUST BE IN WRITING when it is intended to convey the legal title. 1 It must be in one single deed which contains the whole contract. In the absence of a statute to the contrary it may be in two separate instruments the one containing an absolute conveyance and the other a defeasance;* and generally whenever it is proved that a conveyance was made for the purposes of security, it will be treated as a mortgage, and all the incidents thereof attached thereto. 5 The defeasance must be of as high a nature as the conveyance to be defeated. The rule as to the admission 86 : 26 Id. 499. y- 11 N. H. ss ; 2 Story, 492 ; 2 Green. (N. J.) 18. z-i Penn. 240. a-2 Johns. Ch. 189; 15 Johns. 555; 3 Wend. 208; 7 Id. 248; 2 Me. 152; n Id. 346; 12 Mass. 456; 7 Pick. 157; 3 Watts, 188; 6 Jd. 405. l-9 Wheat. 489 ; i How. 118; 12 Id. 130; 2 Des. Eq. 564; i Hardin, 6; 2 Cow. 246; 9 N. Y. 416; 25 Vt. 273; i Md. Ch. 536; 3 Id. 508; i Murphy, 116; 10 Verg. 376 ; 3 J. J. Marsh, 353 ; 5 111. 156 ; 4 Ind. 101 : 2 Pick. 211 ; 20 Ohio, 464; 36 Me. 115; iCal. 203; i Wis. 527; 98. &R. 434. c-i-N. H. 39; 13 Pick. 411; 22 Id. 526; 43 Me. 206; 2 Johns. Ch. 191; 7 Watts, 361. CONVEYANCES. 335 <>i parol evidence to establish the character of a, conveyance varies/ 1 ASSIGNMENT of mortgages must be made in accordance with the requirements of the statutes of frauds. SATISFACTION of mortgages upon real or per- sonal property may be either : 1. By an entry upon the margin of the record thereof, signed by the mortgagee or his attorney, assignee, or personal representative, acknowledging the satisfaction of the mortgage, in the presence of the recording officer ; or 2. By a receipt indorsed upon the mortgage, signed by the mortgagee, his agent or attorney, which receipt may be entered upon the margin of the record; or 3. It may be discharged upon the record thereof whenever there is presented to the proper officer an instrument acknowledging the satisfaction of such mortgage, executed by the mortgagee, his duly authorized altorney-in- fact, assignee, or personal representative, and acknowledged in the same manner as other instruments affecting real estate. See MORTGAGE FORMS, below. ALABAMA. Mortgages of real and personal property are usually executed with powers of sale in event of a breach of condition. The power of sale may be executed by an assignee or personal representative, or person who be- comes entitled by assignment or otherwise to the money secured. f Mortsrajsres of Real Property.se Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure without the intervention of a court, by publication of notice, is usually provided for by a power of sale in the mortgage authorizing such proceedings. If the mortgage provides for foreclosure upon a breach of any of the conditions, the courts will foreclose. They may be foreclosed by bill in equity. Married women cannot mortgage their statutory separate estate for the purpose of subjecting it to sale for the payment of the husband's debt. Recording. See DEEDS, above. Redemption may be effected within two years. Sale. See FORECLOSURE, above. See GENERAL FORMS, post. Mortgages of Personal Property. Chattel mortgages to secure debt, or provide in- demnity, are executed in the same manner as any other simple agreement of conditional sale, with the addition of registering or in certain cases recording. Registering. They must be registered in the proper office within four months. Recording. If the property is removed to a differ- ent county from that in which the grantor resides, the conveyance or mortgage must be recorded within six months from such removal. Set GENERAL FORMS, post. ARKANSAS. Mortgrag-es of Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure is by complaint in equity in which no interlocuting orders or day of payment need be given. A personal decree is also given for the amount due on the mortgage. Lien attaches when filed for record. d-See 26 Ala. (N. S.) 312 ; 29 Id. 254 ; 7 Ark. 505 ; 18 Id. 34 : 8 Cal. 424 ; 9 Id. 538 : 8 Conn. 186 ; 15 111. 519, 528 ; 4 Blackf. 67 : 2 B. Mon. 72 ; 9 Dana, 109 ; 36 Me. 562 : 43 Id. 206; 6 Harr. & J. 138, 435 : 3 Md. Ch. Dec. 508; 13 Pick. 411 ; 22 Id. 526 ; 3 Mich. 645; 23 Miss. 375; 10 Mo. 483; 22 Id. 77; it N. H. 571 ; Saxt. (N. I.) Ch. 534; 10 Barb. 582; i Johns. Ch. 425, 594; 5 Paige Ch. 9 ; 9 N. Y. 416; 2 Jones Eq. 172, 256; 33 Penn. St. 158; i R. I. 30; 3 Rich. 153; 10 Yerg. 373; Married women may execute a mortgage as though single. Recording. Same as DEEDS, abore. Sales of land are not ou less than three nor more than six months' credit, the purchaser giving bond with surety. See GENERAL FORMS, post. Mortgages of Personal Property. Sales of personal properly under a decree are made on a credit of three months. See GENERAL FORMS, post. CALIFORNIA. Morlsra:;-*'* of Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure must be by action or suit for that pur- pose in the superior court. Married Woman need not sign except when prop- erty mortgaged is the homestead, or is her separate property, unless she is named as a mortgagee. Recording. See DEEDS, above. Redemption may be made within six months after sale ; the same right exists as in execution. Satisfaction is entered on the margin of the record, signed by the mortgagee, and witnessed by the recorder. See GENERAL FORMS, post. Mortgages of Personal Property. Chattel mortgages may be given upon locomotives* engines, and other stock of a railroad ; steamboat ma" chinery, machinery used by machinists, foundrymen and mechanics ; steam engines and boilers ; mining ma- chinery ; printing presses and material ; professional libraries ; instruments of surveyors, physicians, or den- tists ; upholstery and furniture used in hotels and lodg- ing houses ; oil paintings, pictures and works of art ; all growing crops, including grapes and fruit ; vessels of more than five tons burden; instruments, negatives, furniture, and fixtures of a photograph gallery ; machin- ery, casks, pipes, tubes and utensils used in the manu- facture or storage of wine, fruit brandy, fruit syrups or sugar; also, wines, fruit brandy, fruit syrup, or sugar, with the cooperage in which the same is contained; pianos and organs; iron and steel safes; neat cattle, horses, mules, swine, sheep, and the increase thereof. Chattel mortgages must show on their faces : i. The residence of the mortgagor and mortgagee. 2 Their occupation, profession, or trade. 3. The rate of interest, and when and where the same is payable. 4. The affidavit of both mortgagor and mortgagee that the mortgage is bona fide, and made without any design to hinder, defraud or delay creditors. 5. It must be re- corded to be valid against creditors, etc. Chattel mortgages may be foreclosed by action or suit after the debt secured becomes due. See GENERAL FORMS, post. C'OLORAI>O. Mortg-ag-es of Real Property. See DEEDS, above ; GENERAL FORMS, below. Mortg-ajres of Personal Property. Acknowledgment must be before a justice of the peace of the precinct in which the mortgagor resides in order to affect third parties. Possession may be retained by the mortgagor if so stipulated by the mortgagee. Recording in the office of the recorder of the county is necessp.ry to be valid against creditors, etc. Two years is the longest period for which a chattel mortgage can be given. See GENERAL FORMS, post. CONNECTICUT. Mortsag-es of Real Property. Acknowledgments. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure is effected by bill in equity. Satisfaction, release, or discharge is by a quit-claim deed from the mortgagee. Mortgages of Personal Property. Machinery, engines, and implements used and being in any manufacturing or mechanical establishment; presses and material pertaining to a printing establish- ment ; household furniture used for housekeeping, etc. ; 1 1 Humph. 587 ; 3 Texas, i ; 14 Id. 142 ; 9 Vt. 279 ; 19 Id. 9; 2 Call. 421; 2 Munf. 40; i Wis. 527; 4 Kent. Comm. 143 ; i Washb. R. Prop. 483. 336 CONVEYANCES. hny in a building, etc., may be mortgaged by the owner thereof. Possession may be retained by the mortgagor. Foreclosure may be effected at any time, and the property sold by order of the court. DELAWARE. Mortivmrrs of Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. A default clause is generally inserted. Foreclosure is effected by proceedings in the supe- rior court by writ of scire facias . Lien of purchase-money mortgage duly recorded has preference to any judgment against the mortgagor or other lien of a date prior to such mortgage. Recording must be within sixty days after the mort- gage is executed. Sale after judgment is made of the premises under a writ of levari facias. Chattel Mortgages may be made to run three years, must be recorded within ten days after execution, and endorsed bona fide for debt or indemnity. Can be fore- closed in sixty days after default. Otherwise same as real property mortgages. (March 23d, 1877.) DISTRICT OF COLUMBIA. Trust Deeds of Real and 1'ersoititl Property. Security for debts and loans are made uniformly by deeds of trust. Acknowledgment, where real property is trans- ferred, same as DEEDS, above. Execution. Same as DEEDS OF TRUST, above ; and in addition confer power upon the trustee to sell upon default in payment of the debt, note, or interest, after giving notice by advertisement. Release is by deed of release from the trustee. Sale. After a sale under a deed ot trust there is no redemption ; and such sale is avoided by suit in equity upon special grounds which justify setting aside such sale. See TRUST DEEDS, above. FLORIDA. Mortgages or Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure is effected by bill in equity, or by peti- tion to the circuit court of the county in which the prop- erty is situated. Married women need not join unless named as a mortgagor, or unless it is her separate property. Recording is necessary in order to be effectual Against creditors or subsequent purchasers, etc. Satisfaction. Mortgages may be discharged by ac- knowledging satisfaction thereof before the clerk of the circuit court where recorded, and proper entry upon the record, or by a satisfaction piece either indorsed upon the mortgage or separate therefrom, duly proved or ac- knowledged as a deed, etc., is acknowledged. See GENERAL FORMS, post. Mortgages of Personal Property. Chattel mortgages are in the usual form. Foreclosure is same as of a mortgage of real prop- erty, and must be in the county in which the mortgaged property may be. It may be foreclosed at any time. Recording is necessary to its validity, and must be in the county in which the mortgaged property shall be at the time of the execution of the mortgage, unless the mortgaged property be delivered at the time of the ex- ecution of the mortgage, or within twenty days there- after, to the mortgagee, and shall continue to remain truly and bona. fitie in his possession. They are admitted to record upon the same proof as real properly, or by proof being made upon oath by at least one credible person, before the recording officer, of the handwriting of the mortgagor, in cases in which there is no attesting witness. See GENERAL FORMS, post. GEORGIA. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above, in presence of a witness. Foreclosure is effected by petition to the superior court of the county in which the property is situated. Recording must be within one month from date. Sales are made by the sheriff under the same regula- tions as govern sheriff's sales under execution. See GENERAL FORMS, post. Mortgages of Personal Property. No particular form is necessary, so the general rr* quisites are embraced. Foreclosure is effected by the proper affidavit of the mortgagee (or his assignee), his agent or attorney, be- fore any officer of the State authorized to administer oaths, etc., stating the amount of principal and interest due. And the mortgage and such affidavit annexed be- ing produced before a judge of the superior court of the circuit embracing the county in which the mortgagor resides, etc., whereupon an order is granted declaring the mortgage foreclosed, and the clerk is directed to issue execution. See GENERAL FORMS, below. Mortgages of Real Property, Acknowledgment & Recording same as DEEDS. "Sec. II. Mortgages of lands may be ir. the following form, substantially: The mortgagor (here insert name or names), mort- gages and warrants to (here insert name or nanus of mortgagee or mortgagees), to secure the pay- ment of (here recite the nature and amount of indebt- edness, showing when due, and rate of interest, and whether secured by note or otherwise) the following described real estate (here insert descripi ion there- of), situated in the County of - , and State of Illinois.* A. B. [L. S.] Dated this day o, -- , A. D. - ." "Every such mortgage, when otherwise properly executed, shall be deemed and held a good and suffi- cient mortgage in fee to secure the payment of moneys therein specified; and if the same contains the words "and warrants" the same shall be construed the same as if full covenants of seizin, good nght to convey against incumbrances, of quiet enjoyment and general warranty, as expressed in Section nine (9) of this Act, were fully written therein ; but if the words "and war- rants" are omitted, no such covenants shall be im- plied." R. S. 1877, Ch. 33, p. 271. *See title DEEDS, p. 276, Sec.n. . . ante. In addition, the mortgage may contain a power of sale, authorizing the mortgagee to foreclose by publi- cation of notice, and may also contain a provision au- thorizing the Sheriff to execute the power of sale. Foreclosure is by scire facias or bill in equity. Redemption must be within one year of sale. Satisfaction is by entry on the margin of the record, or any instrument of release by the mortgagee. Trust Deeds are preferred generally. Mortgages of Personal Property, Are in the usual form, and are limited to 2 years. Acknowledgment is required. Foreclosure is effected on default; delay invalidates mortgagee's lien. INDIANA. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure is effected upon any breach of condi- tion, or default. If the property is not divisible, judg- ment may be rendered for the whole debt, both for th amount due and the instalments subsequently to fall due, rebating interest. Any mortgage of lands worded in substance as follows : a "A. B. mortgages and warrants to C. D." (here describe the pretnii.es}, " to secure the repayment of" (here recite the sum for luhich the mortgage is granted, or the notes or other evidences of debt, or de~ scription thereof, sought to be secured; also the date of repayment}. The said mortgage being dated, and duly signed, sealed, and acknowledged by the grantor, shall be deemed and held a good and sufficient mortgage to the grantee, his heirs, assigns, executors, and administra- tors, with warranty from the grantor and his legal rep- resentatives, of a perfect title in the grantor and against all previous incumbrances. If in the above form the words, " and warrant " be omitted, the mortgage shall be good, but without warranty.* Recording. See DEEDS, above. Satisfaction, where the mortgage is foreclosed and judgment paid or satisfied, is immediately entered by the clerk of the circuit court on the record in the re corder's office where the mortgage is recorded. a-R. S. 1881, I 2930. CONVEYANCES. 337 When satisfied without foreclosure the mortgagee en- ters satisfaction either on the margin of the record, or by separate instrument duly acknowledged and recorded. See GBNPRAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are in the usual form. To be valid they must be accompanied by immediate delivery and changed possession of the mortgaged goods unless the mortgage is recorded in recorder s office of county where mortgagor resides within ten days from the time it is executed. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure is effected by a civil action or suit for tlvit purpo^. Married -women need not join unless named as a mortgagor, or unless the property belongs to her. Possession is retained by the mortgagor unless other- wise agreed. Recording. See DEEDS, above. Redemption may be effected within one year after sale. Satisfaction, in case of foreclosure, is entered by the clerk of the court. In other cases it must be entered upon the margin of the record, or by a satisfaction piece duly acknowledged and recorded. See GENERAL FORMS, helow. Mortgages of Personal Property. Chattel mortgages are in the usual forms. Foreclosure is effected at any time. Due notice thereof must be served upon the mortgagor and upon all purchasers from him subsequent to the execution of the mortgage, and upon all persons having recorded liens upon the same property which are prior to the mortgage. Possession, in the absence of stipulations to the con- trary, is and remains in the mortgagee. Sale. After notice has been served upon the partier., it must be published in the same manner and for the same length of time as is required in cases of the sale of like property on execution, and the sale is concluded in the same manner. The sheriff conducting the sale executes to the purchaser a bill of sale of the property, which effectually transfers to the purchaser all the title and interest on which the mortgage operated as a lien. Recording. Necessary immediately against third persons. KANSAS. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure may be effected at any time after de- fault, by action or suit for that purpose in the district court. Possession remains in the mortgagor in the absence of stipulations to the contrary. Recording. Same as DEEDS, above. Redemption may be had within 18 months after sale. Satisfaction may be by : i. Receipt indorsed on the mortgage ; 2. Entry upon the margin of the record in presence of the register of deeds ; or, 3. By an instru- ment duly acknowledged and recorded. Trust Deeds. Trust deeds are in use, but do not substitute mort- gages in general practice. See GENERAL FORMS, below. Mortgages of Personal Property. Acknowledgment is unnecessary. After condition broken, the mortgagee or his assigns may proceed to sell the mortgaged property, or so much thereof as may be necessary to satisfy the mortgage and costs of sale, having first given notice of time and place of sale, by written or printed hand-bills, posted up in at least four public places in the township or city in which the property is to be sold, at least ten days previous to the sale.* A chattel mortgage which is not accompanied by an immediate delivery and followed by an actual and con- tinued possession of the things mortgaged is void unless such mortgage is forthwith deposited in the office of the register of deeds in the county in which the property is then situated, or the mortgagor resident, etc. Chattel mortgages are renewable, yearly. See GENERAL FORMS, below. -G. S. 1868, Ch. 68, 3 17. b-R. S. Ch. 90, $ 1-5; Laws 1872, Ch. 27. c-Id. Ch. 91, $ 1-6. KENTUCKY. of Real Property. Acknowledgment, execution, (adding clause for defeasance) and Recording. Same as DEEDS. Fore- closure is by decree in equity. Homestead exemp- tion may be waived. Married women must join in the mortgage to bardower. See DEEDS ETC., below. Mortgages of Personal Property. And the usual form Acknowledged and Re- corded. See GENERAL FORMS, post. 1,01 ISIV>A. Mortgages of Real Property. Acknowledgment, Execution and Recording. Same as DEEDS. Foreclosure is by suit. Sue GENERAL FORMS, post. MAIMS. Mortgages of Real Property. Acknowledgment, Execution and Recording. Same as DEEDS. "Sec. 5. If, after breach of the conditions, the mortgagee or any person claiming under him is not desirous of taking and holding possession of the prem- ises, he may proceed for the purpose of foreclosure in either of the following modes: R. S. 1871, Ch. 90. "First, he may give public notice in a new.paper printed in the County where the premises ire situated, if any, or if not, in the State paper, three weeks suc- cessively, of his claim by mortgage on such real es- tate, describing the premises intelligibly, and naming the date of the mortgage, and that the condition in it is broken, by reason whereof he claims a foreclosure ; and cause a copy of such printed notice, and the name and date of the newspaper in which it was last pub- lished, to be recorded in each registry of deeds in which the mortgage deed is or by law ought to be re- corded, within thirty days after such last publication. "Second, he may cause an attested copy of such notice to be served on the mortgager or his assignee, If he lives in this State, by the Sheriff or his Deputy of the same County, by delivering it to him in hand, or leaving it at his last and usual abode ; and cause this original notice and the Sheriff's return thereon to be recorded within thirty days after such service as aforesaid. And in all cases the certificate of the Reg- ister of Deeds shall be prima facie evidence of the fact of such entry, notice, publication of foreclosure, and of the Sheriff's return." "Sec. 6. The mortgagor, or person claiming un- der him, may redeem the mortgaged premises within three years next after the first publication or service of the notice mentioned in the preceding Section, and if not so redeemed the right of redemption shall be for- ever foreclosed." "Sec. 26. In all cases the mortgage may be discharged by the deed of release from the person au- thorized to discharge it, or by causing satisfaction and payment under his hand to be entered in the margin of the record of each mortgage in the Register's office." But the practice is to make the time of fore- closure one year by agreement of parties in the instru- ment. Mortgages of Personal Property. Chattel mortgages are void against third parties un- less recorded in the clerk's office of the town where the mortgagor lives, or possession is taken and retained by the mortgagee. The right of redemption is lost after sixty days' no- tice of foreclosure. A bill of sale gives absolute title to the grantee and must be recorded. See GENERAL FORMS, below. MARYLAND. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above, containing t power authorizing sale on nonfulfilment of conditions . Foreclosure in Baltimore is effected by a decree of sale from the court of equity ; a trustee is appointed by the court, who gives bond, advertises the property, makes sale thereof, and reports to said court for con- firmation, etc. In the various counties the mortgagee, or his legal representative, sells under the power in the mortgage, after due notice, and giving bond, makes sale, and re- ports the same to the court of equity for confirmation. Recording. Same as DEEDS, above. See GENERAL FORMS, below. CONVEYANCES. of Personal Property. Chattel mortgages are in use, but in practice are equivalent only to bills of sale. See title SALE. MASSACHUSETTS. Mortgages of Heal Property. Acknowledgment, Execution and Recording. Same as DEEDS, above. Execution. Same as DEEDS, above ; with the in- sertion of the condition, with provisions authorizing a sale of the premises in case of failure by the mortgagor to perform the condition. Foreclosure is effected either by an action at law, or by entry and possession continued peaceably for three years, or else by a sale in accordance with the provisions of the power in the mortgage. Redemption cannot be made after a valid sale. Satisfaction, release, or discharge of a mortgage may be on the margin of the record, as follows : I, C. D., acknowledge to have received full pay- ment and satisfaction for the debt secured by the within deed of mortgage here recorded, given to me by A. B., and do hereby cancel and discharge the same. Witness my hand. C. D. See GENERAL FORMS, below. Mortgages of Personal Property, etc. Chattel mortgages need not be acknowledged nor un- der seal. Foreclosure may be effected at any time within the statutes of limitation. Recording. Abso- lute bills of sale, intended to operate as mortgages, must be recorded. Chattel mortgages must be recorded on the records of the city or town where the mortgagor resides when the mortgage is made, and on the records of the city or town in wh'ch he principally transacts his business. If the mortgagor is a non-resident of the State, then the recording must be in the city or town where the property then is. Unless so recorded the mortgage is not valid except between parties, unless the mortgagor has and continues actual possession of the mortgaged goods. Vessels and goods at sea, mortgages or transfers thereof need n >t be recorded. MICHIGAN. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Ex- ecution. Same as DEEDS, above ; with power of sale on breach of condition, etc. Foreclosure is effected either in chancery, or by advertisement under a power of sale. Recording. Same as DEEDS, above. Sale may be had one year after foreclosure by a court of chan- cery, and fifteen months when sold under the power , contained in the mortgage. Satisfaction or discharge may be by the mortgagee ' or his personal representative, acknowledging ihe same | in writing on the margin of the record in presence of the register, or by a written certificate, duly acknowl- edged and recorded at length in the same manner as the original mortgage. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are in the usual form ; they are ab- solutely void unless accompanied by an immediate de- livery of the goods and chattels mortgaged, and a con- tinued possession of the same by the mortgagee, unless the mortgage, or a true copy thereof, shall be filed in the office of the township clerk of the township, or city clerk of the city, where the mortgagor resides. Concealment, disposition, embezzlement, or removal of property thus mortgaged is a misdemeanor. Renewal. Chattel mortgages extend and are valid for one year only, but may be extended from year to year upon the mortgagee's affidavit annexed to a copy .if the mortgage, stating the mortgagee's interest. See GENERAL FORMS, below. MINNESOTA. Mortgages of Real Property. Acknowledgment, Execution and Recording. Same as DEEDS, above. They usually contain a power of sale authorizing foreclosure by advertisement, in which ease, upon six weeks' publication of the notice of sale prescribed by law, the premises may be sold to satisfy the mortgage debt. An absolute conveyance in form, if intended as security, will be deemed a mortgage. Foreclosure may be effected by an action at law, and a personal decree obtained in the same action against the mortgagor for any deficiency from the debt and costs arising or. the sale of the mortgaged premises.* The mortgagee has his action for a strict foreclosure, but A final decree cannot be renderud until one year after judgment for the amount due on the mortgage. b Redemption, where the mortgage is foreclosed Vy publication, can be mude within one year from the date of sale, ll foreclosed by action at law and sale of premises, the right of redemption expires one year from the date of confirmation, at which tune the purchaser is entitled to a final decree.c Satisfaction or discharge of a mortgage is made by an entry on the margin of the record thereof, signed by the mortgagee or his legal representative, acknowl- edging satisfaction, etc. ; also by a separate instrument in the usual form, duly executed, acknowledged, and recorded in the same manner as the original mortgage. See GENERAL FORMS, below. Mortgages of Personal Property. Acknowledgment before some officer authorized to take acknowledgments or a town clerk is necessary. They must be filed in the office of the town or city clerk, both where the property is situated and where the mort- gagor resides at the ti-ne of the execution thereof. They are valid only for two years after date. See GENERAL FORMS, below. MISSISSIPPI. Mortgages of Real Property. Acknowledgment and Executions. Same as DEEDS, above. Foreclosure is effected by bill in equity in the chancery court, which may be filed at any time after the debt secured becomes due. Lien of the mort- gage attaches only from the date of delivery to the clerk for record. Recording must be within three months from execution. Satisfaction. Upon receiving sat- isfaction the mortgagor shall enter the same upon the margin of the record of the mortgage, upon which the title invests in the mortgagor. Deeds of trust are in frequent use instead of mortgages. They save foreclos- ure proceedings. S-e GENERAL FORMS, below. MISSOURI. Mortgages of Real Property. Acknowledgment, Execution and Recording. Same as DEI;DS, above. Foreclosure by action at law. Sale after foreclosure. GENERAL FORMS, below. Trust Deeds. Trust deeds are the common form of security. Acknowledgment and Execution. Same as DEEDS, above. The property is conveyed to a trustee with power to sell and to convey the property absolutely if the debt is not paid. Foreclosure or suit. These transactions are without foreclosure or suit. Releases are made by deed. Trustees must be joined by the creditors in order to give a valid release. Mortgages of Personal Property. Chattel mortgages and deed of trust upon personal property are void as against third persons unless the property is delivered to and possession retained by the mortgagee, or beneficiary, or trustee, unless the instru- ment is recorded iu the county wherein the grantor resides. MONTANA. Mortgages of Real Property Are executed and acknowledged in the usual form. Foreclosure is effected by suit for that purpose. Discharge or release may be, i, by entry in the margin of the record signed by the mortgagee or his personal representative or assignee, acknowledging satisfaction thereof in presence of the recorder or his deputy, who subscribes the same as a witness ; also, 2, by a certificate acknowledged or proved, same as the original mortgage. Satisfaction must be entered within seven days undei $100 penalty and actual damages, etc. NEBRASKA. Mortgages of Real Property. Acknowledgment, Execution and Recording. Same as DEEDS, above. Kvery deed, though absolute, shown by any other instrument of writing to be intended as a security in the nature of a mortgage, is deemed a mortgage. Foreclosure may be effected after any de- linquency or default of condition or payment, and sale may be made by decree of court. Possession remains in the mortgagor. a-G. S Ch. 81, 24, et seq. b-Laws, 187, p. 119. e-G. S. Ch. 81, 13, 31. CONVEYANCES. 339 Redemption is not allowed. Satisfaction is entered by the mortgagee, his as- signs, or personal representative, by entry on the mar- gin of the record, signed by such person in presence of and attested by the clerk or his deputy , or by such entry made and signed by the clerk on presentation to him of a certificate that such mortgage has been satisfied, signed by the mortgagee, and acknowledged or proved in the same manner as a deed. See GENERAL FORMS, below. Tlorl srauos of Personal Property. Chattel mortgages, unless followed by an immediate an 1 continued change of possession, is void as against creditors, subsequent purchasers, etc., unless the mort- gage itself or a true copy thereof is filed and recorded in the office of the county court. Chattel mortgages are valid five years only after the filing thereof, against creditors, purchasers or mort- gagees in good faith Foreclosure may be effected at any time. Removal of property mortgaged out of the jurisdic- tion of the district court of the county where the goods are mortgaged is a felony. See GENERAL FORMS, below. NEVADA. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure is effected by an action at law for that purpose. Recording. Same as DEEDS, above. Satisfaction is made in any of the usual forms. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are void as against third parties, etc., unless possession of the property mortgaged is de- livered to and retained by the mortgagee. The excep- tion to the rule is growing crops, in case of which the mortgage must be executed , acknowledged, and recorded in the proper office. See DEEDS. See GENERAL FORMS, below. NEW HAMPSHIRE. M ortgages of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above, with conditions ex- pressed and stating distinctly the sum of money secured, etc., or thing to be done. Foreclosure is effected : i. By entry and possession for one year under process of law. 2. By peaceable en- try upon the premises and unbroken, actual possession thereof for one year, and a publication in a newspaper in the county three weeks, stating the names of the par- ties, the date of the mortgage, a description of the prem- ises, the time of taking possession, anil the object thereof; such publication must be more than six months before the time of redemption is expired. 3. By publi- cation as aforesaid, by the mortgagee in actual posses- sion, giving notice that after a certain specified day, not more than twenty-eight days after the last publication, possession is to be holden for the purpose of foreclosure, and by retaining actual possession of the premises for one year from and after the day specified in the notice or publication." Recording. Same as DEEDS, above. Satisfaction may be indorsed on the mortgage, thus: "I discharge the within mortgage." (Signed) "C. D." The wife need not join; such discharge should be entered on the margin of the record of the mortgage by the register of deeds of the county. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are absolutely void as to third par- ties, unless the property or goods mortgaged are deliv- ered to and possession had and retained by the mort- gagee, or unless the mortgage is recorded in the office of the clerk of the town where the mortgagor resides. If a firm is a party, any partner may make and sub- scribe the affidavit. If a corporation is a party.it may be done by a director or other person duly qualified and authorized. Both parties must make and subscribe the following affidavit, which must be indorsed upon or an- nexed to the mortgage and recorded therewith : a-G. S. 253. fo-Nixon's Digest, 611, Ch. 557. c-Id. State of New Hampshire, county, ss. We severally swear that the foregoing (above or within; mortgage is made for the purpose of se- curing the debt (or securing the indemnity, or per- formance, etc.) specified in the condition thereof, and for no other purpose whatever, and that said debt (or obligation, etc.) was not created for the purpose of enabling the mortgagor to execute said mortgage, but is a just debt (or obligation, etc.) honestly due and owing from the mortgagor to the mortgagee. So help us God. Subscribed and sworn to before me, this day of . J. P., Justice of the Peace. Foreclosure is effected by a sale of the property mortgaged at public auction at any time after thirty days from condition broken. Upon notice, in writing, to the mortgagor, at least four days prior to sale, and pasting notices of sale in two public places in the town. See GENERAL FORMS, below. NEW JERSET. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above, pursuing the com mon law form. Foreclosure must be by suit in equity. Married women must join in the mortgage. Recording. Same as DEEDS, above. Redemption cannot be effected after sale under a decree. Satisfaction is entered by the clerk of the county upon application of the mortgagor or person satisfying the mortgage and producing the mortgage cancelled, or a receipt thereon duly signed and acknowledged, or a separate instrument acknowledging satisfaction, duly executed and acknowledged. 11 See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages, unless accompanied by immediate delivery and followed by a continued possession of the property mortgaged, are absolutely void as against cred- itors, subsequent purchasers, etc., unless said mortgage duly acknowledged as deeds are, with affidavit of con- sideration and amount due, and to grow due, is filed in the office of the clerk or register, if any. of the county where the mortgagor resides, or, if non-resident, then where the property is at the time of its execution So recorded it remains a lien until cancelled of record. Foreclosed at any time after breach of conditions. Chattel mortgages under the old law have ceased tt be valid against creditors, etc., unless within one yeaf from March zgth, 1881, the mortgage or a true copy Has been recorded as above. If so recorded it remains a lien until paid. Wife must join in chattel mortgage on household goods. STEW YORK. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above. Absolute convey ances, which by any other instrument appear to have been intended as a mortgage, is so considered, and the recording of such conveyance has no effect unless such other written instrument is executed therewith and at the same time.* Foreclosure. Mortgages containing a power of sale may be foreclosed by publication and service of notices without the intervention of the court, and the premises sold at public auction to satisfy the mortgage debt. 5 Mortgages may be foreclosed by action and a personal decree obtained in such action against the mortgagor for any deficiency of the debt upon sale of the mortgaged premises. Married women arc not entitled to dower as against the mortgagee "for purchase-money, although she did not unite in the mortgage. But where such lands are sold by the mortgagee after the death of the husband, the widow takes her interest in the surplus. f Recording. Same as DEEDS, above. Redemption is not allowed after a mortgage sale. Satisfaction is entered in any of the usual forms. Trnst Deeds. Express trusts are created as follows :f 1. To sell lands for the benefit of creditors. 2. To sell, mortgage, or lease lands for the benefit of legatees, or for the purpose of satisfying any chargi thereon. p. 613. d-i R. S. 746. e-4 Id. Ch. 308. f-H, 74* g--See Id. 723, 726, 34 CONVEYANCES. 3. To receive the rents and profits of lands, and ap- ply them to the use of any person during the life of such person. 4. To receive the rents and profits of lands, and to accumulate them for the benefit of minors. See GENERAL FORMS, below. >Iortyr:m-s of Personal Property. Chattel mortgages are void as to third parties unless they are accompanied with an immediate delivery and a continued possession of the property or goods mort- gaged ; or unless such mortgage is filed in the office of the town clerk where the mortgagor resides ; or, if non- resident, then in the town the property so mortgaged is when the mortgage is executed. Chattel mortgages are not valid after one year unless within thirty days preceding the expiration of each year a copy of such mortgage is refiled, together with a state- ment of the amount due on such mortgage at the date of refiling. h See GENERAL FORMS, below. NORTH CAROLINA. Mortgages and Trust Deeds of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS; TRUST DEEDS, above Foreclosure is effected in case of mortgage. Re-conveyance is made in case of trust deeds. Recording. Same as DEEDS, above. Satisfaction. In case of mortgage, by receipt in- dorsed upon the mortgage and duly recorded ; marginal entry on the record of satisfaction in the presence of the register; or by separate instrument of release or satis- faction duiy executed, acknowledged, and recorded. In case of trust deed, by a reconveyance of the property. See GENERAL FORMS, below ; TRUSTEES, above. Mortgages of Personal Property. Chattel cheap mortgages not exceeding three hundred dollars are executed in the usual form.' Chattel mortgages must be recorded in the county where the donor, bargainer, or mortgagor resides. In case he is a non-resident of the State, then in the county where the personal estate, or a part of the same, is sit- uate : in case of choses in action, where the donor, bar- gainer, or mortgagor resides. Chattel mortgages may be foreclosed by sale of the property when the note or obligation becomes due, or at any time afterward. OHIO. Mortgage* of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above. Foreclosure by action for that purpose in the com- mon pleas court. Married women need not join with their husbands, or vice versa, in mortgages of their separate estate, unless rclinquishment of dower is sought. Lien attaches from presentment for record, and in the order presented to the recorder of deeds for record. Recording. Same as DEEDS, above. Satisfaction may be entered on the mortgage or re- cord of the mortgage. No acknowledgment, witness, or seal is necessary. When entered on the mortgage, the recorder should enter the same on the record of the mortgage as satisfied. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are absolutely void as to third par- ties unless accompanied by immediate delivery and con- tinued possession of the property mortgaged, unless such mortgnge is deposited with the clerk of the town- ship where the mortgagor resides : if he is a non-resident, then with the clerk of the township in which the prop- erty was when mortgaged. In townships where the amce of recorder of the county is kept, the mortgage must be deposited with him. OREGON. Mortgages of Real Property. Acknowledgment. San>" as DEEDS, above. Executed same as DEEDS, above An absolute con- veyance intended as security is deemed a mortgage. Foreclosure is effected by suit for that purpose in equity, in which the plaintiff obtains personal judgment for any balance due after the property is sold. Recording. Same as DEEDS, above. ll-Laws 1833, Ch. 270 -Laws 1873, Ch. 501. i-Laws , Ch-377- J-G. 8.651, 652. fe-Id. ;866,p.39,|6. Redemption. A decree of foreclosure ban ta equity of redemption. Satisfaction or discharge may be by entry of the mort- gagee, his assignee, or personal representative on the mar- gin of the record of the mortgage, acknowledging satisfac- tion of the mortgage, in presence of the county clerk, or his deputy, who must subscribe the same as a witness. Such entry has the same effect as a deed of release duly executed, acknowledged, and recordedj Sec GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages or copies thereof must DC filed with the county clerk. Chattel mortgages are valid for one year from date, but may be renewed and extended upon the mortgagee, his agent, or attorney, making and affixing to the instru- ment, or copy, on file, an affidavit setting forth the mortgagee's inierest, within thirty days next preceding the expiration of the year from the filing of the same. When the consideration of the mortgage is less than five hundred dollars, the mortgaged property may be sold by the sheriff or any constaole of any county in which such mortgage has been filed, upon written re- quest of the mortgagor, his agent or attorney . k PENNSYLVANIA. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above. An absolute con- veyance as security is deemed a mortgage. A mortgage is usually accompanied by a bond and warrant to con- fess judgment thereon, which may be entered in any court at any time and execution issued when any part of the debt or interest is due. Foreclosure is effected by writ of scire facias, , ac- cording to statute. This cannot be sued out within a year after the mortgage becomes due, unless it contains an express waiver of delay. Ejectment is rarely r sorted to on account of the equity of redemption. Lien of a mortgage (except for purchase-money) dates from the time of recording it. When a mortgage is prior in time to all other liens except other mortgages and ground rents, the lien is not discharged by a sale under execution upon any other lien. Otherwise, it is discharged by any judicial sale. Married woman need not join in a mortgage of her husband's property unless in fraud of her rights. A sheriff's sale of the mortgaged property discharges her dower. Recording. Same as DEEDS, above. Redemption need not be provided for in writing, but may be proved by oral testimony. Satisfaction is entered by record in the usual form. See CHATTEL MORTGAGES, brlow. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are little used in Pennsylvania, and to be valid against third parties must be accompanied by delivery of mortgaged goods to mortgagee. See ACKNOWLEDGMENT, EXECUTION, ETC. The following, other than real estate, c*n be mort- gaged, under act of Assembly : Leasehold interests in collieries, mining lands, manufactories or other prem- ises, with buildings, fixtures and machinery belonging to lesset-s ; iron ore mined and prepared for use, pig- iron, rolled or hammered iron or steel tn sheets, bars or plates, nails, boilers, engines, oil, gas and artesian well supplies, steel and iron castings not in place, petroleum crude or refined in barrels, tanks or reservoirs, roofing and manufactured slate, quarried slate unmanufactured, asphaltum blocks and all materials used in manufacture thereof, cement in bags, barrels, or other form, an 1 all materials used in the manufacture thereof; in the fol- lowing form duly acknowledged : To all to whom these presents shall come, greeting : Know ye that M. R. is indebted to M. E. in the sum of dollars and cents. Now for securing the payment of the said debt and the interest from the date hereof, the said M. R. does hereby sell, assign, and transfer to the said M. E. all the goods, chattels, and prop- erty described in the following schedule, viz. : Said property now being and remaining in the possession of M. R. (or M. E., as agreed uf on], Provided always, and this mortgage is on the express condition that if the sajd M. R. *fca pay CONVEYANCES. 34' to said M. E. the sum of - , with interest, as follows, viz., - , which said sum and interest the said M. R. hereby covenants to pay, then this transfer to be void and of no effect ; But in case of non-payment of said sum, at the time or times above mentioned, together with interest, - , the said M. E. may give to the said M. R., or to the person in possession of the prop- erty, claiming the same, written notice as required by law of his intention to foreclose the mortgage for breach of condition thereof, and if the said sum is not then paid, the said M. E. shall have fall power and authority to enter the premises of Mi R., and any other place or places where the goods and chattels aforesaid may be, and take possession of said property, and sell the same according to law, and the avails, after de- ducting all expenses of the sale and keeping of the said property, to apply in payment of the above debt ; If from any cause said property shall fail to satisfy said debt, interest, costs, and charges, the said M. R. covenants and agrees to pay the de- ficiency ; In witness whereof, M. R. has hereunto set his hand and seal the - day of - , in the year of our Lord one thousand eight hundred and - , tc. (Signed) M. R. [5VW.J aled and delivered ) in presence of W. S. j Parties may include in the mortgage covenants not inconsistent with the provisions of the act. Assignments and releases may be by instrument in writing, signed by the mortgagee, or his agent, and recorded. Foreclosure is effected after breach upon thirty days' notice, either personally or by public advertisement in- serted weekly four times, e;c., and sale of the mort- gaged property at public sale. Where goods remain in possession of the mortgagor, the mortgage must be recorded in the recorder's office of the county where goods are. Lien takes effect from the time of filing and indexing the mortgage. Mortgagor must disclose to any person or corpora- tion about to purchase the fact of property being so mortgaged, the amount of mortgage, place of recording, and time of its maturity, under penalty. Redemption may be at any time before foreclosure, on payment of the debt. Renewal. Such mortgages are good for only three months after maturity of the obligation they secure ; but time may be extended one year, by mortgagee filing a statement of his interest within those three months. Satisfaction is entered in like manner as mortgages cf real estate. RHOI>E Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above. Foreclosure is effected by sale under a power given in the mortgage after ten or twenty (as stipulated there- in) days' notice by advertisement in a public newspaper, twenty days after default. In the absence of such power the mortgagee must foreclose by bill in equity, usually within a year ; or he may obtain possession of the real estate by suit at law in six or nine months. Possession of real estate may also be taken by the mortgagee by peaceable and open entry in the presence of two wit- nesses, whose certificate thereof must be recorded. Recorded in the town clerk's office of the town wherein the real estate is situated. Redemption. When foreclosed by action or suit, or possession obtained, it may be had within three years. Satisfaction or discharge may be made on the face of the record by the mortgagee, or by a separate instrument of satisfaction or release. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are executed, acknowledged, an4 recorded same as mortgages of real property. If the mortgagee takes possession of the chattels, that will dis- pense with recording. Foreclosure, redemption, and satisfaction. Sami- as other mortgages. See GENERAL FORMS, below. SOUTH CAROLINA. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above. Foreclosure is effected by an ordinary suit for that purpose. Recording must be within forty days after exe- cution. Satisfaction is made and entered of record in any of the usual forms. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages may be in the usual form. They are enforced by the mortgagee taking possession of the chattels and selling the same subject to the term* of the mortgage, and returning any surplus proceeds to the mortgagor. See GENERAL FORMS, below. TENNESSEE. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Execution. Same as DEEDS, above. Foreclosure by suit and decree in accordance with the terms of the instrument. Registration. Same as DEEDS, above. Satisfaction is entered in any of the usual forms. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are made in the usual form and registered in the county where the mortgagor resides; if a non-resident of the State, then registered in the county where the chattels are situated at the time of executing the mortgage. See GENERAL FORMS, below. TEXAS. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above. Foreclosure is effected by suit in the district court, with prayer for judgment and sale. Fraudulently dealing with the mortgaged personalty so as to defeat the lien is a penal offence. Recording. Same as DEEDS, above. Redemption may be effected before foreclosure and sale, but not after. See GENERAL FORMS, below. Mortgages of Personal Property. See GENERAL FORMS, below. VERMONT. Mortgages of Real Property. Acknowledgments. Same as DEEDS, above.' Executed same as DEEDS, above. Foreclosure is effected by proceedings in the chan- cery court, or by action in ejectment on application of defendant. Title passes to mortgagee, if land is not re- deemed within time fixed in decree one year where security is sufficient, less time, when not so, at discretion of court. Recording. Same as DEEDS, above Redemption. See FORECLOSURE, above. Satisfaction, release, or discharge may be made by the mortgagee, his assignee or personal representa- tive, indorsing an acknowledgment thereof on the mortgage under his hand and seal, or by entry of satis- faction, etc.. on the margin of the record, or by sepa- rate instrument, duly acknowledged and recorded, or by a quit-claim deed of the mortgaged premises. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are absolutely void as against creditors, subsequent purchasers, and incumbrances, etc., unless accompanied by an immediate delivery and continued change of possession of the property mort- 342 CONVEYANCES. gaged, or except in case of machinery attached to and Used in any shop, mill, printing office, or factory, in which case the mortgage must be executed, acknowl- edged and recorded in the same manner as mortgages of real property, and foreclosed, assigned, and discharged in the same manner. They must be recorded in the office of the clerk of the town where the property is situated, etc. Recording is equivalent to a continued change of pos- session. See GENERAL FORMS, below. VIRGINIA. M ortgages and Trust Deeds of Real and Personal Property. 1 Mortgages are superceded in general practice by deeds f trust. See WBST VIRGINIA, below. See DEEDS ; DEEDS OF TRUST, above. West Virginia. Mortgages and Deeds of Trust or Real and Personal Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above, but contain a clause of defeasance. Foreclosed or enforced by a decree of a court of equity. No time is specified for such foreclosure or en- forcement. Married women should be joined in the convey- ance in order to bar their dower and homestead exemp- tion, except when the conveyance is given to secure purchase-money. Recording. Same as DEEDS, above. Release or satisfaction is effected by a short deed of release, executed and acknowledged in the following form :J I, C. D., hereby release a mortgage (or deed of trust) made by A. B. to me (or E. F., trustee, or G. H., and assigned to me), dated the day of , and recorded in the clerk's office of the county court of county, West Virginia, in deed book , page . (Signed) C. D. [Seal.} Acknowledged before the subscriber, this day of . J. P. , Justice of the Peace. (Or N. P., Notary Public, etc.) Mortgages or trust-deeds of personal property are the same as those in real estate, where possession is not transferred. WISCONSIN. Mortgages of Real Property. Acknowledgment. Same as DEEDS, above. Executed same as DEEDS, above, except the addi- tion of conditions, etc. Any conveyance intended as a security is deemed a mortgage. Foreclosure. Strict foreclosure is not allowed. Married women need not join in a purchase-money mortgage in order to bar dower. No mortgage of a homestead is valid unless the wife joins in its execution. Recording. Same as DEEDS, above. Redemption may be effected within one year after judgment. Satisfaction, release, or discharge of the mortgage may be by cancellation, by receipt indorsed thereon, by an entry on the margin of the record, signed by the mortgagee, his assignee, or personal representative, etc., in presence of the register of deeds. On proof of payment, the circuit court may order the mortgage discharged, and order a record of such dis- charge to be made by the register of deeds. See GENERAL FORMS, below. Mortgages of Personal Property. Chattel mortgages are executed in the ordinary form, nnd will be void as against third parties unless accom- pnnied by the immediate delivery and continued change of possession of the mortgaged property, or unless the mort- cngc or a true copy thereof be filed with the clerk of the lown where the mortgagor resides ; if the mortgagor is a non-resident, then such mortgage or copy must be filed in the town where the property was when it was ex- ecuted. Chattel mortgage of exempt property must be signtd by the wife, in presence of two witnesses. Such filing ceases to be notice at the expiration of two years, unless within thirty days next preceding the ex- piration of the second year ihe mortgagee, or his agent, annexes to such mortgage or copy an affidavit setting forth the mortgagor's interest in the properly mortgaged. It may thus be renewed every two years afterwards. There is no time specified in which to sell the prop- erty after breach of condition to satisfy the debt s?curd. MORTGAGES OF REAL PROPERTY- VARIOUS DETAILS. Introductions in Mortgages of Real Property. See DEEDS, above. The introduction to a conveyance, deed, lease, mort- gage, etc., is called the " Testatum " clause. See the text preceding DEED FORMS, above. A. B. (or A. B. and W. B. his wife [conveys, or]j mortgages, etc. I (or we, A. B., of , and W. B. his wife), for a consideration, etc. (convey, or) mortgage, etc. This (conveyance, or indenture, or mortgage, bipar- tite, tripartite, quadripartite, etc.), witnesseth : That, etc. This Cconveyance, or indenture, or mortgage, etc.), made this day of , witnesseth: That, etc. This (conveyance, or mortgage, etc.), made this day of , by A. B., of , to C. D., of , witnesseth : That, etc. This (conveyance, or indenture, or mortgage, etc.), made this day of , in , by A. B., of county, in the State (or Commonwealth; of , farmer, to C. D., of county, in the State (or Commonwealth) of , merchant, witnesseth : That, etc. Know all men by these presents: That this (conveyance, or indenture, or mortgage, etc., as above). Know all men by these presents : That A. B., of , for a consideration 01 , etc., the receipt of which, etc., has con- veyed and mortgaged, and does by these pres- ents convey and mortgage unto C. D. , of , etc. This (conveyance, or indenture, or mortgage, etc ), made and entered into this day of , by and between A. B., of county, and the State of , party of the first part, and C. D., of county, in the State of , of the second part. witnesseth : That, etc. Saving and excepting, etc. To all to whom these presents may come, greet- ing (or To all whom it may concern) : Know ye : That this (conveyance, or indenture, or mortgage, etc.), by and between the , a corporation exist- ing under the laws of the State (or Commonwealth) of , of the first part, and C. D., E. F., and G. H., a company doing business under the firm- name and style of the D., F., H. manufac- turing company, of the second part, witnesseth . That, etc. Premises in Mortgages of Real Property. See other Conveyances. t. STATEMENT OF PARTIES. See DEEDS, ante, p. 299, above. 2. RECITALS FOR EXPLANATION. See DEEDS, ante, p. 299, above. 3. DESCRIPTIONS OF PROPERTY MORTGAGED, ETC., WITH EXCEPTIONS, ETC. See DEEDS, ante, p. 300, above. Habendnm ici Mortgages of Real Property. See DEEDS, above. The habendum limits and defines what estate th grantee is to have in the premises conveyed, as, an estate for lives, years, or a less period ; an absolute or conditional, joint or several, restricted, or limited estate, etc., etc. In mortgages the estate of the mortgagee de- pends upon some condition or default, etc. See CONDITIONS, etc., below. j-Code Ch. 76, % i, z. CONVEYANCES. 34S HABF.NDUM IN FEE SIMPLE, ETC. To have and to hold the same forever. Provided always, etc. ANOTHER. To have and to hold the same, together with the appurtenances and every part thereof, for- ever. Upon the following conditions, etc. ANOTHER. To have and to hold the same, with the appur- tenances, unto the said C. D., his heirs and as- signs, in fee simple, forever. Provided, however, That, etc. ANOTHER. To have ar.d to hold the same, together with .all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, unto the said party of the second part, his heirs and assigns, forever. Now if said (or party of the part) shall, etc. ANOTHER. To have and to hold the said messuage or tene- ment and tract of acres of land, heredita- ments and premises hereby granted or mentioned or intended so to be, with the appurtenances and every part thereof, unto the said C. D., his heirs and assigns, to the only proper use and behoof of the said C. D., his heirs and assigns forever. Provided always, and these presents are upon these express conditions, that, etc. Reddendum or Reservation In Mort- gages of Real Property. See other Conveyances. The reddendum (or reservation) is that clause in a conveyance, deed, lease, mortgage, etc., by which the grantor reserves something new to himself out of that which he granted before. It usually follows the haben- dum. See REDDENDUM IN DEEDS, p. 300, above, and RED- DENDUM IN LEASES, p. 314, above. Conditions and Provisos in Mortgages of Real Property. See DEEDS, above. The condition in a conveyance or deed, deed of trust, lease, mortgage, etc., is a qualification or restriction an- nexed to the conveyance, whereby it is provided that in case a particular event does or does not happen, or in case the grantor or grantee does or omits to do a particular act, an estate shall commence, be enlarged, or be de- feated. " Subject to," or " Subject, nevertheless, to," or "On condition," "Provided," " Provided always," " Provided nevertheless," etc. Thus the property con- veyed may be subject to the payment of an annuity, an easement, an incumbrance, a mortgage, or other condi- tion, qualification, restriction, etc. See DESCRIPTION, ETC., WITH EXCEPTIONS, and HA- P.ENDUM and REDDENDUM, above ; MORTGAGES, TRUST DEEDS, below; and CONDITIONS AND PROVISOS IN LEASES, ante. Covenants in mortgages of Real Property. See DEEDS, above. COVENANT ASSIGNMENT. See ASSIGNMENT POWER TO ASSIGN, below. COVENANT ASSURANCE, ETC. That after default shall be made in payment of said sum and interest, or any part thereof, said A. B. , his heirs, and every other person having or claiming any right, title, or interest in said pre.nises, or any part thereof, shall, at the costs and charges of said A. B., make, execute, and deliver unto said C. D., his heirs, executors, ad- ministrators, or assigns, upon lawful demand therefor, all and every further conveyance, deed, and assurance whatsoever for the better and more perfect assuring and confirming said prem- ises unto him, them, or any of them (freed and discharged from any and all conditions and provisos hereinbefore contained for the redemption of said prem- ises, and all other equity of redemption whatsoever.) COVENANT DEFAULT. See ENTRV, SALE, ETC., below. COVENANT RECEIPT, GOOD, ETC. See COVENANT RECEIPT, ETC., below. COVENANT ENJOYMENT OF PREMISES UNTIL DEFAULT. That until default shall be made in the pay- ment of said sum of dollars, and interest fov the same, as aforesaid, or some part thereof, con- trary to the true intent and meaning of these presents, it shall and may be lawful for said A. B. , his heirs and assigns, peaceably and quietly to hold and enjoy said premises, with their appur- tenances, and receive the rents and profits there- of, to his (and their) own use and benefit, without any interruption or hindrance whatever by said C. D., his heirs or assigns, or any other person or persons whomsoever, lawfully claiming from or under him or them. ANOTHER. That said A. B., his heirs, etc., shall peaceably and quietly hold and enjoy said premises, with the appurtenances, and collect and receive the rents, issues, and profits thereof, to his and their own proper use and behoof, without any account to be made or given touching or concerning the same, and without disturbance or hindrance of or by said C. D., his heirs, executors, administra- tors, or assigns, or either or any of them, until default shall be made in payment of said sum of dollars, and interest, or some part thereof. ANOTHER. That until default in the payment of said sum or interest, or other default herein provided, said mortgagee shall have no right to enter and take possession of said premises. COVENANT ENTRY ON DEFAULT. That in case default shall be made in the pay- ment of said sum of dollars or interest, or any part thereof, contrary to the conditions, cov- enants, or provisions herein, for the payment thereof, then and from thenceforth it shall and maybe lawful to and for said C. D.,his heirs and assigns, to enter said premises, and the same thenceforth quietly to hold and enjoy, and to re- ceive and take all the rents, issues, and profits thereof, to his and their own use and benefit, without any disturbance or interruption what- ever by or from said A. B., his heirs, or assigns, or any other person or persons whomsoever; and that fraely acquitted and discharged from and against all incumbrances whatsoever. ANOTHER (MORTGAGE OF LEASED PREMISES). That it shall and may be lawful for said C. D., his heirs, executors, etc., or any of them, imme- diately from and after any breach or default made in the conditions or provisos aforesaid, to entei into and upon said premises, and every part thereof, with the appurtenances, and the same from thenceforth (under the rents, covenants, condi- tions and agreements in said lease reserved and con- tained), to have, hold, and enjoy, and the rents, issues and profits thereof, and every part and parcel thereof, to have, receive, and take (for and during all the residue and remainder of said term of by said lease granted, and then to come and unex- pired), without any disturbance, hindrance, mo lestation, or obstruction whatsoever, by said A. B.,his heirs, executors, administrators or assigns, or any of them, or any other person or persons whomsoever. COVENANT FIRE CLAUSE. That said party of the first part shall keep the buildings erected and to be erected on the prem- ises above conveyed insured against loss by fire, and assign the policy and certificates thereof to said party of the second part, his executors, ad- ministrators, or assigns. That in. default thereof said party of the second part, his executors, administrators, or assigns, shall effect such insurance, and the premium and Cremiums.etc., paid for effecting the same, shall e a lien on said mortgaged premises, added to the amount of said bond or obligation, and se- cured by these presents. COVENANT INCUMBRANCES FREE FROM. That said premises, and all and singular the ap- purtenances hereinbefore mentioned and con- veyed, are free from all incumbrances of nature or kind soever. 344 CONVEYANCES. ANOTHBK WHEN LKASFD PREMISES ARE MORT- OAOBD. That said premises, and all and singular the appurtenances hereinbefore mentioned and as- signed, now are, and from henceforth during the residue of said term of , by said lease granted, shall remain and continue unto said C. D., his ex- ecutors, etc., discharged and free from all charges and incumbrances of all and every kind and na- ture whatsoever. That the rents and covenants in said lease re- served and contained, which from any such breach or default in the payment of the money according to the condition or proviso aforesaid, shall grow due on the tenant's and lessee's part and behalf, to be paid and performed, and also the lease bearing date the day of , made by said , of the hereby mortgaged premises, which rent, from and after any such breach or default shall happen as aforesaid, shall become due and payable (and be forfeited) unto said C. D., his executors, administrators, and assigns. COVENANT LEASE MORTGAGED is VALID. That said lease at the time of the (execution, or) sealing and delivering of these presents is a good, sufficient, valid and effectual lease in law : that it is unforfeited and unsurrendered, and that said C. D. shall hold and enjoy said premises for and during the remainder of said term herein granted. COVENANT PAYMENT OF MONEY. That said A. B , for himself, his heirs, execu- tors, and administrators, does covenant, promise, and agree, to and with said C. D., his executors, administrators, and assigns, that he shall and will well and truly pay or cause to be paid said sum of dollars, with interest for the same, after the rate, and at the time and in the manner above limited for the payment thereof, and ac- cording to the true intent and meaning of the above-written condition and proviso. COVENANT PAYMENT OF TAXES, ETC. That said A. B. , his heirs, executors, and ad- ministrators, shall and will, from time to time, and at all times hereafter, and until the sum of dollais, and interest thereon, shall be fully paid unto said C. D. as aforesaid, pay and dis- charge all ^nd all manner of taxes and assess- ments which shall be laid or assessed thereupon, or upon any part thereof, or upon said C. D., his executors, administrators, or assigns, for or in respect thereof, or any part of the same, by au- thority of the (Congress of the United States, general assembly, or legislature, or court, or council, etc., etc., of the commonwealth, or State, or municipality, etc.) That he will save harmless and keep indemni- fied said C. D., his executors, etc., of and from all actions, charges, and damages which shall or may happen in anywise howsoever, by reason of the non-payment of said taxes or assessments. COVENANT POWER TO ASSIGN. Power to Assign the Lease Mortgaged. That said A. B. now has in himself "full power and good right to assign, grant, and mortgage said lease and the premises therein demised unto said C. D., his executors, etc., in the manner and form aforesaid. COVENANT REASSIGNMENT UPON PAYMENT, ETC. That upon full payment and discharge of said sum of dollars (and all taxes and assessments that shall be set upon said C. D., his executors, etc., in re-spect thereof, according to the condition or proviso aforesaid, and the true intent of these presents), he, the said C. D., his executors, etc , shall and will at any time after, upon the lawful request and at the proper costs and charges of said A. B., his executors, etc., deliver up this present conveyance (or mortgage) to be cancelled and made void, or otherwise reassign or reconvey all the right, title and interest in or to said premises therein conveyed unto said A. B., his executors, etc., or such other persons as he or they shall, by writing, under his or their hands (and seals), appoint or direct, by writing, under his or their hand and se~.l (and likewise to deliver up to him or them the said kif, wade by , to said A- 13.), freed and dis- charged of and from all incumbrances of what- ever nature or kind soever. COVENANT RECEIPT TO HE A GOOD DISCHARGE. For Purchase- Money. That the receipt or receipts of said C. D., or his executors, administrators or assigns, shall be a good and sufficient discharge to the purchasers of said premises, or any part thereof, for their purchase-money, and that such purchasers, their heirs, executors, or administrators, shall not after payment thereof, and having such receipt, be liable to see to its being applied upon or for the trusts or purposes of , in these presents ex- pressed, or by the same intended, or in any man- ner howsoever unsuitable, or liable for any loss, misapplication, or non-application of such pur- chase-money, or any part thereof (or be in an-- manner obliged to inquire into the necessity, expediency, or authority of or for any such sale or sales). COVENANT RIGHT TO CONVEY. That he, the said A. B., now has in himself good right and full power to give, grant, sell and convey the premises above (or hereinbefore) granted unto and to the use of said C. D., his heirs and assigns, in the manner aforesaid and according to the intent of these presents. COVENANT SALE ON DEFAULT, ETC. That if default shall be made in the payme.-t of said sum of money above mentioned, or an part thereof, or of the interest that may grow due thereon, or of any part thereof, and remain due and unpaid at the expiration of days after the same shall become due and payable ac- cording to the condition of said bond, then, and from thenceforth it shall be lawful for said party of the second part, his executors, administrators and assigns, to consider the whole of said princi- pal sum and sums as aforesaid, as immediately due and payable, and to enter into and upon all and singular said premises hereby granted, and to sell and dispose of the same (and all benefit and equity of redemption of said party of the first part, his heirs, executors, administrators, or assigns therein) at public auction according to law. That the attorney of said party of the first part is by thjse presents duly authorized, constituted, and appointed for that purpose to make and de- liver to the purchaser or purchasers thereof a good and sufficient deed or deeds of conveyance in law for the same, in fee simple ; and out of the moneys arising from such sale to retain the principal and interest which shall then be due and owing on said bond or obligation, together with the costs and charges of the sale of said premises, returning the overplus of said purchase- money., if any there shall be, unto said party of the first part, his heirs, executors, administrators or assigns. That said sale so made shall forever be a per- petual bar, both in law and equity, against said party of the first part, his heirs and assigns, and all other persons claiming or to claim said prem- ises, or any part thereof, by, from, or under him, them, or either of them. COVENANT SALE, ETC. ON DEFAULT, ETC. Provided always, and it is hereby expressly agreed between the parties hereto : That if default shall be made in the payment of said sum of dollars, and interest, or any part thereof, then and in such case it shall and inay be lawful for the said C. D., his heirs or as- signs, immediately on or at any time thereafter, without further authority from said A. B., his heirs or assigns, for that purpose than is herein contained, either to foreclose the equity of re- demption of said A. B., or without hindrance, molestation, or opposition, to make sale abso- lutely, or otherwise dispose of all and every the said mortgaged premises, or any or either of them, or any part thereof, with their appurte- nances; either together or in separate parcels, at one or at separate times, at his or their discre- tion, and at or for such sum or sums of money as he or they shall judge sufficient at any such sale or sales to buy the same or any part thereof, and re-sell the same without being answerable for any loss hereby to be sustained, and to convey CONVEYANCES. 345 and assume all and singular the premises which shall be sold, to the purchasers thereof, his or their heirs, executors, administrators, appointees or assigns, or otherwise, as he or they shall direct or require, freed and absolutely discharged of and from all equity and right of redemption whatso- ever. ANOTHER. That said C. D., his heirs, etc., may, at the ex- piration of from this date, or at any time thereafter, at his or their option, sell and dispose of said premises at public auction, giving due no- tice thereof, and shall apply the proceeds of such ale to pay said sum of dollars, and interest thereon, and to defray the necessary expenses of such sale ; and if, after paying said sum and in- terest and expenses, there should remain any bal- ance or surplus of said proceeds, then to pay the same to said A. B., or his legal representative. COVENANT SALE NOTICE OF, ETC. . Provided always, nevertheless : That no sale, or public notice or advertisement of or for any sale of said premises, or any part thereof, shall be made or given by said C. D., his heirs, etc. (nor any means by him or them taken for obtaining possession of, or receiving of the rents of said premises, or any part thereof), until the expiration of calendar months after notice in writing of his or their intention to sel' (obtain possession, or receive the rents of) said premises shall have been given, said A. B., his heirs or assigns, or left at his or their last or usual place of abode. For other COVENANTS, see MORTGAGE FORMS, below. Conclusions in Mortgages of Real Property. See DEEDS, above. Signed (and sealed) ; or, Signed, sealed, and acknowledged ; or, Witness our hands (and seals) ; or, Given under our hands (and seals) ; or, In witness whereof, we hereunto set our hands, etc. ; or In witness whereof, the parties to these pres- ents have hereunto set their hands, etc. ; or, In witness whereof, we have hereunto set our hands (and affixed our seals) (at ), this day oi ; or, In witness whereof, we have hereunto set our hands (or subscribed our names), the day and year first (or last) above written ; or, In witness whereof, A. B.,the party of the first part, and C. D., the party of the second part, in their own proper persons have hereunto respec- tively and severally set their hands and seals, this day of (or the day and year first, or last) above written. Signature (and Seals). See DEEDS, above. Attestation or Witness Clauses. See DEEDS, above. Acknowledgment of Mortgage* of Real Property. All instruments for the conveyance, or incumbrance, or in anywise affecting real estate or any interest there- in, must be recorded in the proper office for the record- ing of deeds, etc., in order to affect judgment creditors, subsequent purchasers, mortgagees, etc. See GENERAL STATUTES. SHORT FORM MORTGAGES OF REAL PROPERTY. MORTGAGE SIMILAR TO CHANCELLOR KENT'S DEED. See SHOUT FORM DEEDS, p. 303, ante. I, A. B., in consideration of , to me paid by C. D., do mortgage unto C. D. (and his heirs) the lot of land (bounded or described), etc. To secure the repayment (or performance) tf (state w/Mt, atounts, places, times, tic., etc.) 'Witness my hand and seal, this day of . A. B. [Seal.] For form of ACKNOWLEDGMENT, see that title. MORTGAGE SIMILAR TO CALIFORNIA DEED. I. A. B., grant and mortgage to C. D. all that real property, situated in county, of the State of California, bounded (or described) as follows, etc. To secure the repayment (or performance), etc. Witness my hand, this day of . A. B. For form of ACKNOWLEDGMENT, see that tide. MORTGAGE INDIANA FORM. See INDIANA, above. A. B. mortgages and warrants to C. D. (descriu- ing premises). To secure the repayment of (state what, the amounts, modes, places, time or times of 'payment, etc., etc.) Dated, signed, and sealed, this day of . A. B. [Seat.} For form of ACKNOWLEDGMENT, see that title. MORTGAGE AFTER VIRGINIA AND TEXAS DEED. A. B. doth bargain, sell, and mortgage unto C. D. (here follows a description of the real estate mort- gaged. ) To secure the repayment (or performance) of, etc. Witness the following signature and seal. A. B. [Seat.] For form of ACKNOWLEDGMENT, see that title. Mortgage of Real Property General Form. With Covenant to Pay, and Power to Sell on Default. This (conveyance, or indenture, or mortgage), made this day of , by (or between) A. B., of , of the first part, to (or and) C. D., of , of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of dollars, does grant, bargain, sell and convey unto the said party of the second part, and to his heirs and as- signs, all (here follows the description of the prem- ises mortgaged) ; together with all and singular the hereditaments and appurtenances thereunto be- longing, or in anywise appertaining. This conveyance is intended as a mortgage, to secure the payment of the sum of dollars, in from the day of the date of these presents, with interest, according to the condition of a certain bond, dated this day, executed by the said A. B., to the said party of the second part ; and these presents shall be void if such payment be made. But in case default shall be made in the pay- ment of the principal, or interest, as above pro- vided, then the party of the second part, his ex- ecutors, administrators and assigns, are hereby empowered to sell the premises above described"^ with all and every of the appurtenances, or any part thereof, in the manner prescribed by law ; and out of the money arising from such sale, to retain the said principal and interest, together with the costs and charges of making such sale ; and the overplus, if any there be, shall be paid by the party making such sale, on demand, to the party of the first part, his heirs or assigns, etc. In witness whereof, said party of the first part has hereunto set his hand (and sealj the day and year first above written. [Signature (and sea/.)] Executed in presence of For form of ACKNOWLEDGMENT, see that title. Mortgage of Real Property General Form. To all people to whom these presents shall come, greeting : Know ye : That I, A. B., of , for the consideration of dollars, received to my full satisfaction, do give, grant, bargain, sell and confirm unto the said C. D. (here follows the description of the prem- ises mortgaged] : To have and to hold the above-granted and bar- gained premises, with the appurtenances thereof, unto the said grantee, his heirs and assigns, to his and their proper use and behoof, forever. 346 CONVEYANCES. And also I, the said grantor, do, for myself, my heirs, executors and administrators, covenant with the said grantee, his heirs and assigns, that at and until the ensealing of these presents, I am well seized of the premises in a good, indefeasible estate in fee simple, and have good right to bar- gain and sell the same in manner and form as above written ; and that the same are free from all incumbrances whatsoever. And I, the said grantor, do, by these presents, bind myself and my heirs forever, to warrant and defend the above-granted and bargained premises to him, the said grantee, and his heirs and as- signs, against all claims and demands what- soever. In witness whereof, I have hereunto set my hand (and seal) this day of . The condition of this deed is such, that where- as the said A. B. is justly indebted to the said C. D. in the sum of dollars, as evidenced by his promissory note for said sum, of even date here- with, payable to the said grantee or order after date, with interest: Now, therefore, if said note shall be well and truly paid, according to its tenor, then this deed shall be void ; otherwise, to remain in full force and effect. [Signature (and seal.)] Signed, sealed, and delivered I in presence of / For form of ACKNOWLEDGMENT, see that title. Mortgage of Real Property General Form. With Covenants against Incumbrances : to Insure ; to Pay ; and Warrant and Defend, etc. Know all men by these presents: That I, A. B., of , in consideration of the sum of dollars, to me paid by C. D., of , the receipt whereof I do hereby acknowledge, do hereby give, grant, bargain, sell, and convey unto the said C. D., his heirs and assigns, forever, a certain piece or parcel of land, situate (lierefol- Itvjs the description), together with all the privi- leges and appurtenances to the same in anywise appertaining and belonging : To have and to hold the same to the said C. D., his heirs and assigns, to his and their use and be- hoof forever : And I, the said A. B., for myself, my heirs, ex- ecutors, and administrators, do covenant with the said C. D., his heirs and assigns, that I am lawfully seized in fee of the aforegranted prem- ises; that they are free from all incumbrances ; that I have good right to sell and convey the same to the said C. D., as aforesaid ; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said C. D., his heirs and assigns forever, against the lawful claims and demands of all persons. Provided nevertheless, that if the said A. B., his heirs, executors, or administrators, shall pay unto the said C. D., his executors, administrators or assigns, the said sum of , with lawful in- terest, on or before the day of , and shall keep the premises insured against fire in a sum not less than dollars, for the benefit of the said C. D., his executors, etc., in such insurance office in , as the said C. D. shall approve, then this deed, as also (a certain promissory note bearing even date with these presents, signed by the said A. B., whereby for value received he promises to pay to the said C. D the said sum and interest at the times afore- paid, shall be absolutely void to all intents and purposes i, ?> (a certain obligation orbond, bearing even date with these presents, given by the said A. B. to the said C. D. in the penalty of dollars, conditioned to pay the first mentioned sum and interest at the time aforesaid, shall both be void). In witness whereof, etc. For form of ACKNOWLEDGMENT, see that tide. Mortgage of Real Property General Form. This (conveyance, or indenture, or) mortgage, made this day of , between A. B. , of county, in the State of , of the first part, and C. D., of county, in the State of , of the second part, witnesseth : That said party of the first part, in considera- tion of the um of dollars, the receipt of which is hereby acknowledged, does by these presents grant, bargain, sell, and convey unto said party of the second part, his heirs and assigns, all the following described real estate, situated in the county of , and State of , to wit : (describing it). To have and to hold the same, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any- wise appertaining, forever. Provided always, and these presents are upon this express condition, that whereas, said A. B. has this day executed and delivered his certain promissory note in writing to said party of the second part, of which the following is {or are) copies (setting out a copy or abstract). above-described note mentioned, together with the interest thereon, according to the terms and tenor of the same; then these presents shall be wholly discharged and void ; and otherwise shall remain in full force and effect. But if said sum or sums of money, or any part thereof, or any interest thereon, is not paid when the same is due ; and if the taxes and assess- ments of every nature which are or may be as- sessed and levied against said premises or any part thereof are not paid when the same are by law made due and payable, then the whole of said sum and sums, and interest thereon, shall, by these presents, become due and payable, and said party of the second part shall be entitled to the possession of said premises. In witness whereof, the said party of the first part has hereunto set his hand, the day and year first above written. A. B. Executed in presence of For form of ACKNOWLEDGMENT, see that title. Mortgage of Real Property General Form. With Waiver, Attorney's Fees, etc. This ''conveyance, or indenture, or) mortgage, made this day of , between A. B., of county, in the State of , of the first part, and C. D., of county, in the State of , of the second part, witnesseth : That said party of the first part, in considera- tion of the sum of dollars, etc. (this paragraph. is tlie same as in the form above). To have and to hold the same, together, etc. (this paragraph is the same as in the form above). Provided always, and these presents, etc. (this paragraph is the same as in the form above). Now, if said party of the first part shall pay or cause to be paid to said party of the second part, his heirs or assigns, said sum of money in the above-described note mentioned, together with the interest thereon, according to the terms and tenor of the same; then these presents shall be wholly discharged and void ; and otherwise shall remain in full force and effect. But if said sum or sums of money, or any part thereof, or any interest thereon, is not paid when the same is due ; and if the taxes and assess- ments of every nature, which are or may be as- sessed and levied against said premises, or any part thereof, are not paid when the same are by law made due and payable, then the whole of said sum and sums, and interest thereon, shall and by these presents become due and pay- able, and said party of the second part shall be entitled to the possession of said premises. And said party of the first part further agree, upon default of the above covenants and condi- tions, or any or either of them, to pay the sum of dollars, for mortgagee or his assigns' at- torney's fees for foreclosure of this mortgage, which sum shall be a lien upon said premises, added to the amount of said obligation, and se- cured by these presents, and shall be included in and operate as a part of the judgment upon fore- closure of this mortgage. Appraisement, exemption, and valuation art waived. In witness whereof, etc. For form of ACKNOWLEDGMENT, see that title. CONVEYANCES. 347 of Ecal Property General Form. With Interest, Tax, Insurance, Attorney' s Fees, Waiver of Appraisement, Exemption and Valuation, with Power of Assignment, Sale Clauses, etc. This indenture, made this day of .be- tween A. B., of county, in the State of , party of the first part, and C. D., of county, in the State of , of the second part, wit- nesseth : That said party of the first part, in considera- tion of the sum of dollars, etc. (this paragraph is the same as in the form above). To have and to hold the same, together, etc. (this paragraph is the same as in the form above). Provided always, and these presents are upon this express condition. That whereas, said A. B. has this day executed and delivered his certain promissory note in writ- ing to said party of the second part, of which the following is (or are ) copy (here copy the note or notes}. Now, if said party of the first part shall pay or cause to be paid to said party of the second part, his heirs or assigns, said sum of money in the above-described note mentioned, together with the interest thereon, according to the terms and tenor of the same ; and keep the buildings erected and to be erected upon the lands above conveyed, insured against loss or damage by fire, in at least the sum of dollars, and by insurers, and at some insurance office to be approved by said party of the second part, and assign the policy and certificates thereof to the said party of the second part (and in default of said insurance it shall be lawful for said party of the second part to effect such insurance, and the premium or premiums paid for effect- ing the same, together with the costs and charges inci- dent thereto, with interest thereon at the rate of per cent, per annum, from the date of payment thereof until paid, shall be a lien upon said mortgaged premises, added to the amount of said obligation, and secured by these presents, and shall be included in and operate as a part of the judgment upon foreclosure of this mortgage), then these presents shall be wholly discharged and void ; and otherwise shall remain in full force and effect. But if said sum or sums of money, or any part thereof, or any interest thereon, is not paid when the same is due ; and if the taxes and assess- ments of every nature which are or may be as- sessed or levied against said premises or any part thereof are not paid when the same are by law made due and payable; and if said insurance is not effected, and the policy and certificates are not assigned, as aforesaid, then, and upon default of these provisions and covenants, or any or either of them, the whole of said sum and sums, and interest thereon, shall and by these presents be- come due and payable, and said party of the sec- ond part shall be entitled to the possession of said premises. And the said party of the first part further agree, upon default of the above covenants and conditions, or any or either of them, to pay the sum of dollars, for the mortgagee or his as- signs' attorney's fees for foreclosure of this mort- gage, which sum shall be a lien upon said prem- ises, added to the amount of said obligation, and secured by these presents, and shall be included in and operate as a part of the judgment upon foreclosure of this mortgage. Appraisement, exemption, and valuation are ".vaived. In witness whereof, the said party, etc. For form of ACKNOWLEDGMENT, see that title. Mortgage of Real Property <*eucral Form. In -which the mortgagor waives his right under the act of assembly or legislature, so that on his default, for thirty days, to pay any interest falling due, the whole debt (principal and interest) shall become due und collectable immediately, and the mortgagee shall have the right to issue a -writ of scire facias, and at once proceed to collect the whole sum due. This (conveyance, or indenture, or} mortgage, made the day of , in the year of our Lord , between A. B., of (the city of ), in - county, and State (or Commonwealth) of , of the first part, and C. D., of said city, county, and State (or Commonwealth), aforesaid, of the other part, witnesseth : That whereas the said A. B., in and by a certain obligation or writing obligatory, under his hand and seal duly executed, bearing even date here- with, stands bound unto the said C. D. in the sum of (five thousand) dollars, lawful money of the United States of America, conditioned for the pay- ment of the just sum of (two thousand and five hun- dred) dollars, like lawful money as aforesaid, in (five) years from the date thereof, together with lawful interest for the same, the first payment of interest to be made on the day of next en- suing the date thereof, and thereafter (half-yearly) from that day, without any fraud or further de- lay : Provided, however, and it is thereby expressly agreed : That if at any time default shall be made in the payment of interest on said principal for the space of thirty days after any payment thereof shall fall due, then and in such case the whole principal debt aforesaid shall, at the option of the said C. D., or his executors, administrators, or assigns, become due and payable immediately, and payment of said principal and a-11 interest thereon may be enforced and recovered at once, anything therein contained to the contrary there- of notwithstanding, as in and by the said in part recited obligation and the condition thereof, re- lation being thereunto had, may more fully and at large appear : That the said A. B., as well for and in consid- eration of the aforesaid debt or sum of (two thou- sand and five hundred) dollars, and for the better se- curing the payment of the same, with interest, unto the said C. D., his heirs, executors, admin- istrators, and assigns, as well in discharge of the said in part recited obligation, as for and in con- sideration of the further sum of one dollar, unto the said A. B. in hand well and truly paid by the said C. D., at and before the sealing and delivery hereof, the receipt whereof is hereby acknowl- edged, hath granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by these presents doth grant, bargain, sell, alien, enfeoff, release, and confirm, unto the said C. D., and his heirs and assigns, all that messuage, piece or parcel of land, etc. {here give the description of the land conveyed} ; together with all and singular the rights, liberties, privileges, improvements, heredi- taments, and appurtenances whatsoever, there- unto belonging, 'or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof. To have and to hold the said messuage, piece or parcel of land above described, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the said C. D., his heirs and assigns, to and for the only proper use and behoof of the said C. D., his heirs and assigns, forever. Provided always, nevertheless, that if the said A. B., his heirs, executors, administrators, or as- signs, do and shall well and truly pay or cause to be paid unto the said C. D., his executors, ad- ministrators, or assigns, the aforesaid debt or sum of (two thousand five hundred) dollars on the day and time hereinbefore mentioned and ap- pointed for payment of the same, together with lawful interest as aforesaid, without any fraud or further delay, and without any deduction, de- falcation, or abatement to be made of anything for or in respect of any taxes, charges, or assess- ments whatsoever, that then and from thence- forth, as well this present indenture and the estate hereby granted, as the said in part recited obligation, shall cease, determine, and become void, anything hereinbefore contained to the con- trary thereof in anywise notwithstanding. Provided further, in case of default in the pay- ment of the interest at any time falling due, for the space of thirty days as aforesaid, or any part thereof, that thereupon it shall be lawful for the said C. D., his executors, administrators, or as- signs, to sue out forthwith a writ of scire facias CONVEYANCES. upon this present indenture of mortgage, and to proceed, at once thereon to recover the principal moneys hereby secured, and all interest thereon, according to law, without further stay, any law or usage to the contrary notwithstanding. And further, the said mortgagor doth hereby, for himself, his heirs, executois, administrators, and assigns, expressly waive, relinquish, and dis- pense unto C. D., the said mortgagee, his heiis, executors, administrators, and assigns, all and every provision and provisions in the act of as- sembly (or legislature) of the State (or Common- wealth) of (Approved or) parsed on the day of , entitled "An act," etc., so far as the same may exempt the said hereby mortgaged lot of land and appurtenances, and a.iy part thereof, from levy and sale, by virtue of a.iy writ of exe- cution that may be issued upon uny judgment that may be obtained or entered in soy action for the recovery of the mortgage-money r.erein men- tioned to be paid, and any interest due therton, and of the costs of such action and execution : so that it shall be lawful for C. D.,the sa:d mort- gagee, his heits, executors, administrators, or as- signs, to proceed by execution to levy upon and sell the said hereby mortgaged lot of ground, and every part thereof, with the appurtenances as aforesaid, in the same manner, and to. the same extent, and to the same effect, to all intents and purposes, as if the said act of assembly (or legislaiure) had not been (approved or) passed. In witness whereof, the said parties to these presents have interchangeably set their hands and seals hereunto. Dated the day and year first above written. [ Witnesses. ] (Signatures and Seals?) BOND TO ACCOMPANY THE ABOVE MORTGAGE. Know all men by well and truly pay or cause to be paid unto the above-named C. D.,or his certain attorney. executors, administrators, or assigns, the just sum of (two thousand and five hundred) dollars, like lawful money as aforesaid, in (five) years from the date hereof, together with lawful interest for the same, the first payment of interest to be made on the day of next ensuing the date hereof, and thereafter (half-yeaily) from that day, without any fraud or further delay, then the above obligation to be void, or else to be and re- main in full force and virtue : Provided, however, and it is hereby expressly agreed, that if at any time default shall be made in the payment of interest on the said principal for the space of thirty days after any payment thereof shall fall due, then and in such case the whole principal debt aforesaid shall, at the option of the said C. D. , or his administrators or assigns, become due and payable immediately, and pay- ment of said principal and all interest thereon may be enforced and recovered at once, anything herein contained to th contrary thereof not- withstanding. A. B. [Seal.} Signed, sealed, and delivered) in presence of j WARRANT OP ATTORNEY TO ACCOMPANY THE ABOVE KOND, WHERE ir 13 DESIGNED TO AUTHORIZE THE ENTERING OP JUDGMENT. To A. A., Esq., attorney of the court, at , in the county of , in the State (t the ai.tual amount of the debt or sum to be te> ured\, on the day of , with interest at the rate of per cent, per annum, payable six month* from the date hereof, and every months afterwards, until the said sum is paid, then the above obligation shall be void and of no effect ; and otherwise it shall remain in full force. And I further agree and covenant, that if any payment of interest be withheld or delayed for days after such payment shall fall due, the said principal sum and all arrearage of interest thereon, shall be and become due immediately on the expiration of days, at the option of said C. D., his executors, administrators, or as- signs. A. B. [Seal. \ Executed and delivered ) in presence of / mortgage of Real Property Dower and Homestead Exemption Released. Without Power of Sale and without Warranty. This (conveyance, or indenture, or) mortgage, made this day of , between A. B., of county, State of , and W., wife of said A. B., parties of the first part, and C. D., of county, State of , party of the second part, witnesseth . That whereas, the said party of the first part is justly indebted to the said party of the second part in the sum of , secured to be paid by a certain promissory note (or bond, describing it) That the said parties of the first part, for the better securing the payment of the money afore- said, with interest thereon, according to the tenor and effect of the said note (or bond) above men- tioned ; and also in consideration of the further sum of one dollar, to them in hand paid by the said party of the second part, at the delivery of these presents, the receipt of which is hereby acknowl- edged, have and by these presents do grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns, forever, all that (here describe t/.e premises tomeyed). To have and to hold the same, together with all and singular the tenements, hereditaments, privileges and appurtenances thereunto belong- ing or in anywise appertaining. And also all the estate, interest and claim whatsoever in law as well as in equity, which the parties of the first part have in and to the premises hereby conveyed unto the said party of the second part, and his heirs and assigns, and to their only proper use, benefit and behoof. And the said parties of the first part hereby expressly waive, release, relinquish and convey unto the said party of the second part, and his heirs, executors, administrators, and assigns, all right, title, claim, interest and benefit whatever, in and to the above-described premises, and each and every part thereof, which is given by or re- sults from all laws of this State relating to the exemption of homesteads. Provided always, and these presents are upon this express condition ; That if the said party of the first part, or his heirs, executors, or administrators shall well and truly pay or cause to be paid to the said party of the second part, or his heirs, executors, adminis- trators, or assigns, the aforesaid sum of money, with such interest thereon, at the time and in the manner specified in the above-mentioned note (or boiul) according to the true intent and meaning thereof, then in that case these presents and everything herein expressed shall be absolutely void and of no effect. In witness whereof, the said parties of the fitst part hereunto set their hands (and seaU) the day and year first above written. A. B. [Stai.\ Signed, sealed, and delivered t W. B. |6 of the town of , county of , and State a^resaid, do sell and convey to the said C. D. the following free of incumbrance, and against any adverse claims : Upon condition that if the said A. B. shall pay to the said C. D. dollars and interest, in from date, agreeably to a promissory note of this date, for that sum, payable to the said C. D., or order, on demand, with interest, this deed shall be void ; otherwise in full force and effect. That, until the condition of this instrument it broken, the said property may remain in posses- sion of the said A. B., but after condition broken the said C. D. may at his pleasure take and re- move the same, and may enter into any building or premises of the said A. B. for that purpose. Witness our hands and seals, this day of . A. B. \Seat.\ C. D. [Stat.\ Executed and delivered in) presence of W. S. ) This mortgage must be recorded. CONVEYANCES. 357 Mortgage of Personal Property or Chattel Mortgage. This agreement (or indenture, or mortgage), made the day of , between A. B., of the first part, and C. D. , of the second part, wit nesseth : That the said party of the first part, in consid- eration of the sum of dollars, has sold and by these presents does convey unto said party of the second part, the following described goods, chat- tels, and property (describe them particularly, or refer to them in the schedule) now in my possession at the of aforesaid ; together with all ac- cessories, and all the estate, title, and interest, of the said party of the first part therein. This sale is intended as a security for the pay- ment of one hundred and ten dollars, with inter- est, on or before the expiration of one year from the date hereof ; and the additional sum of one hundred and forty dollars, with interest, on the day of ; which payments, if duly made, will render this conveyance void. And if default shall be made in the payment of the principal or interest above mentioned, or any part thereof, then the said party of the second part, and his assigns, are hereby authorized, pur- suant to statute, to sell the goods, chattels, and property, above granted, or so much thereof as will be necessary to satisfy the amount then due, with the costs and expenses incurred by the said party of the second part, and his assigns, for and by reason of such default. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. A. B. [Seal.] Sealed, signed, and delivered \ in presence of W. S. J Mortgage of Personal Property or Chattel Mortgage. Whereas, I, A. B., of the town of , in the county of , and State of , am justly in- debted unto C. D., of , in the said county, in the sum of dollars, on account, to be paid on demand (or on the day of ), with interest from this date Now, therefore, in consideration of such in- debtedness, and in order to secure the payment of the same, as aforesaid, I do hereby sell, assign, transfer and set over unto the said C. D., his ex- ecutors, administrators, and assigns (here describe the property or refer to schedule}. Provided, however, that if the said debt and interest be paid, as above specified, this sale and transfer shall be void ; and this conveyance is also subject to the following conditions: The property hereby sold and transferred is to remain in my possession until default be made in the payment of the debt and interest aforesaid, or some part thereof; but in case of a sale or dis- posal, or attempt to sell or dispose of the same, or a removal of or attempt to remove the same from , or an unreasonable depreciation in value (or if from any other cause the security shall become inad- equate), the said C. D. may take the said prop- erty, or any part thereof, into his own possession. Upon taking said property, or any part thereof, into his possession, either in case of default, or as above provided, the said C. D. shall sell the same at public or private sale ; and after satisfying the aforesaid debt and the interest thereon, and all necessary and reasonable costs, charges, and ex- penses incurred by him, out of the proceeds of such sale, he shall return the surplus to me or my representatives. In witness whereof, I have hereunto set my hand and seal, this day of . Executed in presence of) A. B. [Seal.} W.S. / Mortgage of Personal Property or Chattel Mortgage. Know all men by these presents: That A. B. (of ), of the first part, is indebted to C. D. (of ), of the second part, in the sum of dollars, to be paid as follows : (stating- time, flace, amount, and manner of payment}. Now, therefore, in consideration of such indebt- edness, and to secure the payment of the same, as aforesaid, said party of the first part does hereby sell, assign, transfer, and set over to saii party of the second part, the property described in the following schedule, viz.: (describing it). Provided, however, that if said debt and inter- est be paid, as above specified, this sale and transfer shall be void. The property sold is to remain in possession of said party of the first part, until default be made in the payment of the debt and interest aforesaid, or some part thereof; but in case of a sale or disposal, or attempt to sell or dispose of the same, or a removal of or attempt to re- move the same from (name location of property r place where it is to remain), or an unreasonable depreciation in the value; or if, from any other cause, the security shall become inadequate, the 1 said party of the second part may take such property, or any part thereof, into his own pos- session. And upon taking said property into his posses- sion, either in case of default, or as above pro- vided, said party of the second part shall sell the same at public or private sale ; and after satisfy- ing the aforesaid debt and interest thereon, and all necessary and reasonable costs, charges, and expenses incurred, out of the proceeds of sale, he shall return the surplus to said party of the first part, or his legal representatives. And if, from any cause, said property shall fail to satisfy said debt and interest aforesaid, said party of the first part hereby agrees to pay the deficiency. In witness whereof, the said party of the first part has hereunto set his hand, this day of . A. B. Executed in presence of Mortgage of Personal Property or Bill of Sale and Chattel Mortgage. Know all men by these presents : That I, A. B., in consideration of one dollar, to me in hand paid by C. D. , the receipt whereof I hereby acknowledge, have, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said C. D. and his assigns forever, the following goods, chattels, and property, to wit : (specify the articles, or refer to them in the schedule annexed). Whereas, I, the said A. B. , am justly indebted to the said C. D. in the sum of one hundred and ten dollars on account, for money had and re- ceived, and goods sold and delivered (or on a promissory note, dated, etc., and due months from date), to be paid to the said C. D., or his assigns, on the day of , with the legal interest thereon from the day of the date hereof: Now the condition of the above sale is such, that if the said A. B. shall well and truly pay to the said C. D., or to his agent, attorney, or assignee, the above-mentioned demand (or demands), at the time, and in the manner and form, above ex- pressed, and shall keep and perform the cove- nants and agreements above contained, on his part to be kept and performed, according to the true intent and meaning thereof, then the above bill of sale shall be void : otherwise, on the neg- lect and failure of the said A. B. to pay the said demand (or demands), or to keep and perform the said covenants and agreements as above ex- pressed, then, and in that case, the said C. D. and his assigns are hereby authorized and empowered to sell the above-described goods, chattels, and property (or the goods, etc., described in the schedule hereto annexed, as aforesaid), or any part thereof, at public or private sale, at his or their option, and to retain from the proceeds of such sale, in his or their hands, sufficient to pay and satisfy the whole amount of the above-mentioned demand (or demands), with the legal interest thereon which shall be due at the time of such sale, and all costs, charges, and expenses, incurred by the said C. D., or his assigns, in consequence of the neglect and failure of the said A. B., as aforesaid ; rendering the overplus, if any, to the said A. B., or to his heirs, executors, administrators, or as- signs, on demand. The said C. D. and his assigns are hereby authorized, for further security, to take the said goods, chattels, and property, into his or their 358 CONVEYANCES. possession, at any time he or they may think proper. In witness whereof, etc. Mortgage of Personal Properly, or. Chattel Mortgage. This agreement (or indenture, or mortgage), made this day of , between A. B., of , of the one part, and C. D.,of , of the other part, witnesseth : That the said A. B., for and in consideration of , to him paid by the said C. D. , the receipt of which is hereby acknowledged, by these pres- ,ents does grant, etc., unto the said C. D., his ex- ecutors, etc., all and singular the goods, furni- ture, and household stuff, hereinafter particularly mentioned and expressed, that is to say, one, etc., etc. {here insert fully an account of nil the goods mortgaged). To have and to hold all and singular the said goods, etc., hereinbefore granted, etc., unto the said C. D., his executors, etc., to the only proper use and behoof of the said C. D., his executors, etc., forever. Provided always, and these presents are upon this condition: That if the said A. B., his ex- ecutors or administrators, shall and do well and truly pay unto the said C. D., his executors, etc., the full sum of , with interest for the same after the date of , on or before the da/ of , then these presents shall cease, de- termine, and be utterly void ; anything herein contained to the contrary notwithstanding. COVENANT MORTGAGOR TO KEEP POSSESSION OF THE GOODS UNTIL THE BREACH OF THE CONDITION. And it is covenanted and agreed, between the said parties, that until default shall be made in payment of the said sum of , and interest, it shall be lawful for the said A. B., and his assigns, to hold, enjoy, and use the goods above mort- gaged as aforesaid, without the hindrance or in- terruption of the said C. D., or his assigns. COVENANT TO REDELIVER THE GOODS UPON RECEIPT OF THE MORTGAGE MONEY. And the said C. D., for himself, his heirs, exec- utors and administrators, doth covenant and agree to and with the said A. B., his executors, and ad- ministrators, that he, the said C. D. , his executors, administrators, or assigns, shall and will, immedi- ately upon the receipt of the said sum of and interest as aforesaid, at the day and time above limited for the payment thereof, deliver, or cause to be delivered, unto the said C. D., his executors, etc., all and singular the goods, etc., above granted, and which are now, at the time of the executing of these presents, received by the said C. D., of and from the said A. B., in as good case, plight, and condition as the same and every of them now are at this present time. COVENANT TO WARRANT THE GOODS. And the said A. B., for himself, his executors, and administrators, all and singular the said goods, etc., by these presents granted, etc., unto the said C. D., his executors, etc., against him, the said A. B. , his executors and administrators, and against all and every other person and per- sons whatsoever, shall and will warrant and for- ever defend by these presents. Adverse Claim. See NOTICE OP, below. Mortgage of Personal Property, or, Chattel Mortgage. Covenants, Descriptions, Possession Warranty, etc. Know all men by these presents : That I, A. B., of , in the county of , and State of , party of the first part, for securing the payment of the sum of money hereinafter mentioned, and in consideration of the sum of one dollar, to me paid by C. D., of , aforesaid, party of the second part, the receipt whereof I do hereby acknowledge, have and by these pres- ents do bargain, sell, grant, and convey unto the said party of the second part, his executors, ad- ministrators, and assigns, as follows: All the ashes now being in the ashety in the possession of th said A. B. , at ; (Or thus, all the stock of books, magazine*, periodi- cals, and stationery in the store of the said A. B. at ): (Or thus, all the household goods and furniture, and other articles mentioned in a schedule annexed here- to, and contained in the house of the said A. B.,al (Or thus, all and singular the goods and stock of goods and merchandise, consisting of whips, lashes, and materials therefor, now in the store of the party of the first part, at No. , street, in the city of , and in the factory of the said party of the first part, at , in the State of . (Excepting and reserving therefrom all goods sold, or agreed to be sold and packed, to be delivered to pur- chasers.) All the furniture and movable fixtures in said store belonging to the party of the first part (a schedule of said goods and chattels to be made by the party of the first part, and annexed hereto, with all con- venient speed) ; To have and to hold the same unto the said party of the second part, his executors, adminis- trators, and assigns, forever. (If the mortgage is a second mortgage, being subject to a prior one, insert here : subject, however, to a prior mortgage to E. F., dated the day of , to secure (state what). And I, for myself, my heirs, executors, and ad- ministrators, do covenant and agree, to and with the said party of the second part, to warrant and defend the said described goods hereby sold, unto the said party of the second part, his executors, administrators, and assigns, against all and every person and persons whatsoever (subject as afore- said;. Upon condition, that if the said party of the first part shall and do well and truly pay, or cause to be paid unto the said party of the second part, his executors, administrators, or assigns, the sum of dollars and interest thereon, on the day of next (or otherwise), then this conveyance shall be void ; otherwise to remain in full force. And the said party of the first part, for himself, his executors, administrators, and assigns, do-s covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, to make punctual payment of the money hereby secured. And in case default shall be made in payment of the said sum above mentioned, or any part thereof, or of the interest thereon, on any day when the same ought to be paid (then the wlio.c sum shall at the election of the party of the second part become immediately due and payable ; and), it shall be lawful for and the said party of the first part does hereby authorize and empower the said party of the second part, his executors, adminis- trators, and assigns, with the aid and assistance of any person or persons, to enter and come into and upon the dwelling-house and premises of the said party of the first part, and such other place or places as the said goods and chattels are or may be held or placed, and take and carry away the said goods and chattels, to sell and dispose of the same, or so much as shall be necessary, for the best price they can obtain, and out of the money to retain and pay the said sum above mentioned, with the interest and all expenses thereon, rendering the overplus (if any) unto the said party of the first part, his executors, admin- istrators, and assigns. And until default be made in the payment of the aforesaid sum of money (or some part thereof, or interest thereon), the said party of the first part is to remain and continue in quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same, unless the said party of the second part, his executors, administrators, or assigns, shall sooner choose to demand the same ; and until such demand be made, the possession of the said party of the first part shall be deemed the possession of an agent or servant, for the sole benefit and advantage of his principal, the said party of the second part. a-This is a sufficient description; 9 Barb. 630; GaxU- ner vs. McEwen, 19 N. Y. (5 Smith) 12 j. CONVEYANCES. 359 In witness whereof, I have hereunto met my hand (and seal), this day of . A. B. Executed and delivered ) in presence of W. S. / Mortgage of Personal Property, or, Chattel Mortgage.* Goods and Chattels, etc., in and about the Mortgagor's Dwelling-House. This (agreement, or indenture, or mortgage), made this day of , between A. B. , of , of the one part, and C. D.,of , of the other part, witnesseth : Whereas there is due and owing from the said A. B. to the said C. D. the sum of $200 : Now, in consideration of the covenant herein- after contained on the part of the said C. D., and for better securing to him the payment of the said sum of $200 and interest thereon, as herein- after mentioned, he, the said A. B., by these presents, does bargain and sell and assign unto the said C. D., his executors, administrators, and assigns, all and every the goods, utensils and im- plements which are now belonging to the dwell- ing-house, outhouses and estate of the said A. B., situate and being in street, in said B. , now in the occupation of the said A. B. , and which are particularly enumerated and described in the schedule to these presents, hereunder written ; and all the right, title and interest of the said A. B. in and to the said goods and chattels and every part and parcel thereof. To have and to hold the bargained premises unto the said C. D., his executors, administrators and assigns, as his and their own proper goods and chattels. Provided, nevertheless, that, in case the said A. B., his executors, etc., shall pay to the said C. D., his executors, etc., the sum of $200, on the day of , or at such earlier day or time as the said C. D., his executors, etc., shall appoint for the payment thereof, in and by a notice in writing, to be given to the said mortgagor, his ex- ecutors or administrators, or left at his or their last and usual place of abode, at least months before the day or time so to be appointed for pay- ment as aforesaid ; and do and shall, in the mean- time until the repayment of the said principal sum, well and truly pay to the said C. D., his ex- ecutors, etc., interest thereon, at the rate of per cent, per annum, by equal half yearly pay- ments on , and on , in every year, and also a proportional part of such interest, for the frac- tional period of a half year, if any, which shall elapse between the last half yearly day of pay- ment, and the expiration of the notice so to be given by said C. D., his, etc., such proportional part to be paid immediately on the expiration of such notice, and such several payments afore- said to be made without any deduction or abate- ment whatsoever : Then these presents and every- thing herein contained shall cease and be abso- lutely void ; anything hereinbefore contained to the contrary notwithstanding. And it is hereby also declared and agreed, by and between the said parties to these presents: That, after default shall be made by the said A. B., his executors, or administrators, in payment of the sum of $200, and interest, then, and in such case, it shall be lawful for the said C. D., his, etc., peaceably and quietly to take possession of and thenceforth to hold and enjoy all and every the goods and chattels, and premises hereby as- signed : And also to sell and dispose of the same, and every part thereof, for such price or prices as can be reasonably had or gotten for the same ; And to receive and take the moneys to arise by such sale thereof, and therewith retain to and re- imburse himself and themselves, the said C. D., his executors, administrators, or assigns, all costs, charges, and expenses, which he or they may incur in and about making any such sale or sales, and also in and about the receipt and re- covery of the said sum of $200, and interest, re- spectively; And, in the next place, to retain and reimburse himself and themselves, the said C. D. , his execu- tors, etc., the * a id sum of $200, and the Interest thereof, or so much thereof as shall then remain unsatisfied, and after having reimbursed him- self and themselves respectively, such costs, charges, and expenses, sum and sums of money, as aforesaid, to render to, and account for the surplus of the money arising from such sale as aforesaid (if any) unto the said A. B., his execu- tors, administrators, or assigns. POSSESSION UNTIL DEFAULT, ETC., MORTGAGOR TO RETAIN. And it is hereby also declared and agreed by and between the said parties to these presents: That until default shall happen to be made in payment of the said principal sum of $200, at the day or time hereinbefore appointed for the payment thereof, contrary to the tenor and effect of the proviso hereinbefore contained ; or until default shall be made in payment of the interest of the said principal sum or some part thereof, on some or one of the days or times hereinbefore appointed for payment thereof, contrary to the same proviso ; and until, in respect of the said interest, notice shall be given by the said C D., his executors, administrators or assigns, unto the said A. B., his executors or administrators, or left for him or them, at his or their usual place or places of abode, requiring the payment of such interest, it shall be lawful for the said A. B., his executors or administrators, to hold, make use of, and possess the said goods and chattels, here- by assigned, without any manner of hindrance or disturbance of or by him, the said C. D., his executors, administrators, or assigns. NOT TO SUE UNTIL DEFAULT. That he, the said C. D.,his executors or ad- ministrators, shall not, nor will, until default shall be made in payment of the said sum of $200 and interest, or some part thereof, on some or one of the days or times limited for payment thereof in and by the proviso for redemption hereinbefore contained, commence or institute any action, suit or process against the said A. B., his executors or administrators, for recovery of the said debt or any part thereof. In witness whereof, etc. Mortgage of Personal Property, Chat- tel Mortgage, or Bill of Sale. Maintenance for Life. This (agreement, or indenture, or) mortgage, made on the day of , between A. B., of , etc., of the first part, and C. B., of the same place, of the second part, witnesseth : That the party of the first part, in considera- tion of the sum of dollars, to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged, and for other good and lawful considerations him thereunto moving, has bargained and sold, and by these presents does grant and convey ; etc. And in consideration of the premises, the party of the second part does hereby covenant and agree, to and with the party of the first part, his executors and administrators, that he will sup- port and maintain, and comfortably and suffi- ciently clothe the party of the first part, and in all respects care and provide for him, for and during the rest, residue, and remainder of his natural life ; and that he, the said party of the second part, shall and will pay unto the said party of the first part the sum of dollars on the first day of January in each and every year hereafter : Provided, however, that the said party of the second part shall be forever released and dis- charged from the covenants above contained, on his part to be kept and performed, if the said party of the first part shall refuse to reside in the county of aforesaid, except such refusal be occasioned by inability to obtain comfortable and sufficient board, lodging, and maintenance in the said county. In witness whereof, the said parties have here- a-A vessel at sea may be mortgaged, but possession must be taken as soon as possible to render the mort- gage complete. Portland Bank vs. Stubbs // /., t Mass. 422. CONVEYANCES. onto set their hands and seals the day and year first above written. A. B. i.W/. I Executed and delivered \ C. D. [Seal.] in presence of W. S. J Memorandum. See SALE, below. Morljjajjo of Personal Property, or, Chattel Mortgage. This notice should be posted with or near the notice given of the sale, as well as notice of adverse claim read at the sale in order to warn purchasers. To whom it may concern : I, C. D., have a mortgage, duly filed, on the property of A. B. now offered for sale, which is of prior date to the mortgage under which this sale takes place, and dollars, with interest thereon, is unpaid, and is now due and collecta- ble. Whosoever buys this property buys it sub- ject thereto. C. D. Notice. See SECURITY, below. Mortgage, etc. Sale Memorandum. (Schedule of articles purchased, -with terms of pur - thaser.) I have purchased the above property for the sum of dollars, subject to the terms above. (Signed) P. R. Renewal Affidavit for Renewing: and Continuing; Chattel Mortgages. 1 State of , county, ss. I do solemnly swear that I am one of the within- named mortgagees, and that the property de- scribed in the within mortgage was, on the day of , conveyed to to secure the pay- ment of dollars, of which sum there is yet due and unpaid the sum of . So help me God. C. D. Sworn to before me, this day of , A. D. J. P., Justice of the Peace. ANOTHER. State of , county, ss. I do solemnly swear that I am one of the within- named mortgagees, and that the property de- scribed in the within mortgage was, on the day of , conveyed to to indemnify egainst liability as surety for the within-named mortgagor, on a certain , on which I am surety; and that the within mortgage was taken in good faith to indemnify against any loss that may result thereof. So help me God. C. D. Sworn to before me, this day of . J. P., Justice of the Peace. Renewal Annual Statement of Mort> gagee's* Interest, etc.* I, C. D., the mortgagee mentioned in the mort- gage of which the annexed (or within) is a true copy, do hereby certify that the sum of dol- lars and interest thereon from the day of , is still due on said mortgage. C. O. Dated , the day of . ANOTHER I, C. D., the mortgagee named in the mortgage of which the annexed (or within) is a true copy, do hereby certify that the following notes, men- tioned in said mortgage, all dated the day of , are wholly unpaid, to wit : (enumerating them). And I further claim the said mortgaged prop- erty as security to me against any liability for or on account of my having indorsed the note of E. P. therein mentioned, which note is still un- paid. C. D. Dated , the day of . Mortgage of Personal Property, or, Chattel Mortgage, with Power of Sale. Know all men by these presents : That I, A. B.,of- f- , in county, and State , in consideration of dollars to me paid a-This affidavit must be made within thirty days next preceding the expiration of one year from the filing of this mortgage, and each year thereafter, or after the ex- piration of one year from such filing, will be void as agamst subsequent purchasers, and mortgagees in good by C. D., of , in county, and State of , do hereby grant, bargain, and sell unto the said C. D., and his assigns, forever, the following goods and chattels, to wit : (here give list or sche- dule). To have and to hold all and singular said goods and chattels unto the mortgagee herein, and his assigns, forever. And the mortgagor herein, for himself and for his heirs, executors, and administrators, does hereby covenant to and with the said mortgagee and his assigns, that said mortgagor is lawfully possessed of the said goods and chattels, as of his own property ; that the same are free from all incumbrances, and that he will warrant and defend the same to him, the said mortgagee and his assigns, against the lawful claims and de- mands of all persons. Provided, nevertheless: That if the said mortgagor shall pay to the mortgagee the sum of dollars, on the day of , at , then this mortgage is to be void, otherwise to remain in full force and effect. And provided further : That until default be made by the said mortga- gor in the performance of the condition afore- said, it shall and may be lawful for him to retain the possession of the said goods and chattels, and to use and enjoy the same; but if the same or any part thereof shall be attached or claimed by any other person or persons at any time before payment, or the said mortgagor or any person or persons whatever, upon any pretence, shall at- tempt to carry off, conceal, make way with, sell, or in any manner dispose of the same or any part thereof, without the authority and per- mission of the said mortgagee or his executors, administrators or assigns, in writing expressed, then it shall and may be lawful for the said mort- gagee, with or without assistance, or his agent or attorney, or his executors, administrators, or assigns, to take possession of said goods and chattels, by entering upon any premises wher- ever the same may be, whether in this county or State, or elsewhere, to and for the use of said mortgagee or his assigns. And if the moneys hereby secured, or the mat- ters to be done or performed, as above specified, are not duly paid, done or performed at the time and according to the conditions above set forth, then the said mortgagee or his attorney, or agent, or his executors, administrators, or assigns, may, by virtue hereof, and without any suit or process, immediately enter and take possession of said goods and chattels, and sell and dispose of the same at public or private sale, and after satisfying the amount due, and all expenses, the surplus, if any remain, shall be paid over to said mortgagor or his assigns. That the exhibition of this mortgage shall be sufficient proof that any person claiming to act for the mortgagee is duly made, constituted, and appointed agent and attorney to do whatever is above authorized. In witness whereof, the said mortgagor has hereunto set his hand (and seal), this day of . A. B. \S*al.\ Executed and delivered ) in presence of j Mortgage of Personal Property, or, Chattel Mortgage, with Power of Sale. Another. Know all men by these presents : That I, A. B., of , etc., in consideration of the sum of dollars, to me paid by C. D., of , etc., the receipt whereof is hereby acknowl- edged, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said C. D. the following named and de- scribed articles of personal property ; that is to say (here follows the list or schedule, with a descrip- tion of the articles mortgaged). faith. See various States, above. l-It is not a suffi cient statement to indorse on the mortgage already on file, that it is refiled and renewed, with the date. There must be a statement exhibiting the interest of the mort- gagee. Fitch w. Humphrey, i Den. 163. CONVEYANCES. To have and to hold all and singular the said ^oods and chattels unto the said C. D.,and his executors, administrators, and assigns, to his and their sole use forever. And I, the said mortgagor, for myself and my executors and administrators, do covenant to and with the said mortgagee and his executors, administrators, and assigns, that I am lawfully possessed of the said goods and chattels, as of my own property: that the same are free from all incumbrances; and that I will, and my exec- utors and administrators shall, warrant and de- fend the same to the said mortgagee and his ex- ecutors, administrators, and assigns, against the lawful claims and demands of all persons. Provided, nevertheless: That if the said mortgagor, or his executors or Administrators, shall well and truly pay unto the said mortgagee or his executors, administrators, or assigns, the sum of dollars, then this con- veyance, as also a certain promissory note bear- ing even date herewith, signed by the said mort- gagor, whereby he promises to pay the said mortgagee the said sum and interest at the time aforesaid, shall both be void ; and otherwise they shall remain in full force and virtue. And provided further : That until default by the said mortgagor, or his executors and administrators, in the per- formance of the condition aforesaid, or of some part thereof, it shall and may be lawful for him or them to keep possession of the said granted property, and to use and enjoy the same ; but in case of such default, or if the same or any part thereof shall be attached at any time before pay- ment as aforesaid, by any other creditor or credi- tors of the said mortgagor, or if the said mort- gagor, his executors or administrators, shall attempt to sell the same or any part thereof with- out notice to the said mortgagee or his executors, administrators, or assigns, and without his or cheir assent to such sale, in writing expressed ; or shall remove the same, or any part thereof, from the place where they now are, without such no- tice and absent, then it shall be lawful for the said mortgagee, his executors, administrators, or assigns, to take immediate possession of the whole of said granted property to his or their wn use, and to sell and dispose of the whole, or of so much of said granted property at public auction as shall produce a sum of money suffi- cient to pay and discharge the above-mentioned debt or liability, with interest, and all costs and charges of keeping and selling the same, and all just and equitable liens then existing thereon, without further notice or demand, except giving days' notic* of the time and place of said sale to said mortgagor or his legal representa- tives; and aftsr the said debt or liability, with interest, costs, charges, and liens, shall be so dis- charged and satisfied, the surplus of the money arising from said sale, and the residue of said granted property, shall be paid and restored to said mortgagor or his legal representatives, dis- charged from all claim under this mortgage. In witness whereof, the said A. B. has here- unto set his hand (and seal), this day of . Executed and delivered in ( A. B. [Seal.\ presence of j Mortgage of Personal Property Sale- Notice of. 9.? th - e ~TT day of A - D - at o'clock M.,I will expose for sale, at public auction, at (designating the place of sale), the property mortgaged by A. B. to C. D., consisting of - horses, cattle, sheep, hogs, tons of hay, bushels of corn, bushels of Wheat, tc., etc. Terms of sale to be made known on day of sale. A. R., Auctioneer. Dated , ihis day of . Mortgage of Personal Property Schedule "A." If the property conveyed consists of a great number of articles, it is as well to refer to them as " all the goods, wares, and merchandise, chattels and effects mentioned and described in the schedule hereunto an- xed, marked ' Schedule A,' " and they should then be particularly enumerated in the schedule. The delivery is essential in order to make a bill of sale valid, and the subscribing witness should be able to testify positively, a* well in relation to that as to the consideration of the sale. SCHEDULE "A." Schedule of ail the furniture and household goods mentioned in (c>r other property}, and con- veyed by, the annexed chattel mortgage. One parlor set. Value . library table, " " book-case, " Etc., etc. Annexed and signed, this day of . [ Witness] W. S. A. B. Mortgage of Personal Property, or, Chattel Mortgage. To Secure Payment of Notes, etc. See GENERAL FORMS, and continuing thus : Upon condition, however : That the said parties of the first part shall well and truly pay unto the said party of the second part, his executors, administrators, or assigns, the just and full sum of dollars and cents, with interest, being the amount of promis- sory notes made by them, and described as fol- lows, each bearing date the day of , pay- able as follows : One note for dollars, payable at months from date ; at , etc., etc. And one for dollars, payable at months from date, to , at , etc., etc. Etc., etc. And upon the further condition, that if the said parties of the first part will well and truly indem- nify and save harmless the said party of the sec- ond part of, from and against all of the notes re- maining unpaid, which were given by said party of the second part to E. F. & Co. on the purchase of (state what), which notes are particularly enu- merated in schedule B. hereto annexed ; And also against all of the notes and debts, obligations or liabilities mentioned in schedules C. and D. hereto annexed, being debts of the party of the second part, which have been as- sumed by said party of the first part, then this conveyance shall be void ; otherwise, to remain in full force. And the said parties of the first part, for them- selves, their executors, administrators, and as- signs, do covenant, promise, and agree, to and with the said party of the second part, his exec- utors, administrators, and assigns : That in case default shall be made in the pay- ment of either of said notes hereinbtfore men- tioned, given by said parties of the first part to the said party of the second part, and the same shall remain due and unpaid for the space of days thereafter, then the sum remaining unpaid upon all of said notes may, at the option of the said party of the second part, his executors, ad- ministrators, and assigns, be considered due and payable immediately ; And in case either of said notes shall so remain unpaid for the space of days, or in case any recovery shall be had against said party of the second part, for or by reason of any note or notes, or debts mentioned in schedules B,C, and D ; then in that case it shall immediately thereupon be lawful for, and the said parties of the first part hereby authorize and empower the said party of the second part, his executors, administrators, or assigns, with the aid or assistance of any person or persons, to enter the store, stable, dwelling- house and other premises, and such other place or places as the said goods, chattels and property are or may be placed, and take and carry away the said goods, chattels and property, and to sell and dispose of the same for the best price or prices he can obtain for the same, and out of the money arising therefrom to retain, take up and pay the amount then remaining unpaid on said notes, whether the said notes shall have ma- tured or not, and all charges touching the same, and also all moneys which may be recovered against him, the said party of the second part, for or on account of any of the notes or debts men- tioned in either of the schedules to this mort- gage, or any liability or charges he may incur CONVEYANCES. account of the same, or any part thereof, and also the expenses of such sale, and then, after retaining sufficient in his hands to pay off and discharge any of the said debts or notes men- tioned in either of the schedules which may re- main unpaid, and applying the said moneys thereto, rendering the overplus (if any) unto the said parties of the first part, or to their executors, administrators or assigns; and in case of such sale and disposition of said goods, chattels and property, it shall and may be lawful for the said party of the second part to sell and dispose of the said property, goods and chattels, together or separately, as he may prefer. And until default be made in the payment of cither of the said notes, and the same shall re- main unpaid for ten days, or in any of the stipu- lations hereinbefore set forth on the part of the parties of the first part, the said parties of the first part shall remain and continue in the quiet and peaceable possession of the said goods and chattels and property, and the full and free enjoy- ment of the same. In witness whereof, the parties of the first part have hereunto set their hands (.and seals), this day of . A. B. [Seat.] Executed in presence of ) W. B. LSVa/.j W. S., etc. / Mortgage of Personal Property, or, Chattel Mortgage Stock. This (conveyance, or indenture, or) mortgage, made, etc., between A. B. , of the one part, and C. D., of the other part, witnesseth : That said A. B. has by deed, under his hand and seal, bearing even date with these presents, assigned and transferred unto the said C. D. the said shares of (describe the stock), in the company (in the mode pointed out in the act of in- corporation thereof), upon trust for securing to the said C. D M his executors, administrators, or as- signs, the repayment of the sum of dollars on next ensuing, with interest for the same after the rate of per cent, per annum, to be computed from the day of these presents, clear of all deductions for taxes, or on any other ac- count whatsoever; That in case the said principal sum and interest, or any part of the same respectively, shall remain unpaid to the said C. D., his executors, adminis- trators, or assigns, after the day or time afore- said, upon trust at any time or times thereafter, in the discretion of the said C. D., his executors, administrators, or assigns (without the necessity of any consent or concurrence on the part of the said A. B., his executors, etc.), to make sale and absolutely dispose of the said shares in the said com- pany so assigned to the said C. D., as aforesaid, or any of them, either together or separately, and either by public auction or by private con- tract; and to transfer or assure the same when sold unto the purchaser or purchasers thereof or as he, she, or they shall order or direct ; And upon further trust out of the money which shall arise as well from the sale or sales afore- said, as from any of the dividends and profits of the said shares accruing in the meantime, which shall be received by the said C. D., his executors, etc., to pay or retain the said principal sum of dollars, with interest for the same, after the rate and from the time aforesaid, or so much of the said sum and interest as shall then remain unpaid, clear of all deductions as aforesaid, to- gether with such costs and expenses as shall be incurred by the said C. D., his executors, etc., in the execution of these trusts, or as incidental thereto. And in case after paying or retaining the sum or sums of money and interest, costs and ex- penses aforesaid, any surplus shall remain in the hands of the said C. D., his executors, etc., un- applied to any of the purposes aforesaid ; then upon trust to pay such surplus unto the said A. B., his, etc., for his or their absolute use and benefit; and also in case after such payment of the sum or sums of money and interest, costs and expenses aforesaid, or after the receipt of the same from the said A. B., his executors, etc., the *W shares in th$ said company, or any of them, shall remain unsold, then upon trust, on the request and at the costs of the said A. B., his, etc., to transfer the same unto the said A. B., his executors, etc., or as he or they shall direct, free from all incumbrances, created or oc- casioned by the said C. D., his, etc., in the mean- time. In witness whereof, etc. VARIOUS CLAUSES. DEFAULT POSSESSION UNTIL. That until default shall be made, in payment of the said sum of dollars and interest, the said A. B., and his assigns, may hold, enjoy, and use the goods above mortgaged, as aforesaid, with- out the hindrance or interruption of the said C. D., or his assigns. DEFAULT MORTGAGEE SHALL Nor SELL UNTIL. That until default shall be made, in payment of the said sum of dollars and interest, 01 some part thereof, the said C. D., his executors., or administrators, will not sell or dispose of the said goods, chattels and property (or shares of stock in the said company so transferred to him as afore, said, and will, from time to time, pay over unto the said A. B., hit executors, or administrators or assigns, any dividend or dividends, which he, the said C. D. , his ex- ecutors, or administrators, shall, in the meantime, hav received on account thereof.) PAYMENT FUTURE DAY, WITH INTEREST, ETC. Upon condition that said party of the first part shall pay or cause to be paid unto the said patty of the second part, his executors, administrators or assigns, the sum of dollars {the principal sum secured), on the day of , with inter- est thereon from the date hereof (or from the day of ), at the rate of per cent, per an- num (or with legal interest thereon), payable semi- annually (or quarterly), on the day of , and the day of , etc. (designating the times *f payment), in each year, until the whole of said principal sum be paid. PAYMENT ANNUAL INSTALMENTS, WITH INTEREST, ETC. Upon condition that said party of the first part shall pay or cause to be paid unto the said party of the second part, his executors, administrators, or assigns, the just and full sum of dollars (stating the principal sum secured), in equal an- nual instalments, from the date hereof (or com- mencing on the day of ), with interest there- on at the rate of per cent, per annum (or with legal interest thereon), payable annually with such instalments (or semi-annually, or quarterly, on the days of [ naming the times for payment ef interest] in each year). PAYMENT UNEQUAL INSTALMENTS, WITH INTEREST, ETC. Upon condition that said party of the first part shall pay or cause to be paid unto the said party of the second part, his executors, administrators, or assigns, the just and full .sum of dollars (stating the principal sum secured), in manner fol- lowing, viz. : the sum of dollars on the day of next ; the sum of dollars on the day of ; and the remaining sum of dol- lars in from the said last-mentioned date, to- gether with the interest at the rate of per cent, per annum (or with legal interest on the whol sum remaining unpaid at the time of each payment). POSSESSION. See DEFAULT, ETC., above. SALE. See DEFAULT, above. SECURITY ON A NOTE. Upon condition, however, that if the said party of the first part shall well and truly pay to the said party of the second part, his executors, ad- ministrators, and assigns, a certain promissory note, made by , for dollars, bearing date the day of ,and payaole after date to the order of E. F. (or his promissory note, of which the following is a copy, setting it forth), according to the tenor thereof, then this conveyance shall be void ; otherwise, to remain in full force. And ip CONVEYANCES. 363 taae default shall be made in payment of said note, etc. (*s in other cases). SURETY IN A LEASE. Upon condition, however, that if the said party of the first part, his executors, administrators end assigns, shall well and truly pay the rent to accrue on a lease made by L. R. to the said party of the first part, bearing date the day of (and shall perform alt the covenants on his part therein contained), and indemnify and save harmless the said party of the second part from and against all damage, costs and expenses by reason of his having become a surety thereon, then this con- veyance shall be void ; otherwise to remain in full force. And in case default shall be made in such pay- ment (and performance), etc. (as in other cases). See LEASES, ante. COVENANT TO WARRANT THE GOODS. And the said A. B., for himself, his executors, and administrators, all and singular the said goods, etc., by these presents granted, etc., unto the said C. D.,his executors, etc., against him, the said A. B., his executors and administrators, and against all and every other person and per- sons whatsoever, shall and will warrant and for- ever defend by these presents. WARRANTY. And I, the said mortgagor, for myself and for my executors and administrators, do covenant to and with the said mortgagee, and with his exec- utors, administrators and assigns, that I am law- fully possessed of the said goods and chattels, as of my own property; that the same are free from all incumbrances (except, stating mhat), and that I will, and my executors and administrators shall, warrant and defend the same to the said mortgagee, his executors, administrators, and assigns, against the lawful claims and demands of all persons. POWERS OF ATTORNEY. See title AGENCY, subject ATTORNEYS IN FACT, ante, p. 72, et seq. WILLS are either absolute or conditional conveyances of property. A WILL (last will and testament) is the dis- position of one's property, to take effect after death.* The word will includes codicils. Wills are unwritten (or nuncupative) and writ- ten. The former are called nuncupative from nuncupare, to name, declare, or make a sol- emn declaration ; because this class of wills were required to be made in solemn form be- fore witnesses, and afterwards reduced to writ- ing,* and by the appointment and naming of an executor.' The practice of allowing the owner of prop- erty to direct its destination after his death is of very ancient date, coeval with civilization itself,8 and with rare exceptions has existed always and everywhere. BEQUEATHING is the giving of personal prop- -ioCush. 129; 7 S. & R. 559; 4 Iowa, 180. |-33 Penn. St. 9; 12 La. An. 301; 8 Rich. 190. r-27 Barb. 260. s-2 Sandf. 46. 4-30 Penn. St. 437. u-24Conn. 350. V-4R-I-4M: 12 La. An. 301 ; 5 Ohio St. 237; 33 Penn. St. 415; 5 Ind. 465. w-4 Brown Ch. 55; 17 Sim. 108; 16 Beav. Rolls. 510; 2 Ves. Sr. 242; 3 Ves. 107, no: 4 Id. 610; 7 Younge & C. 160; 2 Russ. & M. 117; 8 Cow. 56; 3 Sandf. Ch. 11 ; 4 Kent. Comm. 531. x-3 B. Mon. 390; 6 Johns. Ch. 374, 375! 14 Pick. 543: 16 Ves. 167; 7^.98; i Ad. & E. 423. See also the numerous cases cited in J Ves. Ch. (Sumner Ed.) 98 ; i Cr. & M. 42. y-3 Bingh. 614; 12 J. B. Moore, 2. z-4 N. Y. 140. a-2 Ves. 204; 12 Id. 29; 2 Mylne & K 765; i Ves. & B. 422, 445. 364 CONVEYANCES. which, where the testator evinces a particular and a general intention, and the particular inten- tion cannot take effect, the words shall be so construed as to give effect to the general inten- tion. 1 * The principle is applied to sustain wills in which perpetuities are created, so that, if it can possibly be done, the devise is not regarded as utterly void, but is expounded in such a manner as to carry the testator's intention into effect, as far as the law respecting perpetuities will allow. This is called a cy pres construc- tion. Its rules are vague and depend chiefly upon judicial discretion applied to the partic- ular case.* It is also applied to sustain devises and bequests for charity. DESIGNATION is the expression used by the testator to denote a person or thing instead of the name itself; thus, a bequest of the farm which the testator bought of a person named, or of a picture which he owns, painted by a cer- tain artist, would be a designation of the thing. So a legacy " to the eldest son " of A. would be a designation of the person . d DEVISE is a gift of real property by a per- son's last will and testament. A person to whom a devise is made is called the " devisee." A person to whom the residue of a testator's real estate is devised, after satis- fying the debts and bequests and devises, is called the " residuary devisee." All persons having an existence, and even embryos-, may be devisees, unless excepted by some positive law. But the devisee must be in existence, ex- cept in cases of devises to charitable uses." In general, whosoever can acquire property by his labor and industry may receive a devise. f So, aliens, married women, minors, and persons of non-sane memory, may be devisees. 8 A testator, being one who devises real estate, is called also a devisor. Any person who can sell an estate may, in general, devise it ; and there are some disabilities to a sale which are not such to a devise. h The term devise properly and technically applies only to real estate. The object of the devise must therefore be that kind of property. 1 But it is also sometimes improperly applied to a bequest or legacy^ Devises are contingent or vested ; that is, after the death of the testator. When the vesting of any estate in the devisee is made to depend upon some future event, it is contin- gent ; if the event never occurs, or until the event does occur, no estate vests under the b-3 Hare Ch. 12 ; 2 T. R. 254 ; 2 Bligh. 49 ; Sugd. Pow. 60 ; i Spencc Eq. Jur. 532. c-Seclgw. Const. L. 265; Story Eq. Jur. $ 1169, et seq. I-See Roper Leg. Ch. 2. e-Story Eq. Jur. $ 1146, 1160; 2 Washb. R. Prop. 688; 2 How. 127; 4 Wheat, 33, 49. f-Cam & N. 353- Sf-4 Kent. Comm. 506; i Harring. 524. As to corporations see 2 Washb. R. Prop. 687. Il-See 2 Washb. R. Prop 685, 686. l-i Hill Abr. C. 36, nn. 62- 74. J-4 Kent. Comm. 489; 8 Vin. Abr. 41 ; Coin. Dig. states by Dn>. It-i Jarman Wills, Ch. 26, and nu- merous cases cited. l-2i Pick. 311 ; i W. & S. 205. 111-21 Pick. 311; 7 Met. Mass. 171. 11-1 Ves. Sr. 44, 50, 118; 4 Pick. 198; 7 Met. Mass. 173. See Redf. Will*. 0-2 Vem. Ch. 394; 5 Ves. Ch. 589 ; 3 Whart. 477; 4 Kent Comm. 541, 543, and cases cited in notes. devise. But where the future event is referWsrt to merely to determine the time at which the devisee shall come into the use of the estate, this does not hinder the vesting of the estate at the death of the testator.* The law favors the construction of the will that shall vest the estate ;' but this construction must not be car- ried to such an extent as to defeat the manifest intent of the testator. Where the estate is given absolutely, but only the time of the jx>s- session is deferred, the devisee or legatee ac- quires a transmissible interest, although he never arrive at the age to take possession. 11 Where the devisee dies during the life of th<. testator, and the devise has lapsed, the estate so devised will go to the heirs, notwithstanding a residuary devise. But if the devise be void, as where the devisee is dead at the date of the will, or is made upon a condition precedent which never happens, the estate will go to the residuary devisee if the words are sufficiently comprehensive. EFFECTS denotes "property," and this in a more extensive sense than " goods."' 1 In a will "effects" will carry the whole personal estate,' but not real estate unless the word " real " be added.' When preceded or fol- lowed in a will by words of narrower import, if the bequest is not residuary, it will be con- fined to species of property of the same kind with those previously described.* FARM. In a will the word " farm " may pass a freehold, if it appears that such was the intention of the testator. 1 GOODS. In wills " goods " is a most com- prehensive and general term, and, if there is nothing to limit it, it will comprehend all the personal estate of the testator, as bonds, furni- ture, money, notes, stocks, etc., etc. ; u but in general it will be limited to the context of the will. T GOODS AND CHATTELS. In wills the term " goods and chattels," if unrestrained, will pass all personal property.* HOUSEHOLD FURNITURE. By this expres- sion, in wills, all personal chattels will pass that may contribute to the use or convenience of the household, or the ornament of the house : as, china, linen, pictures, and plate. But goods or plate in the hands of the testator in the way of his trade will not pass ; nor will books nor wines.* GOODS. This expression, in wills, will pass everything of a permanent nature (that is, p-2 Sharsw. Bl. Comm. 284. q-s Madd. Ch. 72 ; 6 Id. 119; Cowp. 299; 15 Ves. Ch. 507. r-2 Powell Dev. Jarm Ed. 167; 15 M. & W. 450. 8-13 Ves. Ch. 39; 15 Id. 326; Roper. Leg. 210. See 2 Sharsw. Bl. Comm. 384, n. When " the effects " passes realty, see i Jarman Wills, Perk. Ed. 585, 590, 591, n. t-6 T. R. 345; 9 East. 448. n-i Atk. Ch. 180-182 ; 2 Id. 62 ; i P. Wms. 267: i Brown Ch. 128; 4 Russ. Ch. 370: Wms. Ex. 1014; i Roper. Leg. 250. V-See 2 Belt. Supp. Ves. Ch. 287 : i Chitty Pr. 89, 90; i Ves. Ch. 63; 3 Id. 212 ; Hamm. Parties, 182; i Yeates, 101 ; 2 Dall. 142: Ay- liffe Pand. 296; West. Ins. 260; Sugd. Vend. 493, 497. W-See Addis. Contr. 31, 201, 912, 914. x-i Jarman Wills, Perk. Ed. 591, 596, nn.; I Ves. Sr. Ch. 97; a Wins Ex. Am. Ed. 1017; t Johns. Ch. 329. CONVEYANCES. 365 articles of household which are not consumed in their enjoyment) that were used or pur- chased, or otherwise acquired by the testator, for his house ; but not goods in the way of his trade. Plate will pass by this term, but not articles of consumption found in the house, as malt, hops, or victuals ; nor guns or pistols, if used in hunting or sport, and not for defence of the house. A clock in the house, if not fixed to it, will pass.r STUFF. These words are sometimes used in a will. Plate will pass under this term, 1 but not apparel, books, cattle, victuals, nor choses in action which do not fall within the natural meaning of the word, unless there be an intention manifest that they should pass. 1 Goods, as seven hundred beds in possession of testator for purposes of trade, do not pass un- der " household stuff." b In general, " house- hold stuff" will pass all articles which may be used for the convenience of the house. IN TERRORUM. When a legacy is given to a person upon condition not to dispute the validity or the dispositions in wills and testa- ments, the conditions are not, in general, obli- gatory, but only in terrorum ; that is, by way of terror, threat, or warning; if, therefore, there exists a reasonable or sufficient cause for litigation, the non-observance of the conditions will not be a forfeiture. 4 But when the acqui- escence of the legatee appears to be a material ingredient in the gift, the bequest is only such while the legatee shall refrain from disturbing the will.* INCEPTION. In the making of a will the writing is the inception.' INTENTION. In last wills and testaments the intention of the testator governs unless the thing to be done is opposed to some inflexible rule of law.* This intention is to be gathered from the instrument, and from every part of it. h INTESTATE. An intestate is one who, having lawful power to make'a will, has made none, or has made one which is defective. In such case the deceased is said to die intestate, and his estate and effects descend to his heirs in the manner prescribed by law. See General Stat- utes. One who cannot lawfully make a last will and testament is called intestable. An in- fant, an insane person, or one civilly dead can- not make a will for want of capacity or under- standing; and in the absence of a statute to the contrary a married woman cannot make a will without the concurrence of her husband, because she is under his authority. ISSUE. Descendants, all persons who have descended from a common ancestor. 1 In a will the word " issue " may be held to have a y-i Jarman Wills, Perk. Ed. 589; i Rop. Leg. 253. x-2 Freem. Ch. 64. a-is Ves. Ch. 319. b-2 P. Wms. Ch. 302. c-Swinburne Wills, Pt. 7, p. 484, 2 10. U-2 Vrn. Ch. 90; i Hill Abr. 253; 3 P. Wms. Ch. 344; i Atk. Ch. 404. -2 P. Wms. Ch. 52 : 2 Ventr. Ch 352. f-3 Co. 31, b; Plowd. 343. jf-6 Cruise Dig. 295; Jar- man Wills. Index ; 6 Pet. 68. ll- 3 Vs. Ch. 105 ; 4 Id. A lapsed legacy is one which, in consequence of the death of the legatee before the testator, or before the period for vesting, has never vested ; one which, on account of the death of the legatee before the period arrives for the payment of the legacy, lapses or devi- ates from the course prescribed by the testator and falls into residuum/ A distinction exists between a lapsed devise and a lapsed legacy : a legacy which lapses does not fall into the residue of the estate, unless so provided by the will, but descends to the heir-at-law ; on the contrary personal property passes by the residu- ary clause where it is not otherwise disposed of. s A legacy for life is one in which the legatee is to enjoy and use the legacy during life. A pecuniary legacy is one of money ; these are usually general legacies, but there may be a specific pecuniary legacy, as, of the money in a certain bag.' A residuary legacy is a bequest of all the testator's personal estate not otherwise effectually disposed of by his will." A specific legacy is a bequest of a par- ticular thing, or a bequest of a specified part of a testator's personal estate, distinguished from all others of the same kind. T A specific Am. Ed. 6. n. b. 1-2 Wms. E*. 947; 5 T. R. 716: i Burr. 768; 7 Ves. Ch. 391, 522. in-i Vern. Ch. ?-,4; 2 Id. 181 ; 5 Ves. Ch. 461 ; 19 Id. 86; Com Dig. CVian. eery (I. 4). ll-6 Mod. 31 ; 2 Ves. Ch. 449 ; 3 Mer. Ch. 154. o-i Roper Leg. 3d Ed. 645. |>-Id ITO. q- Lowndes Leg. 84 ; Swinburne Wills, 4s ; Ambl. Cn. 641 ; i P. Wms. Ch. 697. r-i Wms. Ex. 1036. H-a Bouv. Inst. 2154-2156. t-i Roper Leg. 150, n. t- Lowndes Leg ; 10 Bac. Abr. Ltf octet (I), v-3 B*T. Rolls, 349. CONVEYANCES. legacy may be of animals or inanimate things, provided they are specified and separated from all other things; a specific legacy may, there- fore, be of money in a bag, or of money marked and so described, as, " I give two eagles to A. B. on which are engraved the initials of my name." A specific legacy may also be given out of a general fund. w If the specific article given be not found among the assets of the testator, the legatee loses his legacy; but, on the other hand, if there be a deficiency of assets, the specific legacy will not be liable to abate with the general legacies." Most persons are capable of becoming lega- tees, unless alien enemies, or prohibited by statute. Legacies to subscribing witnesses to a will are frequently declared void by statute.' Bequests to further or carry into effect any ille- gal purpose which the law regards as subver- s/ve to sound policy or good morals, would be held void, and the executor justified in not paying them. 1 But bequests to charitable uses are favored,* and decisions have been liberal in upholding bequests for the most diverse objects, and expressed in the most general terms. b Abatement is a reduction of a legacy, general or specific, on account of the insufficiency of the estate of the testator to pay his debts and legacies. When the estate of a testator is in- sufficient to pay both debts and legacies, it is the rule that the general legacies must abate proportionately to an amount sufficient to pay the debts. If the general legacies are exhausted before the debts are paid, then the specific leg- acies abate, and proportionately. 8 Ademption is the extinction or withholding of a legacy in consequence of some act of the testator, which, though not directly a revocation of the bequest, is considered in law as equiva- lent thereto, or indicative of an intention to re- voke. Republication of a wttl may prevent the effect of what would otherwise cause an ademption.* The question of adsmption of a specific leg- acy depends entirely upon the intention of the testator, as inferred from his acts under the rules established in law. Where the relations of the parties are such that the legacy is, in law, con- sidered as a portion, an advancement during W-Touchst. 433; Ambl. 310 ; t Ves. Ch. 565 ; 3 Ves. & B. Ch. Jr. 5. X-i Vcrn. Ch 31 ; i P. Wms. 422 ; 3 Id. 365 ; 3 Brown Ch. 160. y See 2 Wms. Ex. 4 Am. Ed. 906, et sff. ; 19 Ves. Ch. 2> 4 : 10 Sun. Ch. 487 ; 3 Russ. Ch. 437: i Sharsw. Bl. Comm. 442. z-2 Beav. Rolls, 151 ; 2 M & K. Ch. 697 ; i Mylne & C. Ch. 11 ; 1 Salk. 162 : 2 Vern. Ch 266 A-The cases are exten- tively collated in 2 Wms. Ex. < 51, n. i ; 4 Kent Comm. 308 ; 2 How. U. S. 127 ; 4 Wb ; .at. i ; 7 Johns. Ch. 292 ; 20 Ohio, 283 ; 10 Penn. St. 23; uVt.igS; sCush.336; 12 Conn. 113; Saxt. Ch. 577 ; 3 Leigh, 450; 2 Ired. Eq. 210: 5 Humph. 170; ii Bear. Rolls, 481 ; 14 Id. 357; 10 Hare, 446. b-17 S. & K. 88 ; 2 Ired. Eq. 210 ; i Gilm. 336, 7 Vt. 241 ; 2 Sandf. Ch. 46 : 76. Mon. 617, 618-622; i How. U. S. 127; 9 Penn. St. 433: 7 Johns. Ch. 292. 0-2 Sharsw. El. Comm. 513 and note : Bac. Abr. Leg. H. ; Roper Leg. 253, 284 : 2 Brown Ch. 19 ; 2 P. Wms. Ch. 283 ; 5 Mylne & C. Ch. 29 ; 3 Hare Ch. 509: 10 Ala. N. S. 72 ; 12 Leigh, i. d-Roper Leg. 351. -i Brown Ch. 555; i Roper Leg. 375. f-2 Atk. Ch. 493 : 3 M. & C. 374. g-i Ves. Ch. 257. li-i 5 Ves. Ch. 413; 4 Brown Ch. 494. 1-2 Ves. Sr. 38 ; 7 Ve. 516. j- the life of the testator will be presumed an ademption, at least to the extent of the amount advanced ; but not where the advancement and portion are not of the same kind ; or where the advancement is contingent and the portion certain-/ or where the advancement is ex- pressed to be in lieu of, or compensation for, an interest ;* or where the bequest is of uncertain amount ; h or where the legacy is absolute, and the advancement for life merely; 1 or where the devise is of real estate.^ But where the testator was not a parent of the legatee, nor standing in loco parentes, the legacy is not to be held at portion, and the rule as to ademption does not apply,* except where a bequest for a particular purpose, and money is advanced by the testator for the same purpose. 1 The ademption of a specific legacy is effected by the extinction of the thing or fund without regard to the testator's intention ; m but not where the extinction of the specific thing is by act of law, and a new thing takes its place ;" or where a breach of trust has been com- mitted, or any trick or device practised with a view to defeat the specific legacy ; or where the fund remains the same in substance, with some unimportant alterations ;P or where the testator lends the fund on condition of its being replaced. 1 ! Construction. I. The technical import of words is not to prevail over the obvious intent of the testator. 1 " 2. Where technical words are used by the testator, or words of art, they are to have their technical import, unless it is appa- rent that they were not intended to be used in that sense. 1 3. The intent of the testator is to be determined from the whole will.* 4. Every word shall have effect if it can be done with- out defeating the general purpose of the will, which is to be carried into effect in every rea- sonable mode." 5. Where a will of personalty is made abroad, the law p of the testator's domi- cil (lex dotnicilli) must prevail, unless it appear that the testator had a different intent." Cumulative or repeated. Where there is in- ternal evidence of the intention of the testator, that intention is to be carried out ; w and evi- dence will be received in support of the appa- 3 Younge & C. Exch. 397. lt-2 Hare Ch. 424 : 2 Story Eq. Jur. J5 1117. 1-2 Brown Ch. 1 66 ; 7 Ves. Ch. 516; i Ball. & B' Ch. 303. iu-3 Brown Ch. 432, 2 Cox Ch. 182; 3 Watt's Penn. 338; i Rop. Leg. 329. n-Forr. Exch. 226 ; Ambl. Ch. 59. 0-2 Vern. Ch. Rathby Ed. 748, n. ; 8 Sim. Ch. 171. |-i Cox Ch. 427 ; 3 Brow* Ch. 416; 3 Myl. & K. Ch 296. q-2 Brown Ch. 113. r-3 T. R. 86: n East. 246; 16 Id. 221 ; 6 Ad. & E. 167; 7 M.& W. 1,481; i M. &K. 571; aid. 759:* Russ. & M. 546; 2 Mass. 56; n Pick. 257, 375 : 13 Id. 41, 44 : 2 Met. Mass. 191, 194. i Root, 332; i Nott & M'C. 69 ; 12 Johns. 389. s-6 T. R. 352; 3 Brown Ch. 68 ; 4 Russ. Ch. 386, 387 ; 2 Sim. Ch. 274 ; i Younge & J. 512; 4 Ves. 329; 8 Id. 306: Dougl. 341 ; 5 Masc. soo ; 8I<1.3: 2 M'Cord; 5 Denio, 646. t-i Swanst i9; j Coll. Ch. 681 ; 8 T. R. 122 ; 3 Pet. 377: 4 Rand 213; 8 Klackf. 387. 11-6 Ves. 102; 2 B. & Aid. 448; t Bl. Comm. 381; 3 Pick. 360: 7 Ired. Eq. 267; ip Humph. 368; *Md.8a; 6 Pet. 68; i Jarman Wills, 404-412. v-Story Confl. L. $ 479 a., 479 m., 490, 491. W-2 Beav. Rolls, 215 ; 7 Id. 107 ; 3 Hare, 620; 2 Drur & Warr. Ch. 133 ; 3 Ves Ch. 462 ; 5 Id. 369 ; 17 Id, 462 ; 2 Sim. & S. 145 ; 4 Hare Ch. 219. CONVEYANCES. 367 rent intention, but not against it." Where there is no such internal evidence the following positions of law appear established : i. If the same specific thing is bequeathed twice to the same legatee, in the same will, or in the will and again in the codicil, in that case he can claim the benefit of only one legacy.' 2. Where two legacies of a quantity of equal amount are bequeathed to the same legatee in one and the same instrument, there also the second bequest is considered a mere repetition, and he shall be entitled to one legacy only. 1 3. Where two legacies of unequal amount of quantity are given to the same person in the same instru- ment, the one is not merged in the other, but the latter shall be regarded as cumulative, and the legatee entitled to both. a 4. Where two legacies are given to the same legatee by dif- ferent instruments, in that case the latter shall be cumulative, whether its amount be equal b or unequal to the former. Debt Release of by legacy. If one leave a legacy to his debtor, it is not to be regarded as a release of the debt, unless that appears to have been the intention of the testator. d Where one appoints his debtor his executor, it is at law regarded as a release of the debt ; e but this is in general regulated by statute. But in equity it is considered that the executor is still liable for the amount of his own debt. r Where one appoints his creditor executor, and he has assets, it operates to discharge the debt, but wot otherwise.* Satisfaction of by legacy. In equity, if a legacy equal or exceed the debt, it is pre- sumed to have been intended to go in satisfac- tion ; h but if the legacy be less than the debt, it is deemed satisfaction for that amount. 1 Courts allow very slight circumstances to rebut this presumption of payment : as where the debt was not contracted until after the making of the will ;J where the debt is unliquidated and the amount due not known ; k where the debt was due upon a bill or note negotiable; 1 where the legacy is made payable after the debt falls due; where the legacy appears from the will to have been given with a different intention ; u where there is express direction in the will for the payment of all debts and legacies, or the legacy is expressed to be for some other reason. Legatee. One to whom a legacy is be- queathed. A residuary legatee is one to whom the residum of the estate is bequeathed or de- vised by will.P ^r-2 Brown Ch. 528; 4 Hare Ch. 216; i Drur. & Warr. Ch. 94, 113. y-Taller Ex. 335 ; 2 Hare Ch. 432. se-i Brown Ch. 30 : 4 Ves. Ch. 75 ; 3 M & K. Ch. 29 ; 10 Johns. 156. a-Finch,267; 2 Brown Ch. 225 ; 3 Hare Ch. 620. b-i Cox Ch. 392; 17 Ves. Ch. 34; i Coll. Ch. 495; 4 Hare Ch. 216. c-i Chanc. Cas. 301; i P. Wms. Ch. 423; 5 Sim. Ch. 431; 7^.29; i M. & K. Ch. 589. l-4 Brown Ch. 227; 13 Sim. Ch. 554. e-Co. Litt. 264 ; 8 Co. 136, a. f-i i Ves. Ch. 90, n. n 1,2,3; 13 Id. 262,264. jf-2 Wins. Ex. ^th Am. Ed. 1118- 1123. li-Prec. in Ch. 240; 3 P. Wms. 353 : 4 Madd. 325. i-2 Salk. 508; i Ves. Sr. Ch. 263; 2 Ho. Lds. Cas. 153. j-2 P. Wms. Ch. 343. k-i P. Wms. 209. 1-3 Ves. Ch. s6i. 111-3 Atk. Ch. 96. 11-2 Ves. Sr. Ch. <35- o-i P. Wms. 410. |-Roper Leg. Index ; Powell 24 Children. The description of children as legatees may have reference to the time of testator's death, or that of making the will ; the former is the presumed intention, unless from the connection or circumstances the latter is the apparent intent, in which case it must prevail.'' This term will include a child unborn ; r but it will sometimes have a more restricted applica- tion, and thus be confined to children born be- fore the death of the testator; it will make no difference whether the bequest be to children begotten or to be begotten, or which " may be born."' "Heirs" maybe construed children. 1 and " children," when used to designate one's heirs, may include grandchildren;" but if the word " children " is used, and there are person- to answer it, then grandchildren cannot be com prehended under it. T The general rule is, thai a devise to a man and his children, he having children living at the time when the will take> effect, creates a joint estate in the father and children ; but if he has no children he takes an estate tail ; w and a similar legacy of personal estate gives the father a life-estate if he have no children at the time the will takes effect ; x but if there are children living they take jointly with the father.? The term " children " will not include illegiti- mate children, if there are legitimate children to answer the term ; otherwise it may or may not, according to circumstances.* Cousins. The term " cousins " will be restricted to its primary signification when it is before used in the same will in that sense. b Upon a bequest " to my cousin T. S.," if I have two cousins of that name, evidence may be ad- duced to show which of the two was intended. d Heits. A legacy to one and his heirs, although generally conveying an absolute fee in real estate, and the entire property in personalty, mny by the manner of its expression and con- nection be held to be a designation of such per- sons as are the legal heirs of the person named, and thus they take as purchasers by name. 8 Interest in properly bequeathed or de- vised. Property given specifically to one for life, and remainder over, must be enjoyed spe- cifically during the life of the first donee, al- though that may exhaust it; f but where the bequest is not specific, as where personal prop- erty is limited to one for life, remainder over, it is presumed that the testator intended the same property to go over, and if any portion Mortg. Index ; see LEGACY, above. |-4 Brown Ch. 55; Ambl. Ch. 397; 2 Cox Ch. 191, 192; i Sim. Ch. 42 ; 2 Wms. Ex. 4 Am. Ed. 934. r-2 H. Bl. 399 ; i Sim. & S. Ch. 181 ; 2 Cox Ch. 425 ; i Meigs, 149. s-2 Mylne & K. 46 ; 14 Beav. 453: i Wms. Ex. 982, and note. 1- 3 Rich. Eq. 543; 4 Pick. 198; a Hayw. 356. 11-12 1!. Mon. 115, 121; 5 Barb. 190. V-5 Ired. 421; see 4 Watts, 82 ; 3 Port. (Ala.) 452 ; 5 Harr. & J. 135. w-i Turn. & R. Ch. 310; 12 Clark & F. Ho. Lds. Cas. 161 x-i2 Sim. Ch. 88. y-s Sim. Ch. 458. z-i Younge Ch. 354 ; 2 Russ. & M. Ch. 336; see i Wms. Ex. 992, and note (2). a-See 5 Harr. & j. 10; 2 Paige Ch. n ; u Ves. & B. Ch. 422 ; i Bail. Eq. 251 ; 6 Ired. Eq. 130 ; i Roper Leg. 80. b-g Sim. Ch. 457. C-i W. Bl. 50. h. 123 : i Yeates, 101 ; 2 Dall. 142. B-5 Mart. 182; 5 La 396; 10 Id. 328; 15 Id. 88. b-Cal. Code J 1227. c-i Phill. Eccl. i ; 2 Id. 173, CONVEYANCES. 369 PRECATORY WORDS. See WORDS, below. PROBATE (or proof ) of a r^ill must always be made in the probate court, or the court having exclusive jurisdiction in all matters pertaining to the settlement of estates. The probate of a will has no effect out of the jurisdiction of the court before, which probate is made, either as to persons or property in a foreign juris- diction." 1 Any person interested in the will may compel probate of it by application to the probate Court, who will summon the executor or party Having the custody of it. e The judge of pro- bate may cite the executor to prove the will at the instance of any one claiming an interest/ The attesting witnesses are indispensable, if the contestants so insist, as proof of the execution and authenticity of the will and the compe- tency of the testator, when they can be had.* But if all or part of the subscribing witnesses are absent from the State, deceased, or dis- qualified, then their handwriting must be proved. h It will be presumed that the requi- site formalities were complied with when the attestation is formal, unless the contrary ap- pear. 1 Wills over thirty years old, and appearing regular and perfect, and coming from proper custody, are said to prove themselves.^ Wills lost, destroyed, or mislaid at the time of the testator's death may be admitted to probate u]:on proper proof of the loss and of the exe- cution. 1 ' RECOMMENDATORY WORDS. See WORDS, below. REPUBLICATION is an act by a testator from, which it can be concluded that he intended that an instrument which had been revoked by him should operate as his will; or it is the re-execution of a will by the testator with a view of giving it full force and effect. The republication is " express " where there has been an actual re-execution of it. 1 It is " im- plied" when, for example, the testator, by a codicil executed according to the statute of frauds, reciting that he had made his will, added, " I hereby ratify and confirm my said will, excepting in the alterations after men- tioned;" the will might be at a distance, or not in the power of the testator, and it may be thus republished." The republication of a will has the effect: r. To give it the full force of a will made at the time of the republication; if, for example, a testator by his will devise " all his lands in A," then revokes his will, and after- wards buys other lands in A, the republication made after the purchase will pass all the testa- C-9 Co. 36, 38, a; Fonbl. F.q. b. 4, pt. 2, c. i, \ 2; 4 T. R.s6o: i Jarman Wills, 218; 8N.H. 1*4: 12 Met. (Mass )42i ; 8 Ohio, 5 : 3 Gill. 198; 20 Miss. 134 : 23 Conn, i. A. PROVINCE OF ONTARIO. Codicil*. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Must be of full age and sound mind. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and at- tested. Probate or proof. See text, above. Repeal. See text, above. Signature must be by the testator, or some other per- son in his presence and by his direction, in the presence of two witnesses, both being present at the same time. Witnesses. See SIGNATURE, above. See GENERAL FORMS, below. PROVINCE OF QUEBEC. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. All persons twenty-one years of age, and ot sound intellect, may make a last will. Alteration and repeal may be by burning, cancel- 372 CONVEYANCES. ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution. Wills are of three kinds : 1. The authentic (or French) will, made before two notaries, or a notary and two witnesses. 2. The English will, made in the presence of two wit- nesses. 3. The olographic will, which must be entirely written and signed by the testator, and requires neither notaries or witnesses. Probate or proof. The English and the Olographic wills must be probated. Repeal. See ALTERATION, ETC., above. Signature. The English will must be signed at the end thereof, with the signature or mark of the testator, made by himself, or by another person for him, in his presence, and under his express direction. See WIT- NESSES, below. Witnesses. The signature must be acknowledged by the testator, as having been subscribed by him to Ins will then produced, in the presence of at least two com- petent witnesses together, who must attest and sign the will immediately, in the presence of the testator, and at his request. Females may attest as witnesses in the English will, but not in the French. See GENERAL FORMS, below. COLORADO. Codicils. See text, above, and WRITTEN WILLS, ETC., below. 'Written Wills and Testaments. Age and mind. Males aged twenty-one years, fe- males aged eighteen years, being of sound mind and memory, may dispose of their real and personal prop- erty by will, subject to the payment of his or her debts ; <:xcept that a married man cannot deprive his wife of over one-half of his property, and vice versa, without *he consent of the other in writing. Personal estate may be disposed of by will or testa- ment by any one of sound mind and memory, at the age t.'f seventeen. Alteration and repeal may be by burning, cancelling, destroying, or obliterating by the testator himself, or by s.ome one in his presence, or by his express direction, or by a new will or codicil, or other writing, duly executed or proved. Execution. All wills devising lands, tenements, and hereditaments, annuities, or rents, must be reduced to writing, and duly signed and attested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC , above. Signature must be by the testator or testatrix, or by some one in his or her presence, and by his or her direc- tion. See WITNESSES, below. Witnesses. Two or more credible witnesses to the signature, etc., of the will, in the presence of the testator or testatrix, are necessary to the validity of the will. See GENERAL FORMS, below. CONNECTICUT. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. All persons over eighteen years of age, and of sound mind, may dispose of all their prop- erty, real and personal, by last will or testament. Alteration and repeal may be by burning, cancelling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direction, or by a new will or codicil, or other writing, duly executed or proved. Execution. All wills must be in writing, duly signed and proved. Probate must be effected within ten years from the testator's death. Repeal. See ALTERATION, ETC., above. Signature must be by the testator. See WITNESSES, below. Witnesses. The attestation must be by three wit- nesses, all of them subscribing the will in the presence cf the testator, and in the presence of each other. See GENERAL FORMS, below. DAKOTA, NORTH AND SOUTH. Codicils. Se text above, and WRITTEN WILLS, ETC., below. Written Wills and Testamnt. Alteration and repeal may be by burning, cancel- line, destroying, or obliterating oy the testator himself, or Dy some one in his presence, or by hi express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution. A will of real or personal property, or both, or a revocation thereof, by a person not domiciled here, and executed according to the place of the testa- tor's domicile elsewhere, is as valid as though executed according to the laws of the territory. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature. It must be subscribed at the end thereof by the testator himself, or by some person in his pres- ence, and by his direction. The subscription must be made in the presence of each of the attesting witnesses, or be acknowledged by the testator to each of them to have been made by him, or by his express authority. The testator must, at the time of subscribing or acknowl- edging the same, declare to the attesting witnesses that the instrument is his will. Witnesses. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testator's request, adding hit place of residence. A person who subscribes the testator's name, by his direction, must write his own name as a witness to the will. See GENERAL FORMS, below. DELAWARE. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Any person at the age of twenty- on^. years and upwards, of sound and disposing mind, may make a will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and at- tested. Married women cannot deprive their husbands of the courtesy of their life-interest in their property. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or by some per- son subscribing the testator's name in his presence, and by his express direction. Witnesses. It must be attested and subscribed in his presence by two or more credible witnesses. See GENERAL FORMS, below. DISTRICT OF COLUMBIA. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments.* Age and mind. Males must be of the full age of twenty-one years and upwards. Females must be of the full age of eighteen years. All persons must be of sound and disposing mind, and capable of executing a valid contract or conveyance. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution. All devises and bequests of lands or tenements devisable by law must be in writing, duly signed and attested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the person devising or making the will, or by some other person in his presence, and by his express direction. Witnesses. Such signature, etc., must be attested and subscribed in presence of the devisor by three or four credible witnesses. See GENERAL FORMS, below. FLORIDA. Codicils. See text, above, and WRITTEN WILLS, ETC., below- -Maryland Act, 1798, Ch. toi, C. It CONVEYANCES. 373 Unwritten or Nuncupative Will*. A. nuncupative will must be made in the time of the kt sickness of the deceased. It must be proved by the Mth of three witnesses at least, that were present at the making thereof; and it must be proved by said wit- nesses that the testator or testatrix, at the time of pro- nouncing the same, did desire the persons present, or some of them, to bear witness that such was his or her will, or to that effect. Six months after the speaking of such words no testi- mony shall be received to prove any nuncupative will, unless said testimony, or the substance thereof, was re- duced to writing within six days from the making of said will, and sworn to before some judicial officer ofthe State within six days. Written Wills and Testaments. Age and mind. Every person of the age of twenty- one years and upwards, of sound and disposing mind, may execute a last will and testament. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express di- rection, or by a new will or codicil, or other writing duly executed or proved. Execution must be in writing, duly signed and at- tested. Foreign wills must be executed according to the laws of this State in order to be of effect therein and operate as a devise of lands. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or some other person in his or her presence, and by his or her express direction. Witnesses. Such signature must be attested and subscribed in the presence of the testator or testatrix by three or more competent witnesses. See GENERAL FORMS, above. GEORGIA. Codicil*. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testament*. Age and mind. All persons must be of lawful age, >md of sound and disposing mind. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing duly executed or proved. Execution. All wills (except nuncupative) disposing of real or personal property must be in writing, duly iiigned and attested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or by some per- son lor him, in his presence and by his express di- rections. Witnesses. It must be attested and subscribed in the presence of the testator by three or more competent witnesses. A witness may attest by his mark provided he can swear to it. One witness cannot subscribe the name of another Wen in his presence and by his direction. See GENERAL FORMS, below. ILLINOIS. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Every male person twenty-one >ears of age, and every female person eighteen years ttf age, of sound mind, may make a will. Alteration and repeal, same as Georgia above, to which add, " and by subsequent marriage of testator." Execution must be in writing, duly signed and at- tested. Probate or proof. See text above. Wills executed out of this State may be admitted to probate in the manner provided for the probate of wills in this State, whether probated here or elsewhere. Repeal. See ALTERATION, ETC., above. Signature must be by the testator or by some person in his presence, at his direction. fc-a G. & H. 551, *?. C-G. S. 1866, iioo, ft tt?. Witnesses. Such signature, etc., must be attested in the testator's presence by two or more subscribing witnesses. See GENERAL FORMS, below INDIANA. Codicils. See text, above, and WRITTEN WILLS, ETC., below Written Wills and Testaments." Age and mind. All persons of sound mind who are twenty-one years of age may make wills devising all their estate, of every kind or nature, to any person or corporation, saving only the legal provision for the widow and widower. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, by his express direction, with the intention to revoke, or by a new will or codicil, or other writing duly executed or proved. Execution must be in writing (except nuncupative, bequeathing not to exceed one hundred dollars), duly signed and attested. Probate or proof. See text, above. Wills may be probated by the circuit court of any county where the testator resided, or in which he shall die leaving asset*., on proof of execution by one or more subscribing wit- nesses, or by proof of the handwriting of the witnesses in case of their incompetency, death, or absence. Wills executed without the State, and probated in another State or country according to the laws thereof, may be recorded and shall have the same effect aa if executed in this State. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or some person in his presence and by his direction. Witnesses. Such signature must be attested by two competent persons subscribing as witnesses in his presence. See GENERAL FORMS, below. IOWA. Codicils. See text, ante, and WRITTEN WILLS, ETC., below. Unwritten or Nuncupative Wills. Personal property to the value of three hundred dol- lars may be bequeathed by a verbal will if witnessed by two competent witnesses. A soldier in actual service, or a mariner at sea, may dispose of all his personal estate by a nuncupative will so witnessed. Written Wills and Testaments. After-acquired property may be devised when the intention is clear and explicit. Age and mind. Any person of full age and sound mind may dispose of all his property except what is sufficient to pay his debts, or what is allowed as a home- stead or other exemption for his wife and family. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing duly executed or proved. Execution must be in writing, duly signed and attested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or by some per- son in his presence, and by his express direction. Witnesses. Two disinterested and competent wit- nesses are necessary. Unless there be such witnesses no subscribing witness to a will can derive any benefit therefrom. See GENERAL FORMS, below. KANSAS. Codicils. See text, above, and WRITTEN WILLS, ETC., below Written Will-* and Testaments.? Age and mind. Any person of full age and sound mind and memory may give and devise his property of every description by last will and testament. Alteration and repeal, same as Iowa above. A will enclosed in an endorsed sealed wrapper may be deposited m the office of the judge of the proba'.e court, subject only to the order of the testator during his life, and after his death to be deli veied to the person named on it, or in absence of such name to b*. publicly opened in the probate court, within two mon | 'f>s after notice of death of testator. 374 CONVEYANCES. Execution must be by writing, duly signed and at- tested. Probate or proof. See text, above. A will exe- cuted, proved, and allowed in another State, may be admitted to record in the probate court of the county where property devised, etc., is situated, by producing an authenticated copy. Repeal. See ALTERATION, ETC., above. Signature must be at the end thereof by the testator or by some other person in his presence, and by his ex- press direction. Witnesses. It must be attested and subscribed in the presence of the testator by two or more competent Witnesses who saw the "testator subscribe or heard him ^knowledge the same. See GENERAL FORMS, post. Codicils. See texts, ante, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. All persons twenty-one years of age and of sound mind may bequeath and devise all his property by last will and testament. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, o by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be by writing, duly signed and at- tested. Probate or proof. See text, above. Wills are proved before and admitted to record by the county court of the county of testator's residence, or where the land lies, or where he is deceased. Repeal. See ALTERATION, ETC., above. Signature must be by the testator himself, or by some other person in his presence, and by his direction. See WITNESSES, below. Witnesses. If the will is not wholly written by the testator the subscription or signature must be made, or the will acknowledged by him in the presence of two credible witnesses, who shall subscribe their names to the will in the presence of the testator. See GENERAL FORMS, below. LOUISIANA. Mystic, Nuncupative, and Olographic Wills and Testaments. Execution, form, requisites, etc. Donations inter vivos or mortis causa, cannot exceed two-thirds of the property of the disposer, if he leaves at his decease a legitimate child ; one-half, if he leaves two children, and one-third, if he leaves three or a greater number. The name children included descendants of whateveiadegree they be, it being understood that they are only counted for the child they represent." 1 Donations inter -vivas or mortis causa cannot ex- ceed two-thirds of the disposer's property, if the dis- poser, having no children, leaves a father, mother, or both.* Any disposal of ^property, whether inter vivos or mor- tis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs. is not null, but only reducible to that quantum.* In all dispositions inter 7>ivos or mortis causa, im. possible conditions, those which are contrary to the laws, or to morals, are considered not written. Substitutions and/f<&< commissa are and remain prohibited. Every disposition by which the donee, the heir, or legatee is charged to preserve for, or to return a thing to a third person is null, even with regard to the donee, the instituted heir, or the legatee. The disposition by which a third person is called to take the gift, the inheritance, or the legacy, in case the donee, the heir, or the legatee does not take it, shall not be considered a substitution, and shall be valid. The same shall be observed as to dispositions inter vivas and mortis causa, by which the usufruct is given to one, and the naked ownership to another.* There are four different forms of wills : i. Nuncupative (or open) by public act. 3. Nuncupative by private act. 3. Mystic (or sealed). 4. Olographic. A nuncupative testament, under private signa- ture, must be written by the testator himself, or by any d-Civil Code, art. 1493. e-ld. art. 1494. f-Id. art. if*- ^-Id. art*. 1519-1523. n-Id. arts. 1581-1583. i- otlier person from his dictation, or even by one of the witnesses, in presence of five witnesses residing in ths place where the will is received, or of seven witnesses residing out of that place. Or it will suffice if, in the presence of the same number of witnesses, the testator presents the paper on which he has written his testa- ment, or caused it to be written out of their presence, declaring to them that that paper contains his last will. In either case, the testament must be read by the testa- tor to the witnesses, or by one of the witnesses to the rest, in the presence of the testator; it must be signed by the testator, if he knows how, or is able to sign, and by the witnesses, or at least two of them, in case the others know not how to sign, and those of the witnesses who know not how to sign must affix their mark. In the country, it suffices for the validity of nuncupa- tive testaments under private signature, if the testament be passed in the presence of three witnesses residing in the place where the testament is received, or of five witnesses residing out of that place, provided a greater number of witnesses cannot be had. 11 A nuncupative testament by public act must be received by a notary public in the presence of three witnesses, residing in the place where the will is exe- cuted, or of five witnesses not residing in the place. This testament must be dictated by the testator, and written by the notary as it is dictated. It must then be read to the testator, in presence of the witnesses. Express mention is made of the whole, observing that all these formalities must be fulfilled at one time, with- out interruption, and without turning aside to other acts. This testament must be signed by the testator ; if he declares that he knows not how, or is not able to sign, express mention of his declaration, as also of the cause that hinders him from signing, must be made in the act. This testament must be signed by the witnesses, or at least by one of them for all, if the others cannot write.' A mystic, or secret testament, is made in the fol- lowing manner : the testator must sign his dispositions, whether he has written them himself, or has caused them to be written by another person. The paper containing these dispositions, or the paper serving as their envelope, must be closed and sealed. The testator shall present it thus closed and sealed to the notary, and to seven witnesses, or he shall cause it to be closed and sealed in their presence. Then he shall declare to the notary, in the presence of the witnesses, that that paper contains his testament written by him- self, or by another by his direction, and signed by him, the testator. The notary shall then draw up the act of superscription, which shall be written on that paper, or on the sheet that serves as its envelope, and that act shall be signed by the testator, and by the notary and the witnesses. All that is above prescribed shall be done without in- terruption or turning aside to other acts; and incase the testator, by reason of any hindrance that has hap- pened since the signing of the testament, cannot sign the act of superscription, mention shall be made of the declaration made by him thereof, without its being necessary, in that case, to increase the number of wit- nesses. Those who know not how or are not able to write, and those who know not how or are not able to sign their names, cannot make dispositions in the form of the mystic will. If any one of the witnesses to the act of superscrip- tion know not how to sign, express mention shall be made thereof. In all cases the act must be signed by at least two witnesses J An Olographic testament is that which is written by the testator himself. In order to be valid it must be entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the S|ate. It suffices, for the validity of a testament, that it be valid under any one of the forms prescribed by law, however defective it may be in the form under which the testator may have intended to make it. Testaments made in foreign countries, or the other States or Territories of the Union, shall take effect in this State if they be clothed with all the for- malities prescribed for the validity of wills, In the place where they have been respectively ihade. k arts. 1578-1580. j-Id. arts. 1584-1587. k-Id. art* 1588-1506. CONVEYANCES. 375 The form of foreign wills is regulated by law of domicil. Testaments of persons employed in armies in the field, or in a military expedition, may be re- ceived by a commissioned officer, in presence of two witnesses. If the testator is sick or wounded they may be received by the physician or surgeon attending him, assisted by two witnesses. These testaments are sub- ject to no other formalities than that of being reduced to writing, and being signed by the testator, if he can write, by the person receiving them, and by the wit- nesses. The testament made in this form shall be null in six months after the return of the testator to a place where he has an opportunity to employ the ordinary forms. Testaments made during a voyage at sea may be received by the captain or master, in presence of three witnesses, taken by preference from among the passengers ; in default ol passengers, from among the crew. The testament made at sea can contain no dispo- sition in favor of any person employed on board the vessel, unless they be relations of the testator. This testament is subject to the same formalities as the pre- ceding one, and no others, and is not valid unless the testator dies at sea, or within three months after he has landed, in a place where he is able to make it in the ordinary forms. 1 Heirs. Ascendants and descendants are called forced heirs, because they cannot be deprived of a certain por- tion of the estate of their ascendants or descendants. The portion of which they cannot thus be deprived is called their legitimc, and that portion of his estate of which the testator may dispose is called the disposable portion. Witnesses. The following persons are absolutely incapable of being witnesses to testaments : 1. Women of what age soever. 2. Males who have not attained the age of sixteen years complete. 3. Persons insane, deaf, dumb, or blind. 4. Persons whom the criminal laws declare incapable of exercising civil functions. 5. Persons who are constituted heirs or named lega- tees, under whatsoever title it may be. Mystic testa- ments are excepted from this provision. See GENERAL FORMS, below. MAINE. Codicils. See text, above, and WRITTEN WILLS, ETC., below. I'll ti i-i I ten or Nuncupative Wills, Etc. Must be reduced to writing within six days, or it can- not be proved after six moi.ths, and cannot dispose of more than one hundred dollar's, wuh but three witnesses requested to be such. Written Wills and Testaments. Age and mind. AH persons must be of lawful age and of sound mind to execute a will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and at- tested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or by some per- son in his presence, and by his express direction. Witnesses. Three disinterested witnesses must be present at execution of a will and must all witness signa- ture of testator, and signatures of each other. See GENERAL FORMS, below. MARYLAND. Codicils. \ See text, above, and WRITTEN WILLS, BTC., below. , Written Wills and Testaments." ' Aga and mind. All persons must be, if male, twenty-one years of age : if female, eighteen years of age, and of sound and disposing mind, and capable of executing a valid deed or contract, in order to make a valid will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing duly signed and at- tested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or by some othel person in his presence, and by his express direction. Witnesses. At 1 ast two witnesses must attest and subscribe such will in the presence of the testator. Wills of personal properly are nut valid without witnesses. See GENERAL FORMS, below. MASSACHUSETTS. Codicils. Sec text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Every person of full age and sound mind may dispose of his or her real and personal estate by last will. Alteration and repeal, same as Maryland. A bequest to a subscribing witness, or to the hus- band or wife of such witness, unless there are three others, is void. Execution must be by writing, duly signed and at' tested. Probate or proof. See text, above. A will made out of this State, which might be proved and allowed according to the laws of the State or country in which it was made, may be proved, allowed, and recorded in this State, and have the same effect as though executed herein, according to the laws of this Commonwealth. Repeal. See ALTERATION, ETC., above. Signature must be by the testator himself, or by some person in his presence, and by his express direc- tion. 'Witnesses. It -must be attested and subscribed by three or more competent witnesses. See GENERAL FORMS, below. MICHIGAN. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Unwritten or Nuncupative Wills. Nuncupative wills are valid to dispose of estate not exceeding three hundred dollars, when proved by two competent witnesses. Soldiers in actual military service, and mariners on shipboard, may dispose of their wages and personal estate by nuncupative will. Written Wills and Testaments. Age and mind. F.very person of full age and sound mind may dispose of their property by will. Alteration and repeal, same as Minnesota. A living person may probate his or her own will, which probate is secretly kept until after death. Execution. No will (except it be nuncupative) is effectual to pass any estate, real or personal, unless it be in writing, duly signed and attested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or by some person in his presence, and by his express direction. Witnesses. It must be attested and subscribed in the presence of the testator, by two or more competent witnesses. Devisees and legatees are incompetent subscribing witnesses, unless there are two other witnesses who are competent. See GENERAL FORMS, below. MINNESOTA. Cod ic 5 Is. See text, above, and WRITTEN WILLS, ETC., below. Unwritten or Nuncupative Wills. Soldiers in actual military service and mariners while at sea may execute nuncupative wills. Written Wills and Testaments. Age and mind. Every person of full age and sound mind may devise real and personal property by will. No will shall be effective to pass real estate unless proved and allowed in Probate Court. Code 1889. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or ny some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. 1-Civil Code, Arts. 1507-1604. Ill-Code, Art. 93. 376 CONVEYANCES. Execution must be in writing, duly signed and at- tested. Probate or proof. See text, above. When executed according to the laws of this State they may, in the first instance, be probated here. It Is not settled that wills executed according to the laws of anotherState or coun- try (materially varying in general requisites) can be law- fully proved and allowed here. Repeal. See ALTERATION, ETC., above. Signature must be at the end thereof, by the testator himself, or by some person in his presence, and by his direction. Witnesses. It must be attested and subscribed in *iis presence by two or more competent witnesses. Beneficiaries are not competent witnesses. MISSISSIPPI. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Any person twenty-one years of age, and of sound mind, may make a last will. Alteration and repeal may be by burning, cancelling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direction, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and at- tested (except for nuncupative wills). Probate or proof. See text, above. They must be proven in the chancery court of the proper county, and there recorded Repeal. See ALTERATION, ETC , above. Signature must be by the testator, or some person in 'lis presence, and by his express direction. Witnesses. Two witnesses are necessary when lands are devised, and two also are necessary when per- tonalty is bequeathed. If the will be wholly written and signed by the testator l> witnesses are required See GENERAL FORMS below. MISSOURI. Codicils. See text above, and WRITTEN WILLS, ETC , below. Written Wills and Testaments. Age and mind. All males over twenty-one years |if age, and of sound mind, may devise real property. Persons over the age of eighteen years may bequeath personalty, and females may bequeath realty also. Alteration and repeal may be by burning, cancelling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direction, or by a new will or codicil, or other writing, duly executed or proved. Curlesy or dower cannot be affected by will unless accepted by non-rejection of the provisions of the will in that respect, etc. Execution must be by writing, duly signed and at- teued. Wills of non-residents must be executed accord- ing to the laws of this State to be effectual here. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator. Witnesses. Jt must be attested at the testator's re- quest by two witnesses. See GENERAL FORMS, below. MONTANA. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Unwritten or Nuncupative Wills May be made by a soldier while in actual service, or by a mariner at sea. Written Wills and Testaments. Age and mind. Persons over eighteen and of sound mind may dispose of their property, real and personal, by hist will Alteration and repeal may be by burning, cancel- ing, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and at- tested, and witsessed by two witnesses who must sign their names and write their places of residence, in the presence of testator and of each other, and at his request. r prpof, See text, above. Repeal. See ALTERATION, ETC., above. Signature must be at the end thereof, by the testator, or by some person in his presence, and by his express direction. Sec GENERAL FORMS, below. At; I! 51 AS HA. Codicils. See text, above, and WRITTEN WILLS, ETC., below. I' ii writ ten or Nuncupative Wills Are allowed, but under stringent statutory regulations. Written Wills and Testaments.') Age and mind. Persons of full age and sound mind may devise by last will. Alteration and repeal may be by burning, cancel- lii.g, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and at- tested. Probate or proof. All wills, duly proved and al- lowed in any of the United States, or any foreign coun- try, according to the laws thereof, may be admitted to probate here. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or by some one in his presence, and by his express direction. Witnesses. It must be attested and subscribed in the testator's presence by two or more competent wit- nesses. See GENERAL FORMS, below. NEVADA. Codicils. See text, above, and WRITIEN WILLS, ETC., below. Unwritten or Nuncupative Wills. No nuncupative will is valid where the estate exceeds one thousand dollars in value, nor unless proved by tw witnesses within three months after the testamentary words were spoken. Written Wills and Testaments. Age and mind. Every person over eighteen years of age, and of sound mind, may dispose of his or her property by will, subject to the payment of debts. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing (except nuncupative), duly signed and attested. Married women require the consent of their hus- bands annexed to the will. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature and seal must be by the testator or some other person in his presence, and by his direction. Witnesses. It must be attested by two competent witnesses in the presence of the testator. See GENERAL FORMS, below. NEW HAMPSHIRE. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Unwritten or Nuncupative Wills.* Nuncupative wills of personal estate not exceeding one hundred dollars in value are valid only when de- clared in the presence of three witnesses who were re- quested by the testator to bear witness thereto, in his last sickness, and at his usual dwelling, excepting when taken sick from home and dies before nis return A memorandum of such will must be reduced to writ- ing within six days, and presented for probate within six months. Written Wills and Testaments.' Age and mind. Persons of the age of twenty-one years, of sound mind, may execute a will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and at- tested. Probate or proof. See text, above. w-Revised Statutes, p. 81, \ 123, et ttt. d-G. S. 357. . S- 35* CONVEYANCES. 377 Repeal. See ALTERATION, vrc., above. Signature and Seal must be by the testator, or by some person in his presence, and by his express direction. Witnesses. It must be attested and subscribed in the testator's presence by three or more credible witnesses. Legatees or relatives ought not to be witnesses. See GENERAL FORMS, below. NEW JERSEY. Codicil*. See text above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Any person twenty-one years of age, not an idiot, lunatic, or of non-sane memory, may make a valid will ; but married women cannot affect their husbands' estates. A minor may make a will ap- pointing guardian for infant child. Alteration and repeal. Wills may be altered or re- pealed by burning, cancellation, destroying or obliterat- ing by testator himself, or by some one in his presence, or by his express direction, or by s new will, codicil, or other writing, duly executed and proved as wills are proved. Execution must be in writing duly signed, staled and attested. Foreign wills must be executed according to the laws of this State. Probate. A written will may be proved in 10 days, and a verbal will in 14 days, after death of testator. Signature and Seal must be by testator's own hand (by mark at least) and acknowledged by him. He must declare the will and signature to be his last will in the presence of two witnesses (three in verbal will), present at the time, who must subscribe their names thereto as wit- nesses in the presence of the testator and at his request. Devisees or legatees acting as witnesses void their ilevises and legacies, except as to charges on the estate 'or payment of debts. See GENERAL FORMS, below. NEW MEXICO. Codicil*. Sec text, above, and WRITTEN WILLS, ETC., below. Unwritten or Nuncupative \ViIis. Verbal wills must be proved by five witnesses, two of whom must swear that the testator was, at the time of making his will, in possession of a sound mind and cn- Hre judgment. The witnesses must all be present, see, und hear the testator speak, and each and every one of them must understand clearly and distinctly every part of the will. Written Wills and Testaments. Age, mind, etc. Persons of either sex may make a / alid will, excepting only : i . Males under fourteen years t>i' age and females under twelve, a. Insane persons and persons of unsound mind, during that condition. 3. Prodigals prohibited the administration of their estate l>y a court of competent jurisdiction. 4. Deaf and dumb )>y birth, unless they can write such wills by themselves. Execution. Written wills are irrevocable, except by fpecially mentioning it in a subsequent will, and either : ctiiim it out in full or by staling that he would have Mated it verbatim could he have remembered it, and de- Jaring that he thereby revokes the same. Probate or proof. Probate judges have power to qualify and approve wills, after hearing the evidence of the altesting witnesses, etc. Signature must be by the testator ; or, if he is unable to write, he may request some reliable person to sign for him. Witnesses. Two or more able and qualified wit- nesses, competent in a court of law, are necessary. See GENERAL FORMS, below. NEW YORK. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Codicils. Age and mind. All persons of full age and sound rtiind may execute a valid will. Males can bequeath personal property at eighteen : females at sixteen Alteration and repeal, same as New Jersey, above. Execution. In writing, duly signed and attested. No bequest to a charitable or religious corporation by one leaving a husband, wife, child, or parent, is valid to the extent of more than one-half the clear estate, nor to the extent of more than one-quarter the clear estate, unless made at least two months before death. Probate or proof. See text, above Signature and witnesses It must be subscribed to the end thereof, and must be subscribed by the testa tor in the presence of at least two competent witnesses ; or it must be acknowledged to each of such attesting witnesses, or to such of them as were not present at the making of such subscription, by the testator, to have been so made. The testator, at the time of making such subscription, or at the time of acknowledging the same, or both, if subscribed in the presence of one, and acknowledged after subscription to the other, must declare in the pres- ence of each witness that the instrument is his will. Each of the two attesting witnesses must sign his name as a witness at the end of the will, at the request of the testator. (The residence of the witnesses should be added.) See GENERAL FORMS, below. NORTH CAROLINA. Codicils. See text, above, and WKITTEN WILLS, ETC., below. Unwritten or Nuncupative Wills. Nuncupative wills may be made during the testator's last sickness, in his own habitation, or where he hao been previously resident for at least ten days, unless he died on a journey, or from home. They must be made in the presence of at least two credible witnesses, who must state that they were especially required to bear witness thereto. The estate disposed of cannot lawfully exceed two hundred dollars in value. It cannot be proved after six months from the making, unless it was put in writing 'within ten days from mak- ing, nor until notice has been given to the widow and next of kin to contest it if they think proper. Written Wills and Testaments.' Age and mind. All persons of full age and sound mind may execute a valid will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and at- tested. Wills made oui of this State, conveying real property therein, must be executed according to the laws of this State. Holograph wills may be made, but must be written altogether by the testator's own hand, and signed by him. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator. Witnesses. Two or more subscribing witnesses thereto are necessary. See GENERAL FORMS, below. OHIO. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Unwritten or Nuncupative Wills Maybe made in the last sickness, and are valid as to personal property if reduced to writing and subscribed by two competent, disinterested witnesses, within tea days after the speaking of the testamentary words. Written Wills and Testaments. Age and mind. Any person of full age and sound mind and memory may execute a valid will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and scaled. As against children and their legal representa- tives all bequests to any benevolent, religious, educa- tional, or charitable purpose are void, unless the will be executed one year before the decease of the testator.' Probate or proof. See text, above. If no person interested shall, within two years after probate, appear and contest the will, the probate is forever binding, saving against the rights of infants, married women, persons absent from the State, etc. Repeal. See ALTERATION, ETC., above. Signature must be at the end thereof by the testator, or by some other person in his presence and by his ex- press direction. Witnesses. It must be attested and subscribed in the presence of the testator by two or more competent e-Battles Rev. Ch. 119. f-Laws, 1874, March 30. CONVEYANCES. witnesses, who saw the testator subscribe, or heard him acknowledge the same. See GENERAL FORMS, below. OREGON. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Every person twenty-one years of ge and upwards, of sound mind, may execute a will devising all his estate, saving to the widow her dower. Every person of the age of eighteen years may dis- pose of all his personal property by will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing duly executed or proved. Execution must be in writing, duly signed and attested. Married women may execute a valid will subject to the husband's right as a tenant by the curtesy. Probate or proof. See text, above. Copies of the will, when duly executed, and the probate thereof, may be recorded in the same manner as wills executed and proven in this State, and will be admitted in evidence in the same manner and with like effect. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or by some other person in his presence and under his express direction, and such person signing the testator's name must sub- scribe his own name as a witness, and state that he subscribed the testator's name at his request. See WIT- NESSES, below. Witnesses. It must be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator. See SIGNATURE, above. See GENERAL FORMS, below. PENNSTI/TANIA. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Unwritten or Nnncnpative Wills. Unwritten or nuncupative wills, disposing of per- sonal property, may be made by persons during their last sickness, at their own dwelling, or while travelling and before reaching home, and by mariners at sea, and soldiers in actual military service. Proof must be by two witnesses, that the person de- sired those present to bear witness that such was his will. Written Wills and Testaments. Every will must be in writing, unless the person making the same is prevented by the extremity of his last sickness. Age and mind. Must be of sound mind, and over twenty-one years of age. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing duly executed or proved. Execution must be at least one calendar month be- fore the death of the testator, for charitable purposes. Heirs, etc. The testator's whole estate in the prem- ises devised passes without words of inheritance, unless 't appear from the will that he intended to pass a less estate. Probate or proof. See text, above. Realty acquired after the execution of the will parses with a general devise unless a contrary intention appears upon the face of the will. Repeal. See ALTERATION, ETC., above. Signature must be by the testator. Or by some per- son in his presence, and by his express direction, at the end thereof. A mark is a good signature. Witnesses. In all cases two or more competent witnesses are necessary, otherwise the will has no effect. See GENERAL FORMS, below. RHODE ISLAND. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Every person of twenty-one years of age, and of sound mind, may dispose of all their property by will. Every person eighteen years of age and upwards may bypath ail their personal property by will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or oy some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing duly executed or proved. Execution must be in writing, duly signed and at- tested. Married woman cannot impair the rights of her husband upon her death as tenant by the curtesy. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or by some person in his presence and by his express direction. Witnesses. It must be attested and subscribed ID the presence of the testator by two or more witnesses, or it will be utterly void and of no effect. See GENERAL FORMS, below. SOUTH CAROLINA. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. All persons of lawful age and of sound mind may execute a valid will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express di- rection, or by a new will or codicil, or other writing duly executed or proved. Execution must be in writing, duly signed and at- tested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator. 'Witnesses. It must be attested and subscribed by three or more witnesses. See GENERAL FORMS, above. TENNESSEE. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Unwritten or Nuncupative Wills. Nuncupative wills, disposing of estate not exceeding in value two hundred and fifty dollars, may be made during last sickness, in the testator's own habitation, or where he has been previously residing ten days at least, except he be surprised by sickness on a journey to or from home, and dies without returning. Such will cannot be proved after six months from its making unless it were put in writing within ten days after the testamentary words were uttered, and not until the widow or next of kin are called to contest the same. Written Wills and Test aineiits. b Age and mind. Every person of full age and of sound mind may execute a valid will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing duly executed or proved. Execution must be in writing, duly signed and at- tested. It may be entirely written and signed by the testator, but his handwriting must be proved by at least three credible witnesses. Married women, of age, may dispose of any estate in lands or personalty, by will in writing, subscribed by hcisclf, or by some other person in her presence and by her direction, and the subscription must be made, and the will acknowledged by her, in the presence of at least two witnesses subscribing the will with their names, in the presence of the testatrix." Probate or proof. Wills executed in other States, Territories, or the District of Columbia, must be proved according to the laws of this State. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or some othei person, in his presence and by his direction. Witnesses. It must be attested and subscribed in the testator's presence by at least two witnesses, neither of whom must be interested in the device of the testa- tor's lands. None necessary to wills of personalty. TEXAS. Codicils. See text, above, and WRITTEN WILLS, ETC., below -G. S. Ch. 171. 1 Ode, $116$. et stf. c-Code $ ai68, 2486 a, 24&6f; Law*, 1870, March a. CONVEYANCES. 379 I'nwrltton or Nuncupative wills may be made during ; m.-rson's lart sickness, at one's own habitation, or lu.re ihey may reside for ten days preceding death, or wlicre they sicken and die from home. One witness must take notice and bear testimony that such was the person's will or words of like import. Cannot devise realty After six months from the time of speaking the testa- mentary words no testimony to prove such a will can be admitted, unless the same or the substance thereof was committed to writing within six days after the same was spoken by the deceased. Written Wills and Testaments. Age and mind. All persons twenty-one years of age and upwards and of sound mind may dispose of all their property, real and personal, by last will and testament. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be by writing, duly signed and at- tested. Probate or proof may be by the testimony of one of the subscribing witnesses, or if none be living, are of unsound mind, or absent from the State, then the testi- mony of two witnesses to the handwriting of the sub- scribing witnesses, and of the testator, or that he was unable to write. If the will is in the handwriting of the testator, then the testimony of two witnesses is necessary to it. If the will be of a person not resident of the State at the time of his death, and has been regularly probated according to the laws of any other State, Territory, or country, then a copy of such will and probate, attested by the clerk of the court in which the same was ad- mitted to probate, under the seal thereof, if there be a seal, together with that of the judge, chief justice, or magistrate of the court in which the will was probated, that such attestation is in due form, it is sufficient here. Repeal. See ALTERATION, ETC., above. Signature must be by the testator. Witnesses. Two or more must attest and subscribe their names thereto. See GENERAL FORMS, below. VERMONT. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. All persons, including married women, of full age and sound mind may execute a valid will. Females are of full age at eighteen years. Alteration or repeal. " No will shall be revoked except by implication of law, otherwise than by some will, codicil, or other writing executed as provided in the case of wills, or by burning, tearing, cancelling, or obliterating the same with the intention of revoking it, by the testator himself, or by some other person in his presence, or by his express direction." R. L. 2047. Execution must be in writing and signed by the testator, or by testator's name written by some other person in his presence and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. R. L. 2042. Probate or proof must be made in the probate court. A will made out of the State and proved or allowed according to the laws of the State or country where made, may be proved, allowed, and recorded in this State, and thereupon have the same force and effect as though made here. See GENERAL FORMS, below. VIRGINIA. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Every person of twenty-one years of age and of sound mind may make a valid will of realty and personalty. Persons eighteen years of age may make wills of per- sonalty. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be by writing, duly signed and at- tested. Married women may dispose of their separate estate by will. Probate or proof. When a will affecting property within this State is proved without the same, an authen- ticated copy thereof, and certificates of probate thereof; entitles it to probate here, in the probate court. Repeal. See ALTERATION, BTC., above. Signature must be by the testator, or some other person in his presence, and by his direction. See WIT- NESSES, below. Witnesses. Unless wholly written by the testator, the signature must be made or the will acknowledged by the testator in the presence of at least two competent witnesses, present at the same time ; and such witnesses must subscribe the will in the presence of the testator. See GENERAL FORMS, below. WASHINGTON. Codicils. See text, above, and WRITTEN WILLS. ETC., below. Written Wills and Testaments. Age and mind. Every male person twenty-one years of age, and female person eighteen years of age, of sound mind, may execute a valid will, devising real and personal property, or either. Alteration and repeal may be by burning, cancel- ling, tearing, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a subsequent will or codicil, or other writ- ing, duly executed or proved. Execution must be by writing, duly signed and at- tested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or some person in his presence, and by his direction. Witnesses. Two or more must attest and subscribe the same in the presence of the testator. See GENERAL FORMS, below. WEST VIRGINIA. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments. Age and mind. Every person of twenty-one years of age and upwards, being of sound mind, may dispose of any estate, real or personal, by last will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be in writing, duly signed and at- tested. Probate or proof. See text, above. Repeal. See ALTERATION, ETC., above. Signature must be by the testator, or some other person in his presence, and by his direction, in such manner as to make it manifest that the name is intended as a signature. See WITNESSES, below. Witnesses. Unless the will is wholly written by the testator the signature must be made or the will acknowl- edged by the testator in the presence of at least two competent witnesses, present at the same time; and such witnesses must subscribe their names to the will in the presence of the testator. See GENERAL FORMS, below. WISCONSIN. Codicils. See text, above, and WRITTEN WILLS, ETC., below. Written Wills and Testaments.* Age and mind. Every person of full age and sound mind may execute a valid will. Alteration and repeal may be by burning, cancel- ling, destroying, or obliterating by the testator himself, or by some one in his presence, or by his express direc- tion, or by a new will or codicil, or other writing, duly executed or proved. Execution must be by writing, duly signed and at- tested. Probate or proof. No will is effectual to pass real estate unless proved and allowed in the county court. The copy of a foreign will, duly executed and probate thereof duly authenticated, may be proved, allowed, and recorded by the county court where the estate affected U situated. d-Paschal Dig. Arts. 3868, 5361-5374, 5536-5544. e- R. S. Ch. 97; Tay. St. 1207. jft> CONVEYANCES. Repeal. See ALTRRATION, ETC., above. Signature must he by the tesiator, or some ctber person in h's presence, and by his express direction. Witnesses. It must be attested and subscribed in the presence of the testator by two or more competent witnesses. See GENERAL FORMS, below. WRITTEST WII.I, FORMS VARIOUS DETAILS. Introductions in Written Wills mid Testament**. The will of A. B., of , merchant: I, A. B., of , farmer, make this, my last will : The last will and testament of me, A B., of , made this day of : I, A. B. , of , merchant, declare this (or the following; to be my last will and testament: I, A. B., of the town of , in county, and State of , merchant, declare this to be my last will and testament : In the name of God. Amen. I, A. B., of , mariner, being forthwith to de- part on a voyage, do make this, my last will, as follows : I, A. B., of the of , grocer, do make and publish this, my last will and testament, hereby revoking and making void all former wills by me at any time heretofore made : I, A. B., of the township of , in the county of , and State of , do make and publish this, my (first as we'.l as) last will and testament, in the manner following, to wit: I, A. B., of , in the county of , and State of , farmer, being of sound mind, memory, and understanding, do make and publish this, my last will and testament (hereby revoking and making void all former wills by me at any time hereto- fore made) : In the name of God. Amen. I, A. B., of the county of , in the State (or Commonwealth) of .farmer, being weak in body (or in perfect health of body), and of sound mind, memory, and understanding, but considering the uncertainty of this transitory life, do make and publish this, my last will and testament, in the manner and form following, to wit: Know all men by these presents: That I, A. B., of , in the county of , and State (or Commonwealth; of , counsellor at law, being in good health (or being in ill health), and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me at any time heretofore made : In the name of God. Amen. 1, A. B., of , in the county of , and State (or Commonwealth) of , being sick and weak in body, but of sound mind, memory, and under- standing, and considering the certainty of death, and the uncertainty of the time thereof, and to the end that 1 may be better prepared to leave this world whenever it shall please God to call me hence, do therefore make and declare this, my last will and testament, in the manner fol- lowing, that is to say : In the name of God. Amen. I, A. B., of , being in good health of body, and of sound and disposing mind and memory, and bsing desirous to settle my worldly affairs while I have strength and capacity, do make and publish this, my last will and testament (hereby revoking and making void all former wilU by me at any time heretofore made). And first and principally I commit my soul into the hands of my Creator who gave it ; and my body to the earth, to be interred at , In , at the direction of my executors, hereinafter named. And as to such worldly estate where- with it has pleased God to intrust me, I dispose of the same as follows : I, etc. I, W. B., wife of A. B., of , csq., do, by this, my writing, purporting to be my last will and testament, dispose of my estate, pursuant and according to the authority to me given and re- served in and by a deed of settlement, made on my marriage with the said A. B., bearing date, etc. (here set forth the date ami parties to the settle- ment], and by virtue of the said deed, and of all other powers and authorities whatsoever to me given or reserved, in manner as follows, viz. : Various Clause**. Condition*. Declara- tion*. Directions, Power**, Provision*, Etc., Etc. ADVANCEMENTS TO BE DEDUCTED. I declare that all such moneys as I have or shall have advanced to any of my said children, or as shall be owing to me from any of them at my de- cease, shall be considered as part of my residuary estate, and shall be deducted from his, her, or their respective shares. ADVANCEMENTS NOT TO BE A SATISFACTION OP DEBTS. I direct that no legacy or gift contained in my will shall (except where a contrary intention is ex- pressed) be taken to be in satisfaction of any debt owing by me ADVANCEMENTS NOT TO BB A SATISFACTION OF POKTIONS. I declare that such advancements as I may have made, or may hereafter make, to any of my chil- dren (or nephews and nieces, etc.), shall be in addi- tion to, and not in satisfaction of, any legacies, portions, or other benefit given them by my will. ANNUITY POWEK TO GKANT IN THE NATURE OP A JOINTUKE. Provided also, and my will nevertheless further is, that my said grandson, G. N., the younger, by any deed or deeds in writing, to be sealed and delivered by him, my said grandson, in presence of, and attested by, two or more credible wit- nesses, to grant, limit, or appoint any rent or an- nual sum to be issuing and payable out of all or any of the said premises, etc., which are herein- before given or limited to him for his life, re. mainder as aforesaid, unto and to the use of any woman or women he shall marry, for and during the life or lives of such woman or women re- spectively, for or in nature of her or their jointure or jointures, and in bar of dower, such rent or annual sum to take effect from the death of the survivor of my said daughter and grandson G. N.,the younger, and be payable half yearly or quarterly, on or at such days or times as he shall think fit, but so as such rent or annual sum do not exceed per annum tax free, for or in re- spect of every , or the value thereof in free- hold or leasehold estates, which my grandson, G. N., the younger, shall actually have and receive, or become and be entitled to, as and for the por- tion or fortune of each such woman respectively, and so in proportion for any greater or lesser sum than , which he shall actually have and re- ceive, or become or be entitled to as aforesaid, and by the same deed or deeds, to give and grant to such woman or women respectively, and her or their assigns, such power and remedies, by entry and receipts of the rents and profits of the premises, for recovering such rent or annual sum, when in arrear, and to grant, limit, and appoint the hereditaments and premises chargeable there- with, to any trustee or trustees, for any term or number of years, as to my said grandson, G. N., the younger, shall seem meet, to commence from the death of the survivor of my said grandson and daughter, for the better securing the payment of such rent or annual sum, so as such term of years be made determinable or defeasible upon the payment of the said rent or annual sum of dollars, thereby secured, and all arrears thereof, together with all costs and charges (u CONVEYANCES. 381 any) incident thereto, and such grants, limitations, or appointments as aforesaid to be made either before or after such marriage, etc. ANNUITY PREVENTING ANNUITANT FROM PARTING WITH i r. I do hereby expressly declare and direct, that in case my said nephew N. W. shall alien, sell, assign, incumber, or transfer, or in any manner dispose of or anticipate the said annuity or yearly sum of dollars, or any part thereof, then and in such case, and from and immediately after such alienation, sale, assignment, or transfer, the said bequest so made thereof as aforesaid, and _t!ie use and estate so given to him therein, shall fcease and be void to all intents and purposes as it the same had not been mentioned in this my will, or as if the said N. W. were naturally dead. APPOINTMENT GUARDIAN, AND SUBSTITUTES, ETC. That I have committed and disposed, and by these presents do commit and dispose, unto G. N., of the said borough, the custody, tuition and education of my son, S. B., from and immediately after my decease, until my said son shall attain the age of twenty-one years. And if it shall happen that the said G. N. dies before me, or before my said son attains the age of twenty-one years, then and in such case, I do commit and dispose unto E. F., of the borough and State aforesaid, such custody, tuition and education, after my de- cease and the decease of the said G. N., until my said son shall have attained the age of twenty-one years, and desire the said E. F. to take upon him the charge, for the good of my said son. ANOTHER. In case I shall leave any child or children liv-ng at the time of my decease, my will is, and I do appoint, that my said beloved wife shall have the guardianship and tuition of them during their minority, so long as she shall continue to be sole ; and in case of her death or marriage during the minority of such my children, then 1 will and ap- point that my much esteemed friend, F. D., shall have the tuition and guardianship of them during such their minority ; and in case of his refusal, renunciation, or decease, I will that my other executor, E. X., shall exercise the said guardian- ship. I desire that the utmost care may be given to the moral training and education of my chil- dren, if any such shall happen to survive me ; and that they may be brought up and instructed in the doctrines and religion of the Church. APPOINTMENT EXECUTORS AND SUBSTITUTES, ETC. I do hereby nominate and appoint my sons, S. B. and O. B. (or my friends, E. X. and T. R. ), to be the executors of this my last will and testament, hereby revoking all former wills by me made. APPOINTMENT EXECUTORS. I appoint my wife, W., and A. B. and C. D. to be executors (and trustees) of my will: (but if my wife should marry again, she shall thereupon cease t j be an executor and trustee of my will, which shall thenceforth take effect, and be executed in the same or in like manner as if the said A. B. and C. D. had been originally appointed the sole trustees and executors. ANOTHER. And I do hereby nominate, constitute, and appoint my said wife, together with the said trustees, to be my executrix and executors of this my will, and in the case of the death of any two or more of them, before the trusts of this my will shall be fully executed and performed, then I do nominate, constitute, and appoint my two eldest sons, for the time being, when they shall respectively have attained the age of eighteen years, to be executors of this my will, in the place and stead of such two or more of them , my said wife and the said trustees, as shall so die before the trusts of my said will shall be fully executed and performed, and with all the same power and powers, authority and authorities, to all intents and purposes whatsoever, as such executrix or executors, who shall so happen to die, had or might have under and by virtue of this my will, at the time of his or her death. ARBITRATION, ETC. My express will and desire is, that if any differ- ence or dispute, question or controversy, shall arise or happen concerning any gift, bequest, or other matter or thing in this my will, the same shall be referred wholly to the award, order, and determination of my esteemed neigh- bors, N. R. and R. S., with power for them to choose an umpire ; but if they or either of them should not be able or willing to act in the prem- ises, then I do direct that my eldest son and el- dest daughter shall each appoint an arbitrator or arbitrators, with the same power of choosing an umpire; and what they or a majority of them shall order, direct, or determine therein, shall be binding and conclusive to and on all and every person and persons therein concerned. ARRANGEMENT OR COMPROMISE POWER TO. I appoint the said E. X. and T. R. executors of this my will ; and authorize the acting executors or executor for the time being of this my will to satisfy any debts claimed to be owing to me or my estate, and any liabilities to which I or my estate may be alleged to be subject, upon any evidence they or he shall think proper, and to ac- cept any composition or security for any debt, and to allow such time for payment (either with or without taking security) as to the said acting executors or executor shall seem fit, and also to compromise, or submit to arbitration, and settle all accounts and matters belonging or relating to my estate, and generally to act in regard thereto as they or he shall deem expedient, without being responsible for any loss thereby occasioned. ASSIGNMENT TO NEW TRUSTEE TO PREVENT TRUST GOING TO EXECUTOR OR ADMINISTRATOR. I do hereby further order and direct, that when and so often as either of my said trustees shall happen to die, that then the survivor of >hem shall and do forthwith assign, or cause to be as- signed, my said leasehold houses, etc., and all his estate, term and interest therein, to one or more new trustee or trustees, to be nominated by the person or persons, who for the time being shall be entitled to the rents and profits thereof by virtue of this my will, in such manner as that the legal interest thereof may be revested in such survivor and the person or persons who shall be so nominated for that purpose as aforesaid, upon the trusts aforesaid, and so from time to time, and as often as the present or any succeeding trustees shall be reduced by death to one ; to the end that the same trust may not go or descend to an executor or administrator. BEQUESTS. See WRITTEN WILLS, ETC., below. CHILDREN BORN AFTER DEATH OP TESTATOR PRO- VISIONS FOR. I give and bequeath to my wife, W. B., the sum of , in trust for any child, or children, by me begotten, which may be born of her subsequent to the time of my decease, which said sum of money is to be paid to such child, or divided equally between them, when he, or she, or they, shall have arrived at the age of twenty-one years. CHILDREN BORN AFTER THE EXECUTION OF A WILL. I give, bequeath, and devise, all the rest, resi- due and remainder of my real and personal estate, to my children now living, or who may be living at the time of my decease, to be divided equally between them, share and share alike. ANOTHER. I give and bequeath to each and every one of my children born subsequent to the execution of this my last will and testament, the sum of dollars, to be paid in the same manner as the other legacies hereinbefore mentioned. CHILDREN CUSTODY AND TUITION OF. And I do hereby dispose of and commit the tuition and custody of my children, C. B., L. B. , and D. B., and every one of them, for such time as they or any of them respectively continue un- married and under the age of twenty-one years, unto my wife, W. B., provided she remains my 3** CONVEYANCES. custody to my executors hereinafter nominated and appointed. DBBTS DUE FROM RELATIONS RKLFASE OF, ETC. Whereas, there being considerable sums of money due and owing to me upon bonds, bills, and otherwise, from my relations hereinbefore named, which I desire to release, I do hereby direct that all such evidences of debt shall be cancelled and destroyed by my executors imme- diately after my death ; and 1 hereby discharge my relations hereinbefore named, and their heirs, executors, and administrators, from the payment of any debts due and owing to me or my estate, upon any account whatsoever, without any abate- ment of the legacies hereinbefore given to them respectively. DEBTS ANOTHER ON CONDITION OF WILL BEING UNMOLESTED. Whereas my brother, B. B., stands justly and duly indebted to me in several sums of money, which I have, for several years now last past, paid, lent, and advanced to and for him and his use, amounting in the whole to the sum of dollars, and upwards; my will therefore is, that in case he shall give no trouble or molestation to my ex- ecutors hereafter named, in the execution and performance of this, my last will and testament, I do hereafter remit and release unto him the said debt of dollars, and that he shall not be an- swerable or accountable to my executors for the same : But in case he shall give any trouble, mo- lestation, or disturbance to them, or either of them, for or on account of anything in this, my will contained, then I give the said dollars to my executors, upon the trusts, intents, and pur- poses in this, my last will mentioned, and in aid of the full execution and performance of the same. DISPUTES SUBMISSION TO ARBITRATION, ETC. I hereby order and appoint, that if any differ- ence shall arise or happen, concerning any gift, bequest, or other thing in this will, no suit snail be brought concerning the same, but the same shall be referred wholly to the award of my friends A. R. and T. S., both of , and what they shall order, direct, or determine therein, shall be binding and conclusive on all persons concerned. ANOTHF.R. And I do hereby order and appoint, that if any difference, dispute, question or controversy, shall be moved, arise or happen, concerning any gift, bequest, or other matter or thing in this, my will, given and bequeathed, expressed or contained, that then no suit or suits in law or equity, or otherwise, shall be brought, commenced, or prosecuted for and concerning the same, but the same shall be referred wholly to the award, order, and determination of my loving friends, A. R. and T. S., both of , and what they shall order, direct, or determine therein shall be bind- ing and conclusive to all and every person and persons therein concerned. DISPUTES CONCERNING VALIDITY OF WILL, ETC. Provided always, that if any person or persons, to whom any estate or interest is given or lim- ited, by this, my will, shall in any court of law or equity, or otherwise, controvert the same, or dis- pute or call in question the validity thereof, or of any of the estates, limitations, powers, provisos, or dispositions, hereby limited, or given, or made, or herein contained, then, and in such case, the estates, interests, limitations, etc., so hereby lim- ited, etc. , to or in favor of such person or persons, so controverting my said will, shall cease, deter- mine, and be absolutely void, to all intents and purposes whatsoever, as if such person or per- sons was or were naturally dead : And then, and from thenceforth, such estates, interests, limita- tions, powers, provisos, and dispositions, shall go and belong to, and be vested in the person or per- sons who, by virtue of this, my will, shall be next in remainder, after the person or persons so dis- puting as aforesaid. Provided, he, she, or they shall not controvert or dispute the validity of this, my will, or of any of the devises, limitations, powers, provisos, or dispositions herein con- tained, or hereby made. sn WIPE TO RF.SIDH IN DUXMKS WIDOWHOOD, ETC. Also, I further give and devise unto my said dear wife the use and occupation of my dwelling- house of , in the said county of , with the gardens and offices thereunto belonging, and also acres of land adjoining thereto, called , to be enjoyed by her so long as she shall continue my widow and shall choose to reside in the said dwelling-house ; and I do direct my trustees of the said term of years hereinafter limited, to permit her to reside in, use, and occupy the same accordingly. ANOTHER. And my will is, that my said wife shall and may reside in the house wherein I now dwell, situate at aforesaid, in case she shall think proper so to do, and shall and may have and enjoy the use of all my furniture, plate, linen, china and glass, which shall be therein at my decease, for and during her life, if she shall so long continue my widow and unmarried, but not otherwise. And in case she shall think proper to quit the said house at any time after my decease, then I give and bequeath unto her, my said wife, the sum of dollars, in order to settle her in, and furnish for her any other habitation she may choose to reside in. INVESTMENT OF PERSONAL ESTATE, FOR USE OF DAUGHTER. I do authorize, empower, and direct the said E. X. and T. R., and the survivors and survivor of them, after payment of my just debts and in- cidental charges by course of administration, to retain and keep in their own hands, during the life of the said H. D.,all my personal estate then remaining, and the same to invest in bank or other stock, or put out at interest on good secur- ity, and the interest and income thereof annually, at such times and places, and in such proportions as they shall judge expedient, to pay to my said daughter during her life, for her sole and separate use. And if my said daughter shall survive the said H. D.,then, on his decease, to pay the whole of said personal estate to her, to her own use for- ever ; but if she shall not survive the said H. D., then during his life, after her decease, to appro- priate the same interest and income thereof to the maintenance and education of her children, or any, or either of them, as they shall judge expe- dient, and after the death of the said H. D. to distribute the whole of said personal estate among said children, to their respective use for- ever; and the legal representatives of any child who may have deceased to be entitled to the same share as his or her parent would have been if then living. And I do further authorize and empower the said E. X. and T. R., and the survi- vors and survivor of them, during the life of the said H. D., in case they shall judge expedient, to appropriate the whole, or any part of the princi pal of my said personal estate, either to the sup- port and maintenance of my said daughter dur- ing her life, or after her decease to the education and maintenance of all, or any, or either of her children. MARRIAGE OF DAUGHTER WITHOUT WIDOW'S CON- SENT. Provided also, that in case my said daugh- ters shall, before their respective ages of twenty* one years, intermarry with any person or per- sons, against or without the consent of my said wife, if then living, but if dead, without the consent or approbation of my said executors, OP the survivor of them (such consent as aforesaid to be testified by writing under tlie respective hands and seals of my said wife, or of my said executors) ; then, and in such case, the interest only, after the rate of per cent, on the portion or portions of such daughter or daughters so marrying without such consent as aforesaid, shall be paid to her or them during her or their respective life or lives, for her or their sole and separate use and benefit, exclu- sive of any husband ; and that upon the death of such daughter or daughters, marrying without such consent as aforesaid, the portion or portions, so given or intended for such daughter or daugh- CONVEYANCES. 383 ters, shall go and be paid to, and for the use and benefit of all and evei y the child or children of such daughter so marrying without such consent as aforesaid ; the same to be divided equally to and amongst them, share and share alike (if more than one), and to be paid to such child or children, at his, her, or their respective age or ages of twenty-one years, or day or days of marriage, which shall first happen, together with interest for the same after the rate aforesaid, from the time of their respective mother's death until the sume become payable and be paid. MARRIAGE OF NIBCES WITHOUT PARENTS' CONSENT. Provided always, and my will and meaning is, that if any or either of my said three nieces, at any time hereafter during the lifetime of their father and mother and the said T. T. (the trustee >, or the survivors or survivor of them, do and shall marry and take to husband any person or per- sons, without the approbation and consent of their said father and mother, and the said T. T., or of two of the survivors of them, in writing, under his or their hand or hands, first had and obtained, then, and in such case, all and every '.he devises, bequests, and legacies, and every of them, shall cease, determine, and become abso- utely void, frustrated, and of none effect in law or equity, to all intents and purposes whatsoever ; and then and from thenceforth, and after such marriage and marriages without such approba- ion as aforesaid, I do give, devise, and bequeath all and singular the messuages, etc., money, and ill other the benefit and advantages of all and every the matters and things hereinbefore given, devised, or bequeathed, or which by virtue of ihis, my will, might have been had, claimed, or demanded, by such of my said nieces as shall so tnarry and take husband without such approba- tion and consent as aforesaid, in case she had married, etc., with such approbation, etc., to such of my said nieces, their heirs, etc. , as shall not then De married, or if married, to her or them, who hath ar have taken and married a husband by and with such approbation and consent as aforesaid. NAME OF TESTATOR TO BE TAKEN WITH ESTATE. Provided always, and my will nevertheless is, that, if the persons to whose use the said free- nold, etc., etc., are hereinbefore devised or lim- ited, in remainder from and after the decease of my said daughter, D. B., do not and shall not, as and when they shall severally, by virtue of the devises and limitations hereinbefore contained, become and be entitled in possession to the said premises, etc., respectively, or to receive and take the profits thereof, use, assume, and take upon themselves respectively, the surname of B., and by the said surname of B. only, and no other, from thenceforth forever, thereafter continue to name, style, and write themselves, in all deeds, instruments, and writings, and use their utmost endeavors for procuring and obtaining his majes- ty's license and authority for their respective as- suming and taking the said surname of B. only, or shall refuse, decline, or neglect so to do, for the space of six calendar months after they shall sev- erally become and be so entitled as aforesaid, and be of the age of twenty-one years or upwards : Then, and as often as the case shall so happen, the estate and interest of him, her, or them so refusing, declining, or neglecting as aforesaid, of and in all the said premises, etc., hereinbefore given and devised, shall from thenceforth cease, determine, and be void, in such and the same manner to all intents and purposes whatsoever, as if he, she, or they so refusing, declining, or neglecting as aforesaid, was or were actually dead without issue, anything hereinbefore con- tained to the contrary thereof notwithstanding. REPAYMENT OF LOANS BY CHILDREN. It is my will that whatever sum or sums of money I have loaned or may loan to any or either of my children, and which may remain unpaid at the time of my decease, shall be considered as a part of my said residuary estate. REVOCATION OF BEQUESTS AND LEGACIES IP WIFE SUES FOR DOWER, OR THIKD, ETC. Provided further, that in case my said wife 25 W. shall not accept of the provisions and leg- acies hereinbefore by me made and given her as aforesaid, and shall, at any time or times here- after, prosecute any action or suit for dower, thirds, or any other part of my estates, real or personal, other than what I have so hereinbefore devised and given her, then and in that case the several annuities of , and amounting together to , and each of them, and all other legacies and bequests hereby by me before given or in- tended to be given to her, shall cease and be void to all intents and purposes, anything to the con- trary notwithstanding. SALE POWER OF, ETC., To SUPPORT DAUGHTER. I do hereby authorize and empower the said E. X. and T. R., and the survivors and survivor of them, during the life of the said H. D., if thev shall judge expedient, either in the lifetime of my said daughter, for her support and mainte- nance, or after her decease in the lifetime of the said H. D., for the maintenance and education of her children, or any or either of them, to sell and convey, for such prices as they shall deem proper, in fee simple, or for any less estate, all or any part of my messuages, lands, and tenements aforesaid, and the whole proceeds of such sale or sales, or any part thereof, or the interest and income thereof, from time to time, and at such times and places, in such proportions as they may judge expedient, to appropriate to all or any of the purposes aforesaid ; and after the decease of the said H. D. to pay the whole proceeds of such sales then remaining unto my said daughter, if living, for her own use forever ; otherwise, to distribute the same among her children, to their respective uses forever, as tenants in common ; and the legai representatives of any child, who may have deceased, to be entitled to the same share as his or her parent would have been, if then living. ANOTHER. I do further authorize and empower the said E. X. and T. R., and the survivors and survivor of them, in case my personal estate shall be in- sufficient to pay my just debts and incidental charges, to sell and convey in fee simple, or for a less estate, and for such prices as they shall judge expedient, such parts of my messuages, lands, and tenements aforesaid, as may be neces- sary for that purpose, and the proceeds of such sale or sales to appropriate thereto. And further, the receipt or receipts in writing of my said daughter to the said E. X. and T. R., or either of them, for any sums of money paid to her by virtue of this will and testament, shall be a good and sufficient discharge unto them, and every of them, therefor, her coverture notwith- standing. SUIT BY WIFE, ETC. See REVOCATION, ETC., abore. WINDING UP TESTATOR'S BUSINESS, ETC. With respect to my share and interest In the business of , now carried on by me at , in partnership with , under the firm of and Co., I empower the executors or executor for the time being of this my will, to adjust and settle all accounts and transactions relating to the said partnership business, and to wind up the affairs and concerns thereof and ascertain the amount of my share and interest therein, either according to the provisions of the articles of partnership under which the said business shall be carried on at my decease, or upon such other terms and in such other manner as may be agreed on between them or him and my surviving partners or part- ner, with power for the said executors or execu- tor to refer to arbitration, or otherwise to com- promise or settle any question that may arise in or about the winding up of the said concern, in such manner as they or he may think fit, and generally to do and execute all such acts and things in relation to the premises as may appear to them or him necessary or expedient, without being answerable for any loss which may arise thereby. And I authorize the said executors or executor, if they or he shall in their or his discretion think fit, to permit the whole or any part of the amount 3*4 CONVEYANCES. which on taking the accounts of the said partner- ship shall appear to be due to my estate, as and for my share and interest in the said business, to remain in the said business as a loan for any pe- riod not exceeding seven years from my decease, but so that the repayment thereof, with interest after the rate of per cent, per annum, shall be secured by the joint and several bond of the persons or person for the time being, continuing to carry on the said business either with or without any other security for the same, as the said executors or executor shall think fit : And subject to the provisions hereinbefore con- tained as to the said business, I empower my trustees or trustee to postpone the sale and con- version of my real and personal estate for so long as they or he shall think fit. Conclusions to Written Wills. In witness whereof, I have hereunto set my hand (and seal), this day of , in the year . A. B. [Sea/.] (Add witnesses' attestation here.) In witness whereof, I, the said A. B., have hereunder set my hand, this day of . (Add witnesses' attestation here.) A. B. In witness whereof, I have hereunto subscribed my name (and affixed my seal), the day of . (Add -witnesses' attestation here.) i presence of us, who, !n his presence, and at his request, have hereunto set our names as wit- nesses. W. T., N. S. The said A. B., at , in county, on said day of .signed and sealed this instrument, and published and declared the same as and for his last will and testament; and we, at his re- quest, and in his presence, and in the presence of each other, have hereunto written our names as subscribing witnesses. W. I., T. N., E. S. Signed, sealed, published, and declared by the above-named A. B.,as and for his last will and testament, in the presence of us, who, at his request, and in his presence, have subscribed our names as witnesses thereunto; (if a. duplicate is executed at the same timt, say) as we have likewise done to a duplicate of the above-written will at the same time. W. I.,of- In witness whereof, I have signed (and sealed), and published, and declared this instrument my will, at , in , this day of . A. B. [Sea/.] (Add witnesses' attestation here.) In witness whereof, I, A. B., the testator, have to this, my will, written on one sheet of paper, set my hand, this day of . (Add witnesses' attestation here.) In witness whereof, I, A. B., testator aforesaid, have to this, my will, consisting (or written on) sheets of paper (or-parchment;, set my hand and seal (at the bottom of each sheet), this day of . A. B. [Sea/.] (Add witnesses' attestation here.) In witness whereof, I, the said A. B., have to this, my last will and testament, contained in this and the four preceding sheets, set my hand and seal (to wit): my hand to the bottom of each of said four sheets and my hand and seal to this last sheet, and my seal at the top of said four sheets, where all said sheets are fixed together, this day of . A. B. [Sea/.] (Add -witnesses' attestation here.) In witness whereof, I have, on the day and year hereinbefore mentioned, to this, my last will and testament, contained in sheets of paper, set my hand and seal, in the manner following, to wit : to the first sheets thereof I have set my hand, by subscribing the same with my name ; and to the and last sheet thereof I have signed and subscribed my name, and set my seal. (Add witnesses' attestation here.) A. B. [Sea/.] Attestations of Witnesses to Written Wills. A person must not only be of sound mind at the time of making his will, but also at the attestation of it by the witnesses.* Signed and acknowledged by said testator, in the presence of us, who hereunto subscribe our names, in the presence of said testator, and of each other. W. I., T. N., E. S. Signed, published, and declared by the above- named A. B.,as and for his last will and testa- ment, in the presence of us, who, at his request, have signed as witnesses to the same. W. T.,N. S. Signed, sealed, published, and declared by the aid A. B. as his last will and testament, in the a-Dougl. 24. V. I., of .) [. N.,of .V 1. S., of .J The above instrument, consisting of one sheet (or two sheets), was, at the date thereof, signed, sealed, published, and declared by the said A. B., as and for his last will and testament, in presence of us, who, at his request and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. W. T. , residing at , in county. N. S., residing at , in county. The above instrument, consisting of one sheet, was, at the date thereof, declared to us by A. B., the testator therein mentioned, to be his last will and testament; and he at the same time ac- knowledged to us, and each of us, that he had signed and sealed the same ; and we thereupon, at his request, and in his presence, and in the presence of each other, signed our names thereto as attesting witnesses. W. T. , residing at , in county. N. S., residing at , in county. The above-written instrument was subscribed by the said A. B., in our presence, and acknowl- edged by him to each of us: and he at the same time published and declared the above instru- ment so subscribed to be his last will and testa- ment; and we, at the testator's request, and in his presence, have signed our names as wit- nesses hereto, and written apposite our name* our respective places of residence. W. I., of , in . T. N.,of , in . E. S., of , in . CONCLUSION AND ATTESTATION UNDER THE LAWS OF ENGLAND. In witness whereof, I, the said A. B., have here- under set my hand, this day of , A. D. . [Signature of testator.] Signed and declared by the said A. B., as and for his last will and testament, in the presence of us (both being present at the same time), who, at his request, in his presence and in the presence of each other, have hereunto subscribed our names as witnesses. (Signatures of witnesses.) CONCLUSION AND ATTESTATION UNDER THB LAWS OF MASSACHUSETTS. See CONCLUSIONS, above. Signed, sealed, published, and declared by the above-named A. B.,as and for his last will and testament, in the presence of the three several persons, whose names do hereunder appear to bo by them subscribed as witnesses to the signing, sealing, and publishing the same, which said several persons did so hereunder subscribe their names, in the presence of the testator, and in the presence of each other, two several interline- ations being first made, and several words in two places scored through, in folio 14; and four sev- eral interlineations, being first made, and three words scored through in folio 20. W T E V. I., Of *) . N.,of . ,- . S., of J CONVEYANCES. 385 CONCLUSION AND ATTKSTATION IIN^ER THF LAWS OF NEW YOKK. In witness whereof, I (mime of testator) have to this my last will and testament, consisting of sheets of paper, subscribed my name (and set my seal; this day of , A. D. . [Signature, with or without seal.} Subscribed by the testator in the presence of each of us (or, Acknowledged by the testator to each of us to have been subscribed by him), and at the same time declared by him to us to be his last will and testament, and thereupon we, at the re- quest of the testator, sign our names hereto as witnesses, this day of , A. D. , at . [Signatures and addresses of witnesses.] CONCLUSION AND ATTESTATION UNDER THE LAWS OP PENNSYLVANIA. In witness whereof, I, A. B., the testator, have to this, my will, written on one sheet of paper (or parchment), set my hand and seal, this day Of . A. B. [Seal.] Signed, sealed, published, and declared by the above-named A. B., as and for his last will and testament, in the presence of us, who have here- unto subscribed our names at his request as wit- nesses thereto, in the presence of the said testa- tor, and of each other. W. I. T. N. E. S. WRITTEN WILLS AND TESTAMENTS. Written Will Short Form. The will of A. B. (of , farmer). x. I give, devise and bequeath all my property, both real and personal, to C. D. (revoking all former wills). a. I appoint E. X., executor of this will. Signed and acknowledged this day of . 'l'} Witnesses. A ' B - Written Will Short Form. I, A. B. , of , a , make this, my last will : I give, devise, and bequeath my estate and prop- erty, real and personal, as follows, that is to say: I appoint E. X., of , a : executor (or ex- ecutors^ of this, my will. In witness whereof, I have signed, and sealed, and published, and declared this instrument as my will, at , this day of . A. B. T.S/.] Attest in presence of said testator and of each other. W. T., N. S. Written Will Short Form. In the name of God. Amen. I, A. B., of , mariner, being bound to sea, do make this my last will and testament. First, it is my will that my just debts and all charges be paid out of my estate. Item. I give and devise all the residue of my estate to W., my wife, to be to her and her heirs torever. Item. I appoint and make the said W. execu- trix of this my last will and' testament. Signed and sealed the day of . Signed, sealed, published, etc. A. B. [Seal.] Written Will Short Form. This is the last will and testament of me, John Stiles, of Cheapside, in the city of London, linen- draper. I give, devise, and bequeath all my real estate and personal estate whatsoever and whereso- ever, unto my wife, Mary Stiles, her heirs, exec- utors, administrators, and assigns, for her and their own use and benefit forever. And I appoint my said wife sole executrix of this, my will ; hereby revoking all other wills made by me at any time heretofore. In witness whereof, I, the said John Stiles, have hereunto set my hand, this day of , in the year of our Lord one thousand eight hundred and fifty . JOHN STILES. [Seal.] (Attestation clause here.) Written Will General Form. Devising Real Estate Bequeathing Personal Prop- erty and Appointing a Residuary Legatee. I, A. B., of , in the county of , and State of , declare this to be my last will and testa- ment. 1. I give and bequeath to my wife, C. B., all the fixtures, prints, books, paintings, linen, china, household goods, furniture, chattels, and effects (utlvjr than money or securities for money), which shall, at my death, be in or about my dwelling- house at . 2. I give and devise to my said wife, her heirs and assigns, all, etc. (describing the estate deirisrd), together with all the appurtenances thereunto belonging ; to have and to hold the same unto the said C. B., her heirs and assigns, forever. 3. I give and bequeath to my said wife the sum of dollars, to be paid to her within one month after my death, without interest. 4. I also give and bequeath to my said wife the sum of dollars. 5. I give and devise to my son, D. B., his heirs and assigns, all, etc. (describing the estate devised} , together with all the hereditaments and appurte- nances thereunto belonging, or in anywise apper- taining ; to have and to hold the premises above described to the said D. B., his heirs and assigns, forever. 6. I give and bequeath to my said son, D. B., the sum of dollars. 7. I also bequeath the following legacies to the several persons hereafter named : To my nephew, A. S.,the sum of dollars: to my cousin, T. S., the sum of dollars: to my friend, N. S., the sum of dollars. 8. I also bequeath to the following of my do- mestic servants who shall be living with me at the time of my death, as (etc.. describing their ca- pacity and the legacies to be given). 9. All the rest, residue and remainder of my real and personal estate I give, devise and be- queath to R. S., his heirs and assigns, forever. 10. I appoint E. X. and T. R. executors of this my will. In witness whereof, I, A. B., have hereunto subscribed my name this day of . A, B. Subscribed by the testator in the presence of each of us (or acknowledged by the testator to each of us to have been subscribed by him) and at the same time declared by him to us to be his last will and testament. 'Witness our hands this day of , A. D. . W. I. T. N. E. S. Written Will General Form. Wilh Various Bequests and Devises. I, A. B., of the township of , in the county of , and State of , do make and publish this my last will and testament, in manner and form following, that is to say : 1. It is my will that my funeral shall be con- ducted without pomp, unnecessary parade or ostentation, and that the expenses thereof, to- gether with all my just debts, be fully paid. 2. I give, devise and bequeath to my beloved wife, W. B., in lieu of her dower, if she should so elect, the plantation on which we now reside, situated in the township aforesaid, and contain- ing two hundred and ten acres, or thereabouts, during her natural life : And all the live-stock, horses, cattle, sheep, swine, etc., by me now owned and kept thereon: Also, all the household furniture and other items, not particularly named and otherwise disposed of, in this my will, during her said life ; she, however, first disposing of a sufficiency thereof to pay my just debts, as afore- said. And, that at the death of my said wife, all the property hereby devised or bequeathed to her, as aforesaid, or so much thereof as may then re- main unexpended, I give unto my three sons, S., O., and N., and to their heirs and assigns, for- ever. 3. I give and devise to my eldest son, S., the farm on which he now reside-s, situated, etc., and containing one hundred and fifty acres, or there- abouts, and to his heirs and assigns, forever. 4. I give and devise to my second son, O., the farm now in the occupancy of G. H., situated, etc., and containing one hundred and ten acres, 386 CONVEYANCES. to him, the said O., his heirs and assigns, in fee simple. 5. I give and devise to my third son, N., the house and lot, in the of , in the county and State aforesaid, now in the occupancy of I. K., known and designated in the plan of said by No. 47, to him, the said N., his heirs and assigns forever. And, last: I hereby constitute and appoint my said wife, W., and my said son, S., to be the exec- utrix and executor of this, my last will and testa- ment, revoking and annulling all former wills by me made, and ratifying and confirming this, and BO other, to be my last will and testament. A. B. Signed, published, and declared by the above- named A. B., as and for his last will and testa- ment, in presence of us, who, at his request, have signed as witnesses to the same. W. T. N. S. Written Will General Form. With Various Bequests and Devises. I, A. B., of, etc., do make and publish this, my first as well as last will and testament : I direct, that my body be decently interred in the burial ground of church, in , accord- ing to the rites and ceremonies of said church, ami that my funeral be conducted in a manner corresponding with my estate and situation in life. And, as to such worldly estate as it hath pleased God to intrust me with, I dispose of the same as follows : First: I direct that all my debts and funeral ex- penses be paid as soon after my decease as possi- ble, out of the first moneys that shall come into the hands of my executors, from any portion ot my estate, real or personal. Also : I direct that a fair valuation or appraise- ment be made, according to law, of all my estate, by three competent and impartial neighbors. Also : I direct that all my stock in trade be sold at public vendue, or outcry, for good current money, but not upon credit ; and that all the real estate of which I shall die seized, or possessed, shall be sold by my executors, tor its reasonable value, for like current money, or on such credit, and the amount thereof be secured, in such a manner as is usual in like cases, to insure the full and punctual payment thereof: And to effect this, my intention, I do hereby vest in my execu- tors full power and authority to dispose of my real estate, in fee simple, or for a term of years, or otherwise, in as full and large a manner, in every respect, as I could myself do, if living. Also : I direct that the whole of my household furniture shall be and remain the absolute prop- erty of my beloved wife, if she shall be living at the time of my decease ; but, if she shall not survive me, then that the same shall be given, absolutely, to my daughters then unmarried, as shall be liv- ing, share and share alike, and to be apportioned by three impartial neighbors, mutually chosen by my said daughters for that purpose. Also: I do direct that the net proceeds of my personal estate, heretofore ordered by me to be disposed of, be divided equally as soon as it can be done, share and share alike, amongst my said wife and my several children who shall survive me; and that the proceeds of my real estate, if sold on credit, shairbe divided in like manner, as soon as they shall come into the hands of my ex- ecutors. The heirs or representatives of any of my chil- dren, who shall have died between the time of my decease and the time of such division or dis- tribution, to be entitled to such share or shares as their respective ancestors would have been entitled to receive if they were living. And, the share of my real and personal estate, herein bequeathed to my wife, to be in lieu of her dower, at common law, if she shall so elect. And, I do hereby appoint and nominate my es- teemed neighbors, C. D. and E. F., executors of this, my last will and testament, reposing full confidence in their integrity to perform the trust thus committed to them. In witneM whereof, I, A. B., the testator, have to this, my will, written on one sheet of papei, set my hand, this day of , in the year . A. B. Signed and delivered in the presence of us, who have subscribed in the presence of each other. W. T. N. S. Written Will General Form. Wit li Various Bequests and Devises. In the name of God. Amen. I, A. B., of the county of , in the State of , farmer, being weak in body (or in perfect health of body, as the case may be), and of sound mind, memory, and understanding; but, consid- ering the uncertainty of this transitory life, do make and publish this, my last will and testa- ment, in manner and form following, to wit: First : It is my will, and I do order, that all my just debts and funeral expenses be duly paid and satisfied, as soon as conveniently can be, after my decease. Item : I give and bequeath unto my dear wife, W.,one bed, one cow, etc., etc., together with such of my household furniture and kitchen uten- sils as she may choose to keep for her own use. Item : I give and bequeath unto my said wife, the use and occupation ot my plantation, etc., until my son, S., shall attain the age of twenty- one years (she maintaining and educating my minor children thereout;, and from and after his arrival at such age, then I give and devise the said planta- tion, etc., unto my son, S., his heirs and assigns, forever; he or they paying thereout, unto my other children hereinafter named, the several sums of money to them respectively bequeathed ; and also paying unto my said wife the sum of one hundred and fifty dollars (which sum I hereby be- queath to her) yearly, and every year, during her natural life, for her maintenance and support ; til which legacies to my said wife I do hereby declare to be in lieu and stead of her dower, at common law. And, in case of the death of my said son, S., before his arrival to the age afore- said, then I do order and direct that my execu- tors, hereinafter named, or the survivor of them, shall, as soon as conveniently may be, after his decease, sell and dispose of my said plantation, etc., to such person or persons, and for such price or prices, as may be reasonably gotten for the same ; and for that purpose I do hereby authorize and empower my said executors, or the survivor of them, to sign, seal, execute, and acknowledge all such deed or deeds of conveyance as may be requisite and necessary for the granting and as- suring the same to the purchaser or purchasers thereof, in fee simple: And the moneys arising from such sale, to put and place out to interest, on good security, for the payment of the said an- nuity, hersby bequeathed to my said wife; the residue of the interest to be applied to the main- tenance and education of such child, or children, as shall then be under age. Item : I give and bequeath unto my son, O., the sum of one hundred dollars, to be paid to him six months after my decease. Item : I give and bequeath unto my daughter, D. , the sum of one hundred dollars, to be paid to her on her arrival at the age of twenty-one years, or the day of her marriage, whichever shall first happen. And, as touching all the rest, residue, and re- mainder of my estate, real and personal, of what kind or nature whatsoever the same may be, in the county of aforesaid, or elsewhere, I give and devise the same unto my said wife, W., dur- ing her natural life, and from, and immediately after her decease, I give and devise the same unto my three children, S.,O., and D., and to their heirs and assigns forever, to be equally divided among them. And, lastly, I nominate, constitute, and appoint my said wife and my son S. to be the executors of this, my will, hereby revoking all other wills, legacies, and bequests by me heretofore made, and declaring this, and no other, to be my last will and testament. I n witness whereof, I have hereunto set my hand nd seal, the day of , in the vear . (Add attestation of witnesses kert.) A. B. [Stal.\ CONVEYANCES. 3*7 Written Will General Form. Appointing Residuary Legatees, Executors Disposing of Stock in Trade Granting Annuities, Bequests, Devises Power to Employ Attorneys, Prosecute Suits Abroad, etc., etc. I, A. B.,of , in the county of , esq., being in a very infirm state of health, and sensible of my liability to sudden death, at the same time being in my own apprehension of sound mind, do judge it best to make, and accordingly do hereby make this my last will and testament. It is my will that all my just debts and the charges of my funeral be paid and discharged by my executors hereinafter named and appointed, out of my estate, as soon as conveniently may be after my decease, and I leave the charges of my funeral to the direction of my said executors. I give, devise, and dispose of all my estate, real and personal (save what shall be necessary fur the payment of my just debts and funeral charges;, in the following manner : I give to my daughter, D. R., and to her heirs and assigns, seven thousand five hundred dollars lawful money, which with what I heretofore ad- vanced to and for her, viz., before her intermar- riage with H. R., I judge to make at least ten thousand dollars. And I discharge her and the heirs of her late husband, L. H. R., and all con- cerned, and that may be concerned with and for her and them, of what I charged him with in my books. I give to *iy daughter, D. U., and to her heirs and- assigns, ten thousand dollars lawful money. I give to my daughter, D. T., and to her heirs and assigns, ten thousand dollars lawful money, to be paid to her when she shall arrive at the age of twenty-one years, if she shall live so long ; if otherwise, and she shall leave lawful issue, then I give the same sum to such issue, to be paid to such issue, in equal shares, when and as each of them shall arrive at twenty-one years of age, or at the time of his or her marriage, whichever shall first happen. And in the mean time, it is my will that the same sum be put and kept at interest for the benefit of the said D. T., and such issue, and I empower my executors, or whoever shall have the care of the same, ten thousand dollars, to apply as much of the interest and income of the same sum, as they shall judge best for and towards her and their support and education. I give to my beloved wife, W. B., sixteen hun- dred and seventy-five dollars lawful money, also the value of five hundred dollars, like money, more, in such of my household goods as she shall choose ; also the household goods and other things which belonged to her, and which she brought to me at our marriage, and all the Cersontl estate since left to her by Madam M. M. y her will. I also give to my said wife, W. B., and to her heirs, my negro boy, named Titus, as a servant for life, with the apparel he shall have at the time of my decease. I also give to her my two-wheeled chaise, and what belongs to it of tackling, etc., and one of my carriage horses, namely, that which she shall choose of them. I also give to my said wife, W. B., during her residence at , the right of sitting in my pew below, where she and my children usually sit, in the meeting-house in said, etc., wherein the Rev. Mr. P. R. usually officiates as pastor, and in such part of the same pew as she shall think proper, she paying one sixth part of the taxes which shall be charged or laid on and for said pew during the same time. I also give and grant to my said wife, W. B. , during her life, the annuity and sum yearly of eight hundred dollars lawful money, which, with what I have hereinbefore given to her, I mean to be, and that she accept the same in full of her right of dower in my estate, and I give to her as above, upon condition, that she, my said wife, shall give to my executors, when -Where a testator in his will, directed his executor to support a person, it was held that such direction , MI mimed to a legacy, and if the executor (or in case demanded, a release of all demands and claim* of dower and otherwise, of and against my es- tate, save what I have herein given to her. As my body servant, named B. S., has gener- ally served me with great diligence and integrity I give to the same B. S. dollars lawful money, together with his apparel, agreeably to a writing I have heretofore executed for that purpose ; and if hereafter he be unable to support himself, that he be 'supported by my sons, S. and O., in equal shares, and so by their respective heirs, and so as to free the town of from any charge for the support and maintenance of the said B. S.; and I charge what I hereby give to my sons, as well as themselves, with the performance hereof. I give and grant to my honored mother, M. B., during her life, the annuity and sum yearly of five hundred dollars lawful money, on condition that it be received by her in discharge of my part of the yearly payment, to be made to her by myself and others, by force of the last will of my grandfather, Capt. G. R., deceased : yet I mean that this pay- ment or annuity shall not be so made or under- stood, as to bar my said mother from her claim which she has and may have against others, by force of my said grandfather's will. I give to Mr. M. P., on the day and at the time of my decease, dollars lawful money, pro- vided and on condition he shall then be employed or engaged in my business in like manner as he now is. This gift I so make him in testimony of the great regard I have for him, and the sense I have of his great faithfulness in my service. I give to the Rev. Mr. P. R. dollars lawful money. And to the end that the payment of the annui- ties and yearly payments aforesaid, may be effec- tually secured, and the same duly paid, it is my will that thousand and hundred dollars lawful money of my personal estate shall not be received by or for my children, or any of them, until the said annuities and yearly payments be completed and cease to become due; but that the same sum of my personal estate shall, until the same annuities cease to become due as afore- said, rest in the hands, and be under the manage- ment and improvement of my executors herein- after named and appointed, to be placed and kept at interest on what they shall judge to be good security, and that such interest shall be ap- plied and used as by this my will is directed. Except, and it is my will, that if there be any overplus arising from the interest of the said thousand and hundred dollars, in any year, after the several annuities, in this my will ordered, are fully paid for the same year, in such case, the same overplus, as it shall be received, as soon as conveniently may be done, shall be placed and kept at interest for the uses, ends, and purposes in this my will mentioned. But in case of the death of my executors before the said an- nuities, and each of them shall cease to become due, or their refusing or neglecting to take the care of the said thousand and hundred dollars and the income thereof, and the applica- tion and payment of the same, then it is my will that the said thousand and hundred dollars of my estate, and what may have arisen by the income thereof, if any be, shall be deliv- ered over and put into the hands of any two gentlemen (not oeing children), the judge of the probate of wills for said county for the time being, shall judge fit to nominate and appoint as agents or trustees (which I empower and request him to do) to receive the same, to be by them managed, let, and placed at interest as aforesaid, for the purposes aforesaid, and the interest there- of annually by them applied in payment of the said annuities and agreeably to my other direc- tions about the same. And in case the said judge shall refuse or neglect, in the opinion of my said wife, seasonably to nominate, appoint, and en- gage such agents or trustees, then it is my will, that the same thousand and hundred dollars, and the interest thereof unapplied, if he refused the trust, the administrator cum testament annexe}, neglected it, an action would well lie, where there were sufficient assets, 4 Mass, R. 634. CONVEYANCES. ny be, shall be delivered over and paid or put into the hands of any two gentlemen my said wife, W. B., shall please to nominate and ap- point to receive the same, and these persons shall and may receive the same, in like manner, and for the uses, intents, and purposes aforesaid. But it is to be understood, that into whose hands oever the said thousand and hundred dollars and the interest thereof, shall be delivered as aforesaid, being nominated and appointed by the said judge of probate, or by my said wife, W. B., as aforesaid, the same shall be so received as that such receivers shall, at the time of the re- ceipt of the same, make themselves accountable for the said thousand and hundred dollars and the interest thereof, according to the intent of this, my will, relative thereto, and that the gentlemen into whose hands the said dol- lars and any interest or income thereof shall be put and placed as aforesaid, shall, on receipt thereof, give bond to the said judge of probate to account for the same sum and the interest thereof, according to the tenor and intent of this, my will, and apply the interest thereof as hereinbefore directed. And it is my will, that when the annuities aforesaid, and each of them, shall cease to be- come due, the said dollars, with the overplus interest thereof, if any there be, shall be divided to and among my children hereinafter named, to whom I give the same accordingly, as followeth, videlicit: To my daughter, D. R.,and to her heirs, hundred and dollars thereof. To my daughter, D. T., and to her heirs, other hundred and dollars thereof. To my daugh- ter, D. U., and to her heirs, other hundred and dollars thereof. And the residue and remainder thereof to my three sons, E., D., and O., in equal shares, and so to their respective heirs. The residue and remainder of all my estate, both real and personal, not herein otherwise dis- posed of, I give and grant to my sons, E., D.,and O., in equal shares and proportions, and so to their respective heirs forever. The share of my son, O., of the same residue and remainder of my es- tate, to be paid to him when he shall come to the age of twenty-one years, but until then the same share to remain and be in the hands of my said executors, the personal estate to be let and placed at interest, and the real estate improved or let to the best advantage, for the use of the said O., and so in like manner his share of all surplusage of interest and income, which I would have added to the capital stock, and let at interest for his benefit, saving, nevertheless, that the same interest and income may be used, paid, and ap- plied, as I do by this will grant, allow, order, and provide. If my estate at , or any part thereof, should at my decease remain by me unsold, and my ex- ecutors shall think it best, that the same, or any part thereof, should be sold before my son, O, shall arrive at twenty-one years of age, in such case, I give and grant to my executors full power to grant and sell the share or part I give to the said . therein, for such consideration as to my exec- utors shall seem reasonable, and to make and duly execute any deed or instrument they shall judge proper for the purpose, and the money arising from the same sale to remain and be in the hands of the said executors during said O.'s minority, and by them be let at interest for the use of the said O. Provided, nevertheless, that my sons, E. and D., shall at the same time sell their respective shares in the same estate. And it is my will that if my son, O., shall die before he shall arrive at the age of twenty-one years, then what shall remain of his share in the whole of my estate, according to this, my will, hall go, and I in this case give the same to his surviving brethren aforenamed, in equal shares, and so to their respective heirs. But if either of these brethren shall happen to die without legal issue living, and this while the said O. shall be Hving, then I, in the case aforesaid, give the same to the survivor of said brethren (namely, E. and P.), and the heir* of such survivor, And in case my daughter, D. T., shall die before she shall arrive at the ago of twenty-one years, leaving no lawful issue living, then what shall re- main of the share of the said D. T. of my estate and the interest thereof, unapplied, shall go, and I give the same in such case as follows, viz. : one-half part thereof to my daughter, D. R., and to her heirs, and the other half part thereof to my daughter, D. U., and to her heirs. But if either the said D. R. or D. U. shall die without issue and before the said D. T. shall arrive at twenty- one years of age, and the said D. T. dying as aforesaid, then I give the whole of the same to the survivor of the said D. R. and D. U., and to the heirs of such survivor. In case my executors shall judge it best not to sell my stock in trade, or any part thereof, imme- diately after my decease, but to continue the same, or any part thereof, in trade, for the bene- fit, but at the risk of such of my children as shall be concerned therein, then I empower my execu- tors, for any term not exceeding twelve months next after my decease, to employ and improve my trading stock, or any part thereof, in the com- mon course of trade as they shall think best for *he benefit, and so at the risk of, those, to whom, according to this will, this part of my estate shall belong ; yet I mean so to limit the time of such improvement, that if any of this interest shall be at sea at the expiration of said twelve months, a further reasonable time shall be allowed to com- plete the voyage and voyages, the same interest may then be abroad upon. And it is my will, that my executors may pay the sums first mentioned to be given to my said daughters respectively, in good bonds, payable to me at the time of my death, or thereabout, ac- counting such bonds at the value of them on the day of my death. And I desire my executors, if need be, to lend their names in said capacity to my daughters respectively, when desired, for the recovery and receipts of what shall be due on such bonds, and give proper power therefor. But if my executors shall not think fit so to do, when requested, then my will is that my daugh- ters be paid in money equivalent. And as my executors must necessarily have much trouble, and employ a great deal of time in executing this, my will, I desire and empower them to employ Mr. A. A., or any other person they shall think fit, in assisting them in the set- tlement of my accounts and affairs, and in the improvement of my trading stock, and that they agree to give and pay to him and them such sunns of money out of my estate therefor, as they, my said executors, shall judge reasonable. Although it is my will, and I choose that the estates I have given to my son, O., and to my daughter, D. T., respectively, shall remain in the hands of my executors as aforesaid ; yet, if my ex- ecutors shall choose it, I consent that guardians be legally appointed for the said O. and D. T., re- spectively, and that their respective shares of my estate be paid to their respective guardians for the uses and intents in this, my will, limited, directed, and expressed. And as it is my will, that so much of the income of what I have given to my daughter, D. T., as may be needful, may be applied for her support and education, so I will that the income of the estate I have given to my son, O., may be applied and expended for his support and education, until he shall arrive at twenty-one years of age, so far as shall be thought reasonable and best by such person or persons, as, during his minority, shall have the care of his share of my estate. And it is my will, that my executors or either of them, join with Messrs. A. A. and A. Y. in prosecuting the cause now or late depending in England for the recovery of the schooner J. and cargo, and that he or they do everything which I might or could do for that end, so far as he or they shall think fit and judge best. And I hereby nominate, constitute, and appoint my brother, B. B., and my friend, Mr. E. F., jointly and severally, to be executors of this my last will and testament, and so as that in casa of th* death of one of them, the survivor of CONVEYANCES. 3*9 them shall then be sole executor of this my said will. And I give such survivor all the power and di- rection I have given my said executors. I also give to each of them all the power, and repose in each of them all and every trust I have given to them jointly, provided, and so far as he who shall act have the consent of the other ex- ecutor, and it is my will that neither of my exec- utors shall be answerable for any of my estate received or to be received by the other executor. In witness whereof, I hereto put my hand and seal, and publish and declare this to be my last will and testament, etc. (Add attestation or witness clause.) Written 'Will Married Woman. Made in Virtue of a Power of Appointment Made at or Before Marriage. I, W. B., wife of A. B., of , do by this my writing, purporting to be my last will and testa- ment, dispose of my estate, both real and per- sonal, pursuant and according to the authority to me given and reserved in and by a deed of settle- ment (or otherwise, as the case may be), made and executed on my marriage (or, in contemplation of my marriage) with my husband, the said A. B., and bearing date the day of , A. D. , by and between the said A. B., and E. F., and G. H., trustees, etc. (here set forth the date and parties to the settlement). And by virtue of the said deed, and of all other powers and authorities whatsoever, to me given and reserved, in manner as follows, viz.: i. I devise to my son, S. B.,all that tract of land, called , being, etc. (here describe it), and to his heirs forever. a. I give, bequeath, and devise to my daughter, Mary B. , one hundred shares of stock in the Bank of , now standing on the books of said bank in the name of , to my use and benefit ; to- gether with all dividends which may be due and in arrear thereon at the time of my death. Also to my said daughter the house and lot in which I now reside in the city of , situated, etc. (here describe it). 3. I give and bequeath to my said husband, A. B. , a gold ring and a breastpin, to be made in such manner as he may direct, in testimony of my respect and affection for him. In witness whereof, etc. Written Will Of Real and Personal Property. See VARIOUS FORMS, above. Know all men by these presents : That I, A. B., of , in the county of , and State of , counsellor at law, being in good health (<>rH\ health, as the case may be), and of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all former wills by me at anytime here- tofore made. And as to my worldly estate, and all the prop- erty, real, personal, or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, be- queath, and dispose thereof in the manner fol- lowing, to wit: I. My will is, that all my just debts and funeral expenses shall, by my executors hereinafter named, be paid out of my estate, as soon after y dec-ase as shall by them be found convenient. Item. I give, devise, and bequeath to my be- loved wife, W. B. , all my household furniture, my library in my mansion or dwelling-house, my span of horses, coach and chaise, and my two horse carriage harness ; and also twenty thou- sand dollars in money, to be paid to her by my executors, hereinafter named, within six months after my decease; to have and to hold the same to her and her executors, administrators, and as- signs, forever. I also give to her the use, improvement, and in- come of my dwelling-house, land, and its appur- tenances, situated in, etc. (here describe it); and my land, wharf, and flats, situated in, etc. (here describe s'i),and its appurtenances; to have and to bold the same to her for and during her natural life. I give and bequeath to my honored mother, M. B., five thousand dollars in money, to be paid to her by my executors hereinafter mentioned, within six months after my decease ; to be for the sole use of herself, her heirs, executors, ad- ministrators, and assigns. I give and bequeath to my daughter, D. B., my fifty shares of the stock of the President, Di rectors, and Company of the Bank, which are of the par value of five thousand dollars ; and my ten shares of the stock of the Manu- facturing Company, which are of the par value of ten thousand dollars ; to have and to hold the same, together with all the profit and income thereof to her, the said D. B. , her heirs, executors, administrators, and assigns, to her and their use and benefit forever. I give, devise, and bequeath to my son, S. B., the reversion or remainder of my dwelling or mansion house, land, and its appurtenances, situated in, etc. (describe it), and all profit, income, and advantage that may result therefrom, from and after the decease of my beloved wife, W. B. ; to have and to hold the same to him, the said S. B., his heirs and assigns, from and after the de- cease of my said wife, to his and their use and behoof forever. I give, devise, and bequeath to my son, O. B., the reversion or remainder of my land, wharf, flats, situated in (describe it), and its appurte- nances, and all the profit, income, and advantage that may result therefrom, from and after the decease of my beloved wife, W. B., to have and to hold the same to the said O. B., his heirs and assigns, from and after the decease of my said wife, to his and their use and behoof forever. All the rest and residue of my estate, real, per- sonal, and mixed, of which I shall die seized and possessed, or to which I shall be entitled at my decease, I give, devise, and bequeath to be equally divided to and among my said sons, S. , O., andN. And lastly, I do nominate and appoint my said sons, S. B., O. B., and N. B., to be the executors of this, my last will and testament. In testimony whereof, I, the said A. B., have to this, my last will and testament, contained on two sheets of paper (or otherwise, as the case may te), and to every sheet thereof, subscribed my name, and to this, the last sheet thereof, I have subscribed my name and affixed my seal, this day of , A. D. . A. B. [Seat.] Signed, sealed, published, and declared by the said A. B., as and for his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. W.I. T. N. E. S. Written Will Of Real and Personal Property, in Trust. Be it remembered, that I, A. B., of , in the State of , merchant, being of sound, dispos- ing mind and memory, do make and ordain my last will and testament, in manner following, viz. : Imprimis. I direct all my just debts and fune- ral expenses to be fully paid and satisfied by my executors, hereinafter named, as soon as conven- iently may be after my decease. Item. All the rest, residue, and remainder *f my estate, real, personal, and mixed, whatsoever and wheresoever, I order and direct to be con- verted into money as soon as the same can con- veniently be done after my decease ; and for that purpose, I do hereby authorize and empower my said executors, hereinafter named, and the sur- vivor of them, to sell and dispose of all my said real estate, either by public or private sale or sales, for the best price or prices that can be got- ten for the same, and by proper deed or deeds, conveyances, or assurances in the law, to be duly executed, acknowledged, and perfected, to grant, convey, and assure the same to the purchaser or purchasers thereof, in fee simple. And, when the whole of my said residuary es- 39< CONVEY ANTES. tate shall be converted into money as aforesaid, then I will and direct that the same shall be divi- ded into four equal parts or shares, and disposed of as follows, to wit : One full, equal fourth part or share thereof I pive, devise, and bequeath unto my said execu- tors, hereinafter named, and the survivor of them, in trust, that they or he do and shall put and place the same out at interest on good, real se- curity, or in the funded debts of the United States, the State of , or the city of , and pay over the interest or dividends thereof from time to .me, when and as the same shall be got in and (i ceived, unto my beloved wife, W. B. , during all it.ie term of her natural life ; which is to be in lieu .pi' the dower to which she is entitled by law. And from and immediately after the death of my said wife, W. B., I give, devise, and bequeath the principal of the said one-fourth part or share of my said residuary estate to be equally divided, share and share alike, between my daughters, D. B. and R. B., and my son, S. B, , and any other child or children which I may have born by my present marriage ; the part or share in this be- quest of my said two daughters, D. B. and R. B., to be held, however, by my said executors, in trust, in the same manner and for the same uses as are hereinafter set forth and declared of and concerning the parts or shares of my said resid- uary estate bequeathed to them for the use of my said two daughters, D. B. and R. B. One other of the said full, equal fourth parts or shares of the proceeds of my said residuary es- tate, I give, devise, and bequeath unto my said executors, hereinafter named, and the survivor of them, in trust, that they or he shall and do put and place the same out at interest in manner afore- said, and pay over the interests and dividends aforesaid, from time to time, when and as the same shall be got in and received, unto my said daughter, D. B., for and during all the term of her natural life ; so, nevertheless, that the same shall be for her sole and separate use, notwithstanding any coverture, and not to be in any way or manner whatever liable to the contracts, debts, or engage- ments of any husband which she may hereafter have or take, and not to be in any way or manner whatever subject to the control or interference of such husband. And from and immediately after the decease of her, my said daughter, D. B., then, as to the said principal, in trust to and for the only proper use and benefit of all and every the child and children which she, my said daughter, D., may leave, and the lawful issue of any of them who may then be deceased, having left such issue, to be equally divided between them, share and share alike, such issue of any deceased child or children of my said daughter, D., taking, how- ever, only such part or share thereof as his, her, or their deceased parent or parents would have had and taken, had he, she, or they been living. One other of the said full equal fourth parts, etc. (as in preceding clause, only substituting R. B.for D.B.) And the remaining one full equal fourth part or share of the proceeds of my said residuary estate, I give, devise, and bequeath unto my said executors, hereinafter named, and the sur- vivor of them, in trust, that they or he do and shall put and place the same out at interest in manner aforesaid, and pay and apply such inter- est, or so much thereof as shall be requisite, to- ward the education and maintenance of my said som, S. B., until he attains the lawful age of twenty-one years ; and when and as soon as he, my said son, arrives at the age aforesaid, then in trust to pay over the principal thereof, together with any accumulation of interest thereon which may be in their hands uninvested, unto him, my said son, S. B. Item. In case of the decease of my said daugh- ters, D. B. and R. B., or either of them, without leaving lawful issue, or of the decease of my said on, S. B., under age, and without leaving law- ful issue, then, in such case, I give, devise, and bequeath the said part or share, hereinbefore 5iven, devised, and bequeathed to such child so ying, unto my said executors, hereinafter named, and the survivor of them, in trust, to hold the same for my surviving child or children, in equal shares and proportions, in the same manner, for the same uses, intents, and purposes, and under the trusts and limitations as are hereinbefore set forth and declared of and concerning the parts or shares of my said residuary estate hereinbefore given, devised, and bequeathed for the use, bene- fit, and behoof of my said children, respectively. Item. I nominate, constitute, and appoint my friends, E. X. and T. R., of the said , mer- chants, executors of this my last will and testa- ment, hereby revoking all former wills and testa- ments by me at any time heretofore made : and do declare these presents only to be and contain my last will and testament. In witness, etc. Written Will-In Trust for Certain I*nrpos4s. The last will of me, A. B., of the town of , in the county (or district, or parish) of , and State of , being of sound mind at the time of making and publishing this my last will and testament. I give and devise all my estate, real and per- sonal, whereof I may die seized or possessed, to T. T., of the said town of , and E. X., of the same place : to have and to hold the same to themselves, their heirs and assigns forever, upon the uses and trusts following, namely : In trust first to pay all my debts and funerav expenses: Second, to pay to my wife, W., upon her sole and separate receipts, the interest, income, and revenue, of all my said estate, during the term of her natural life : And third, upon the decease of my said wife, to convert all my said estate into money, if such a course shall be thought best by my said trustees, and pay to my daughter, D., the one third part thereof, it seeming to me best to give her so large a share on account of her bodily infirmities and inability to provide for herself, and the remaining two-thirds equally to divide between my four sons, P., S., O., and N. If either of my children shall, before such division, have died, leaving lawful issue, such issue to receive the parent's share; but if there be no issue, then such share to fall into the gen- eral fund, to be divided among the survivors in the manner before directed. And I hereby give to my said trustees full power and authority to sell any or all of my real estate at private or public sale, and invest the proceeds, or to lease the same as they may deem best for the interest of my family. And if my said daughter, D., shall not have attained the age of twenty-one upon the decease of her mother, I hereby nominate, constitute, and appoint my said trustees guardians of the person and estate of my said daughter, D., during the remainder of her minority, commending her to their fatherly care and protection. And I hereby nominate, constitute, and appoint my said trustees, T. T. and E. X., executors o 4 " this my last will arid testament. In witness whereof, etc. Written Will Of Widow, Containing: Trusts. Be it remembered, That I, W. W., of the city of , widow, being of sound mind and mem- ory, have thought proper to make, and hereby do make my last will and testament in manner following, that is to say: i. I direct all my just debts and funeral ex- penses to be fully paid and satisfied as soon as conveniently may be after my decease. Item. I give and bequeath to my niece, N. C. E., all my household goods, kitchen furniture, silver plate, and wearing apparel. Item. I give and devise my messuage or tene- ment. No. , on street, in the city of , and the lot of ground and appurtenances there- unto belonging, unto my neohew, N. H. W., his heirs and assigns forever, in- trust nevertheless to pay the net rents and income thereof unto my said niece, N. C. E.,for her sole and separate u$v CONVEYANCES. 39* during the term of her natural life, without being subject or liable to or for the debts, contracts, or engagements of any husband she may have or take, and from and after her decease then in trust with respect to one moiety or half part thereof, for such person or persons, and such uses and purposes as my said niece, by any instrument of writing in the nature of a last will and testament, may direct, limit, and appoint. And for want of such direction, limitation, or appointment, then in trust to grant and convey tr.e said moiety to such person or persons as would have been entitled to the same in case the aid N. C. E. had departed this life intestate .seized of said moiety in fee and for such estate and es- tates, and in such parts, shares, and proportions "as such person or persons would in such case be entitled to by the intestate laws of . And from and immediately after the decease of my said niece, then with respect to one equal half part of the remaining moiety of the said premises, to hold the same in trust, to pay the net rents and income thereof, to my nephew, N. E. P., during his natural life, free from his debts, contracts, and engagements, and from and after his decease, then in trust to hold the said half part of said remaining moiety for such person or persons, and for such uses and purposes as my said nephew, N. E. P., by any instrument of writ- ing in the nature of a last wiU and testament, may direct, limit, and appoint. And for want of such direction, limitation, or appointment, then in trust to grant and convey the same to such person or persons as would have been entitled to the same had the said N. E. P. de- parted this life intestate, seized of said half part of said moiety in fee, and in such parts, shares, and proportions as such person or persons would in such case be entitled to by the intestate laws of . And from and immediately after the de- cease of my said niece, I give and devise the re- maining full equal half part of the said remaining moiety of said premises unto my said nephew, N. H. W., his heirs and assigns, forever. Provided, however, and I do hereby direct the said trustee, at any time during the lifetime of my said niece, N. C. E., to sell and dispose, at public or private sale, of the whole of the said premises to such person or persons, for such price and upon such terms and conditions as she, my said niece, may in writing direct, limit, and appoint, if my said niece shall think proper to direct a sale of said premises, which without such direction shall not be made, and to grant and convey the same to the purchaser or purchasers thereof, his, her, or their heirs and assigns, forever, free and dis- charged from all trusts whatsoever, and all lia- bility to see to the application, or for the non- application of the purchase-money. And the moneys arising from such sale to be invested in some safe securities at interest, and to be held in trust for the same uses and purposes above set forth with respect to the said premises. Item. I direct all the rest, residue, reversion, and remainder of my estate, real, personal, and mixed, whatsoever and wheresoever, to be con- verted into cash as soon as conveniently may be after my decease, and for that purpose I hereby authorize and empower my executors, hereinafter named, and the survivor of them, to sell and dis- pose of all or any part of the residue of my real estate, at public or private sale or sales, for such price or prices, and upon such terms and condi- tions as to them may seem best, or to the survi- vor of them , and to grant and convey the same to the purchaser or purchasers thereof, his, her, or their heirs and assigns, free from all liability for or on account of the application of the pur- chase-money. One full equal third part of the net proceeds of the said rest and residue of my estate I give and bequeath to my said nephew, N. H. W., his ex- ecutors, administrators, and assigns, in trust, to invest the same in safe securities at interest, and hold the same in trust for mysaid niece, N. C. E., as above set forth and directed with respect to the said premises on street devised in trust for her. Qne other full equal third part I give and bequeath to mysaid nephew, N. H. W.,his ex- ecutors, administrators, and assigns, in trust, to j invest the same in safe securities at interest, and I hold the same in trust for my said nephew, N. E. P., as above set forth and directed with respect to the part and share of said premises on street, devised in trust for him after the decease of my said niece. And the remaining full equal third part thereof I give and bequeath to mysaid nephew, N. H. W., absolutely. Item. I nominate and appoint my said nephew, N. H. W., executor of this, my last will and tes- tament. Lastly, I revoke all former wills by me made, and declare this only to be and contain my last will and testament. In witness whereof, I have hereunto set my hand and seal, the day of , in the year . W. W. [Seat.) Signed, sealed, published, and declared by W. W., the testatrix above named, as and for her last will and testament, in the presence of us, who, in her presence, at her request, and in the presence of each other, have hereunto set our names as witnesses. W. I. T. N. E. S. BeqnetttM and Legacies of Personal Property. See definition of these term* in text above. ANNUITY PAYMENT OF, ETC. And I direct that the said annuity of dol- lars shall be paid clear of all deductions, except legacy duty or tax, by equal half-yearly payments, the first payment to be made at the end of six calendar months from my death. ANNUITY PURCHASE OF, ETC. I give and bequeath an annuity of dollars to , for her life, for her sole and separate use ; and for this purpose I direct my executors, within months after my decease, to lay out a suffi- cient portion of my personal estate, in the pur- chase of such an annuity as aforesaid, in her name, from some incorporated company ; but neither she nor any person claiming under her shall be entitled to claim or accept in lieu or satis- faction thereof the sum which may be required for the purchase of such annuity. ANNUITY To WIFE DURING WIDOWHOOD. I give and bequeath unto my wife, W., over and above the estates which are already settled upon her (situate, etc.), one annuity or yearly sum of dollars, for and during the term of her natural life, in case she shall so long continue my widow ; and I do hereby direct that the same shall be charged upon the interest to arise, accrue, or be paid, as hereinafter is mentioned, from or by the capital to be employed in my trade or business of , which is to be carried on by my said ex- ecutors, according to the direction hereinafter for that purpose given and contained. And that the said annuity or yearly sum of dollars shall be paid to her, my said wife, by four equal quarterly payments, on , on , etc. in every year, the first payment to begin and be made on such of the said days as shall next happen after my de- cease. But in case my said wife shall marry again at any time after my decease, then and in such case I revoke the said bequest of the said annuity of dollars hereinbefore given to her, and direct that the same shall from thenceforth cease and determine, etc. CHARITABLE BFQUFSTS. I order and direct the sum of dollars t be divided as my wife shall think proper, or, in case of her death, as my said son shall think proper, among such of the poor persons resident in , where I now live, as shall happen to be upon my Christmas list, and shall have received a small donation by my order at the Christmas next preceding my death. I likewise order and direct the sum of dollars to be divided or given as my wife shall think proper, to or amongst any poor family or families of the aforesaid of and of , which shall seem to her to be most deserving of such reward or assistance, 39* CONVEYANCES. I give to the said J. N. the sum of dollars, upon trust to place out the same on government or real securities, at interest, in the name of such persons as he, his executors or administrators, shall think proper, with liberty to the trustees or trustee thereof, for the time being, of transposing the same, to the intent that such trustees or trus- tee thereof do apply the interest or dividends arising therefrom, for or towards the education of four poor boys, at or in the said school at , aforesaid, to be from time to time nominated by such trustee or trustees for the time being. CHILDREN WITH DIRECTIONS FOR INVESTMENT, ETC. I bequeath to each of my children, C. B., L. B., and D. B., the sum of dollars, with interest at the rate of per cent, per annum, from my death till the payment thereof, such interest to be paid half-yearly. And I hereby declare, that if my said daughter, D. B., shall be under twenty- one years at my death, and shall not have mar- ried, the legacy hereby given to her shall be re- tained by my trustees hereinafter named, their executors or administrators, upon trust, to pay the same to her when she shall attain twenty- one years or marry ; and upon trust in the mean time to pay the interest of such legacy to her, and her receipt, notwithstanding her infancy, to be an effectual discharge for the same; and if the said D. B. shall not attain twenty-one years or marry, the same legacy shall, upon her death, ink into my residuary estate. CONDITIONAL BEQUEST. Whereas the directors of University are now engaged in an effort to enlarge its sphere of action, and give it greater efficiency in promoting education, and being desirous, if such effort shall pr-ve successful, of still further enlarging its sphere and efficiency by endowing a professor- ship of in said university: therefore I give and bequeath to said (here insert full name), the sum of dollars, to be paid within years after my death, for the purpose of founding and I ermanently endowing a professorship of in said university; upon condition, however, that the sum of dollars shall, within years from the time of my death, be raised for the pur- pose of endowing two other professorships, and paying the indebtedness of said university. CORPORATION BEQUEST TO. I give And bequeath to (stating the full na me of Vie corporation, or, if not certainly known, describing it), at , the sum of dollars, to be applied to (state 'what). DEATH OP LEGATEE. And if any legatee be now dead, or die before me, I give the legacy intended for him or her to his or her executors or administrators, to be ap- plied as if the same had formed part of the per- sonal estate jf such legatee at his or her decease. DEHT. I bequeath to E. F., any debt which, at the time of my decease, shall be owing from him to me, together with any interest then due there- upon. Drivrs POSTPONEMENT OF COLLECTION, ETC. I authorize and empower, but do not require, my executors to defer and postpone the requiring payment of any debt (carrying interest) which may be owing to me from (name) at the time of my decease, for such period as my executors shall think fit. DOWER. See DFVISKS, below. DRFSS AND ORNAMENTS. I give and bequeath to my wife, W., absolutely 11 her trousseau, wearing apparel and linen, and the watches, rings, trinkets, jewels, and personal ornaments usually worn by her, or reputed to belong to her. FURNITURE, ETC., To CHILDREN. I bequeath to my children who shall be living t the time of my death all (etc., as firftmA, equally to be divided Detween them ; and if any dispute hould arise with respect to the division, I -This i* a convenient proviso in the case of legacies tf Mil-ill amount to infants. authorize my executors to distribute the Mid effects equally amongst my said children. FURNITURE, KTC., To WlFR DURING WlDOWHOOD. I give and bequeath to my wife during her life, and so long as she shall remain a widow, the use of all (state what). And after her decease or re- marriagr, I give and bequeath the same to (na,me) absolutely if he (or she; should be living at the decease or remarriage of my wife ; but if he (or she) should be dead, then to (several parties may here be named in succession ; or, in case the will has directed the testator's property to be sold, and the proceeds held in trust, say : and after her decease or remarringe I direct my executors and trustees to sell the same, and add the proceeds to the trust-fund, under this my will). FURNITURE, BOOKS, PROVISIONS, ETC., ETC. I give and bequeath to (state who), all the house- hold furniture, books, works of art, and other chattels and effects, together with wines, liquors, fuel, housekeeping provisions and other consum- able stores, which shall at my decease be in or about my dwelling-house at , except (state what). GOOD-WILL OF BUSINESS, ETC. I give and bequeath the good-will and benefit of the business of , which I am now carrying on at , and also all my capital and property which shall be employed therein at my decease, and also the leasehold premises situate and being No. , at , aforesaid, wherein the said business is now being carried on, for all my term and interest therein, unto my , abso- lutely. INFANT'S LEGACY. I bequeath to I. I., of , the sum of dol- lars: and if the said I. I. shall be under twenty- one years when the same legacy shall be payable I direct the same legacy to be paid to his father, F. L, of, etc., to be managed by him at his dis- cretion, for the benefit of his said son, till he shall attain twenty-one years ; in such case the receipt of the said F. I. to be an effectual dis- charge for the same legacy. JEWELRY, PLATE, AND HOUSEHOLD EFFECTS, DURING WIDOWHOOD. I give and confirm to my dear wife all the jewels, trinkets, and personal ornaments worn or used by her during my lifetime ; and I also give to her all my wines, liquors, and other con- sumable stores, and all my horses and carriages, for her absolute use and benefit. I give all my plate and plated articles, books, pictures and prints unto my said wife, to use and enjoy the same during her life, if she shall so long continue my widow ; and from and after her decease or second marriage (whichever shall first happen), to such son of me as shall first attain the age of twenty-one years. I give my leasehold dwelling-house, being No. , etc. 'describing it , and all my furniture and household effects being in or about or appropri- ated or belonging to the said dwelling-house, other than and not being plate or plated articles, books, pictures, or prints, unto my said wife, to occupy the said dwelling-house, and to use and enjoy the said furniture and household effects during her life, if she shall so long continue my widow, she paying the ground-rent, and all taxes and outgoings payable in respect of the said dwelling-house, and observing and performing the covenants contained in the lease under which the same is or at my decease shall be held. And I declare that from and after the decease or second marriage of my said wife (whichcvi > shall first happen 1 ) the said dwelling-house, furni- ture, and household effects shall sink into and form part of my residuary estate. PAYMENT OP LEGACIES. I direct that the legacies hereinbefore given to (naming the legatees} shall be paid in priority to any other legacy given by my will. PAYMENT OP LEGACIES FREE FROM DUTY. I direct that all legacies given by my said will, or any codicil thereto, shall be paid free from legacy duty or tax, CONVEYANCES. 393 PECUNIARY LEGACY. I bequeath to (name tht legatees) the um of dollars (to be paid to him, or her, within after my death). ANOTHER. I give the following legacies (that is to say) : To my nephew, N. W., dollars, to be paid to him at his age of twenty-one ; To N. E. dollars; to my niece, N. C., dollars, at and when she shall arrive at her age of twenty-one, or be married ; to my nephew^, N. U., dollars, at his age of twenty-one, with interest in the mean time ; UntoC. L. and D. N., children of my niece, N. S., dollars each ; all the said legacies to be paid to the respective legatees within twelve months after my decease (save and except those given to my snifl wife, my said trustees and executors, and my ser- vants, which are to be puid immediately after my death). I give unto the said D. R., the daughter of , the sum of on the day of her marriage ; I give after her decease the said sum of dollars: Unto such child or children of the said D. R. as shall attain the age of twenty-one years, to be divided among them (if more than one) in equal shares, and if but one, the whole to go to such one child as shall attain the said age. The por- tion or portions of such of them as may attain the said age in the lifetime of the said D. R. to be a vested interest or vested interests, though not payable till after her death, and the interest of the presumptive portions of such of her children as may be under the said age at the time of her death, or so much thereof as shall be thought necessary, to be applied for or towards the main- tenance and education of such infant child or children, until he, she, or they shall attain the said age , and the surplus dividends or interest, which may not be applied for that purpose, to accumulate and go along with the original share or shares ; or in case there shall be no such chil- dren who shall attain the said age, such accumu- lations to fall together with the principal sum into my residuary personal estate. I give unto D. W., daughter of my nephew, N. W., dollars, but the same not to be vested in, or paid to her till she shall attain the age of twenty-one years, and not to bear interest in the mean time. I give after the decease of R. S. unto such child or children of him, the said R. S., born in his lifetime or after his decease, as shall at- tain the age of twenty-one years, dollars, the same to be divided among them, if more than one, in equal shares, and if but one, the whole to go to such one child as shall attain the said age, and not to bear interest ; save that, in case of the death of the said R. S. , having a child or children under the age of twenty-one years, my will is, that my said trustees or trustee for the time being shall and may pay and apply any sum not exceeding the sum of dollars per annum, by equal quarterly payments, for and towards the maintenance and education of such infant child or children, until he, she, or they shall attain the age of twenty-one years. And I will that the portions of such children of the said R. S. as shall attain the said age of twenty-one years in her lifetime, shall be vested interests, though not payable till after his death. ANOTHER To A MARRIED WOMAN. I bequeath to W., wife of C. D., the sum of dollars. Said sum shall be for her sole and separate use and benefit, and that her receipt, notwithstanding her present or any future mar- riage, shall be a valid and effectual discharge of the same. RESIDUE OF ESTATE. And all the rest, residue, and remainder of my estate and effects, whatsoever and whereso- ever, and of what nature and kind soever, which at the time of my decease I, or any person or persons in trust for me, am, or are possessed of, or entitled unto, and not hereinbefore dis- posed of, I give, devise, and bequeath unto the said A. B. and C- D., their heirs, executors, ad- ministrators, and assigns, according to the na- ture and quality thereof respectively, to and for their own separate use and benefit. SHARK UNDBK ANOTHER WILL. And whereas, under the will of D. D., I am en- titled to a share in his residuary personal es- tate, I bequeath the said share to L>. E. SHILLING 10 SON. Whereas, my eldest son, S. B., has highly of- fended and disobeyed me, I therefore give and bequeath unto my said son, S. B., one shilling, and no more. STOCK FOR SUPPORT OF WIFE AND CHILDREN. I give and bequeath the interest and income of. dollars, per cent, loan of , to E. X. and T. R., their executors and administrators, for the separate use of my niece, N. P., wife of H. P., so and upon this express trust and confi- dence, that they, the said trustees, do and shall receive the interest and income to arise there- from, from and after the day of my decease, and apply the same to and for the maintenance and support of the said T. R., and to the maintenance, support, and education of her children, born and to be born. And if the said stock shall be redeemed or paid off, then my said trustees shall reinvest the pro- ceeds in such other stocks as they shall think best, in their names in trust, and receive and ap- ply the interest and income thence to arise to the like uses and purposes aforesaid, and so on as often as any stock held or to be held under this trust shall be paid off, and after the death of the said N. P., then in trust to pay over and divide the principal and all unapplied interest to and amongst all and every her children, born and to be born, that shall be alive at the time of her death, in equal parts, and if either of her children, born or to be born, shall be then dead, leaving is- sue, then such issue shall take in equal parts the share that his, her, or their parent would have taken if then living. TRUST FOR UNINCORPORATED SOCIETY. I give and bequeath to A. B. and C. D., and to their successors forever, the sum of dollars, in trust, for the benefit of such undergraduate students of the collegiate department of the University of , as shall be, or shall from time to time become, members of a literary association or society now organized among said students, and known as the Society, of which society I am a graduate member, to be applied by the said trustees to educational purposes for their benefit, in manner following {stating the appli- cation). Devises of Real Property. See definition of this term in the text above. DOWER DEVISE IN LIEU OP, ETC. I give and devise unto my beloved wife, W. B., al! that, my lands or tenement and parcels of ground, situate (giving tlie testator' s precise -words , etc.), together with the appurtenances, to hold to her, my said beloved wife, W. B., and her as- signs, for and during all the term of her natural life, she paying the taxes thereof and keeping the buildings in tenantable repair. And I do, moreover, give to my said wife, to her absolute use, the sum of dollars, lawful money of the United States, to be paid to her in three months next after my decease. And it is my will and meaning, that the provi- sion hereinbefore made for my said wife, in man- ner and form as aforesaid, shall be and shall be deemed adjudged and taken to be in lieu and bar of her dower or thirds or other portion of and in all my estate. DEVISE 10 EXECUTORS IN TRUST WITH POWER TO SELL, ETC. I give and devise all my real and personal es- tate, of what nature or kind soever, to E. X. and T. R., the executors of this, my last will and tes- tament, hereinafter nominated and appointed, in trust, for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same, at public or private sale, at such time or times, and upon such terms, and in such manner as to them shall seem meet. Pro- 594 CONVEYANCES. vided, however, that no part of my real estate as aforesaid shall be sold at public auction until after the expiration of years from the time of my decease. FRIEND DBVISB ro. In consideration of the love and friendship which I have and bear for and towards him, the said E. X.,and also in consideration of the many faithful services he has for many years last past done and performed for me in and about my affairs, and likewise in recompense for the great care and pains he may be at and put unto in the faithful execution of this my last will and testa- ment, I give and devise unto him, the said . X., and his heirs, all the rest, residue, and remainder f my real and personal estates whatsoever, goods and chattels, lands, tenements, and heredi- taments, both in possession and in reversion, that I shall be possessed of, or any way entitled unto, at the time of my decease (after all my debts and legacies are first paid and satisfied thereout, as afore- said), to hold and enjoy the same to his own proper use and behoof, and to his heirs and as- signs, forever. GRANDCHILDREN DEVISE. I give and devise unto my grandchildren, A. B. , C. D., the children of my daughter, D., and such other child or children of my said daughter, as maybe born of her in lawful wedlock, all my, etc., together with all my land, etc., and all the buildings thereon, etc., to hold the same to them my aforementioned grandchildren, the children of my aforesaid daughter, D., and their heirs and assigns, forever, as tenants in common and not as joint tenants; and I appoint my son, S. B., and his said wife, and the survivor of them, to be my trustees of the said estate, hereby em- powering them and the survivor of them, imme- diately after my decease, to enter upon and man- age the same to the best advantage of their said children during the life of my said son and daughter, or the survivor of them. And in order to preserve that dependence which children ever ought to have upon their parents, I do further order that my said son and daughter, or the survivor of them, shall not be compelled to account to their said children for the profits of said estate during the lives of my said son and daughter; but said trustees shall account to their children, or to such guardian as shall be ap- pointed to them, at such time as they the said trustees shall think proper. And if either of their said children shall dispute the account so by their said parents made, then I give and devise such part of said child's estate to my said daughter and her heirs forever, together with all the rents, issues, and profits that may have been made therefrom. HOUSES AND LANDS, ETC. I give and devise all my houses or tene- ments, lands and hereditaments, situate and being at , in the township of , in the said county of , which I purchased of G. R., unto and to the use of my son-in-law, S. L., the elder, his heirs and assigns forever. HOUSES AND LANDS. TO GO WITH OTHER LANDS, ETC. And I give and devise all the lands, tenements, and hereditaments, lying and being at or near , in the county of , which I purchased of G. R., and the devisees in the last will and testa- ment of D. D., deceased, with the appurtenances, to such and the same person and persons, and for such and the same estate and estates, as the 'tenements, farm, and lands, commonly called farm, situate, lying and being, at or near , aforesaid, which belonged to my late uncle, U. D., deceased, are by his will given, devised, di- rected, limited, or appointed. To the end and intent that the said lands and hereditaments so purchased by me as aforesaid may go along with said messuage, farm, and lands, called the farm, and be held and en- joyed therewith, by such and the same person and persons, for such and the same estate and estates, as the said messuage, farm, and lands, called farm, ire by my said late uncle's will given, devised, directed, limited, or appointed. LAPSE OP DBVISR, ETC. PROVISION TO PREVENT. Provided always, and I do hereby direct, that if any of the devisees or legatees in this, my will, named shall die before me, then the said devises and bequests shall not lapse, but in the case of real estate such person and persons as shall be the heirs of the devisee shall take as the devisee would have taken if such devisee had survived and outlived me ; and in case of a bequest of per- sonal estate, I will and direct that the same shall pass and go to the children of the legatee, and for want of a child or children of the legatee, then to the next akin of such legatee in the same man- ner that such legatee would have taken if such legatee had survived and outlived me. DKVISE FOR LIFE TO ONE PERSON, AND REVERSION TO ANOTHER. I give and devise all my real estate, of what na- ture or kind soever, to my wife, W. B. (or to my friend, F. F.), to be used and enjoyed by her (or him), during the term of her (or his) natural life ; and from and immediately after her (or his) de- cease, I give and devise the same to my friend, F. D., his heirs and assigns, forever. RESIDUE OF ESTATE UPON TRUST, ETC. I give all the rest and residue of my personal estate, which shall remain after payment of my debts and funeral expenses, unto the said and , their executors, etc., upon and for the trusts, etc., hereinafter mentioned (that is to say) : Upon trust that they, the said and , or the survivor, etc., do and shall, as soon after my decease as conveniently may be, with the con- sent and approbation of my said daughter during her life, and after her death, then of the proper authority of the said trustee or trustees for the time being, lay out and invest all the said rest and residue of my personal estate in the purchase of lands and tenements situate, lying, and being in , and convey and settle the said lands and tenements, so to be purchased as aforesaid, or cause and procure the same to be conveyed and settled, to such uses, and for such estates, and with and subject to such powers and provisos, as are hereinbefore limited, created, and expressed, of and concerning the said messuages, etc. , which are situate, lying, and being in the parish of A. aforesaid (other than and except the estates for life hereinbefore given, or limited to my said wife and son successively, and the aforesaid term of ninety-nine years, and the trusts thereof), or as near thereto as the death of persons, and other circumstances, will then permit. And, in the meantime, and until the said rest and residue of my personal estate shall be laid out and invested in such purchase or purchases as aforesaid, do, and shall from time to time, in- vest and lay out the same, or such part or parts thereof as he or they shall think fit, in the public stocks or funds, or on real securities at interest, etc. And my will is, and I do hereby direct, that all the interest, dividends, and annual produce of the said rest and residue of my personal estate, and of the stocks, funds, and securities, wherein or upon which the same or any part thereof is or shall be invested or placed, shall belong and be paid and payable to such person or persons as would, for the time being, be entitled to the rents and profits of the lands and tenements so to be purchased as aforesaid, in case the same were actually purchased and settled as hereinbefore is directed. SCHOOL OR COLLEGE. I give, etc., unto the said M. A., and to his heirs and assigns forever, all that, etc. Upon this special trust and confidence, nevertheless, that he, the said M. A., and his heirs, shall, from time to time, and at all times hereafter, permit and suffer the directors (or trustees) of school (or college), etc., for the time being, and their suc- cessors forever, to receive and take the rents, is- sues, and profits thereof, which 1 direct and ap- point, shall, from time to time, and at all times hereafter, be paid and allowed for and towards the maintenance and education of a poor scholar of the said school (or college), for and during and CONVEYANCES. 395 Until such scholar shall be Bachelor of Arts, or elected Fellow of the house ; and then to another poor scholar to be elected and chosen, winch scholar shall, from time to time, be nominated, elected, and chosen by the directors (or trustees) of the said college. DBVISB TO TRUSTEES, DURING A LIFE, OR LIVES. I give, bequeath, and devise all my real and per- sonal estate, of what nature or kind soever, to E. X. and T. R., the executors of this, my last will and testament, hereinafter nominated and ap- pointed, in trust, for the payment of my just debts, and the legacies and charges upon the said estate hereinafter specified, to be held and pos- sessed by them, for the purposes aforesaid, for and during the natural life of F. M., of the town cf , and State of , and for and during the natural life of S. M., infant son of the said F. M. ; and after their decease, and the decease of each of them, I give, bequeath, and devise my said estate to my son, S. B., his heirs and assigns: And I do hereby order and direct, that during the continu- ance of the said trust estate, as aforesaid, there shall be annually paid out of the net income and profits of the said estate, the sum of to my wife, W. B., in lieu of all dower or right of dower in and to my said estate; the sum of dollars to my son, S. B. ; and the sum of dol- lars to my daughter, D. B. ; and that the rest, resi- due, and remainder of the said net income and profits shall be divided equally between my said executors, in lieu of compensation for their ser- vices in the execution of the said trust. CODICILS TO WRITTEX WILLS. See VARIOUS CLAUSES, ETC., ETC., above. Codicil to Will General Form. I, , of , a , do make this, my codicil, hereby confirming my last will, made on the day of , and all my former codicils (if there be any}, so far as this codicil is consistent therewith ; and do hereby (state what). Codicil to Will-General Form. Additional Legacies Given. Whereas I, A. B., of , have made and duly executed my last will and testament, in writing, bearing date, etc. Now, I do hereby declare this present writing to be a codicil to my said will, and direct the same to be annexed thereto and taken as part thereof; And I do hereby give, bequeath, etc. In witness, etc. Codicil to Will General Form. 'Whereas I, A. B., of , have made, published, and declared my last will and testament, in writ- ing, dated, etc. Now I, the said A. B., do by this present codi- cil, to my last will and testament annexed, con- firm and ratify my said last will and testament, and every clause, bequest, and devise therein con- tained, etc. Codicil to Will General Form. I, A. B., of , having made my last will and testament, bearing date the day of , do now make this codicil, to be taken as a part of the same : Fit-it. I do hereby ratify and confirm said will in every respect, .except so far as any part of it is inconsistent with this codicil. Seiomf. Etc. (adding neiu provisions ; revoking appointment of executor ; substituting another execu- tor far executor deceased; appointing additional ex- ec utor ; making additional bequests, etc., etc.) A. B. In witness whereof, etc. (as in form of -will, above). Codicil to Will General Form. I, A. B., the within-named testator, do hereby make and publish this codicil, to be added to my last will and testament in manner following, to wit : I give and bequeath, etc. And whereas, in my said will, I have given and bequeathed unto my son,S. (who is since deceased), the sum of one hundred dollars, to be paid to him six months after my decease ; I do hereby declare that my will is, that the same be paid unto my daughter, E., immediately after my decease. And lastly, it is my will and desire, that this, my present codicil, be annexed to and made part of my last will and testament aforesaid. In witness, etc. Codicil to W r ill General Form. This is a codicil, to be added to and taken as part of the last will and testament of me, A. B., which bears date the day of , whereby I do revoke the devise in my said will contained, to my son, S., of all that farm, situated, etc., and containing one hundred and fifty acres, and do give and devise the same to my daughter, D., her heirs and assigns forever. I give and bequeath to my said son, S., in lieu of the said farm the sum of four thousand dol- lars ; and do hereby ratify and confirm my said will in all other respects. In witness whereof, I have hereunto set my hand and seal, this day of , A. D. . A. B. Signed, sealed, published and declared by the said A. B. as and for a codicil to his last will and testament, in the presence of us, who in his presence, and in the presence of each other, have, at his request, subscribed our names as witnesses thereto. W. T. N. S. Codicil to Will General Form. Appointing a Trustee and Executor in the Place of a deceased Trustee and Executor Appointed by the Testator's Will. Codicil to the last will and testament of me, A. B., of , which bears date the day of : Whereas, by my said will I have appointed T. X. to be one of the trustees and executors there- of (and also one of the guardians of my infant children after the decease of my wife) : And whereas the said T. X. having lately died, I am desirous that E. F., of , shall be substi- tuted as a trustee and executor of my said will (and a guardian of my infant children) in the place of the said T. X., deceased. I do hereby declare that my said will shall be construed and take effect as if the name of the said E. F. were inserted in my said will through- out instead of the name of the said T. X. And in all other respects I do confirm my said will. In witness, etc. Codicil to Will General Form. Revoking Several Legacies. 'Whereas I, A. B., of , have by my last will and testament in writing, duly executed, bearing date, etc., given and bequeathed to, etc. Now, I, the said A. B., being desirous of alter- ing my said will in respect to the said legacies, do therefore make this present writing, which I will and direct to be annexed as a codicil to my said will, and taken as part thereof; and I do hereby revoke the said legacies by my said will given to , and I do give to each of them the said , and , the sum of dollars only; and I give unto , etc., etc. And I do ratify and confirm my said will in everything, except where the same is hereby re- voked and altered as aforesaid. In witness, etc. Codicil to Will General Form. Indorsed Upon the Back of a Will. I, the within-named J. H., of , do make this present codicil, which I order and direct shall be taken as and for part of my within-written last will and testament, and which will as to all and every the uses, limitations, trusts, gifts, condi- tions, legacies, bequests, directions, and appoint- ments, therein mentioned, devised, given and contained, of and concerning my real and per- sonal estates therein mentioned, I do, by this my codicil, establish, ratify, and confirm (save and ex- cept such devh.es, uses, dispositions, and bequests therein mentioned, as are by me hereinafter revoked ar.'l made viy his own intellectual labor, applied to the materials of his composition, produce an ar- r.mgement, combination, or performance new in himself. ACCOUNTS between authors and publishers.? ACQUIESCENCE. Even where the statutory requisites to copyright have been duly observed, the conduct of the proprietor of a periodical may be of such a nature as to disentitle him to ,iid from a court of equity by means of inter- locutory injunction; for example, if one lie idly by and knowingly allow another person to incur the expense of bringing out a work, which is an infringement of his strict legal right.* ADDITIONS. See introduction to this subject, pbove. ACTS OF CONGRESS. See ASSIGNMENT, CON- STRUCTION, INFRINGEMENTS, LIBRARIAN OF CONGRESS, REMEDIES, REQUISITES, etc., etc., below. ADDITIONS. Copyright may exist in a novel arrangement as well as in recent corrections and additions to an old work not the property of the compiler.' ALIENS. Any citizen of the United States, or resident therein, is entitled to copyright. 1 AMENDMENT. See NAME AND DATE, be- low. ALTERATIONS, by a publisher who is pro- prietor of a work, made in a new edition under the author's name, so incorrect as to be injurious to the author's reputation, renders the publisher liable in an action for damages. 1 When, how- ever, a portion of a work is written to be pub- lished under the name of another, the author would have no remedy in case of its alteration or variation. ASSIGNMENT OF COPYRIGHT. Sec. 4955. Copyrights shall be assign- able in law by any instrument of writing, and such assignment shall be recorded in the office of the librarian of Congress within sixty days after its execution ; in default of which it shall be void as against any subse- quent purchaser or mortgagee for a valuable consideration, without notice. T FEES. " Sec. 4958. The Librarian of Congress shall receive from the persons ii-Poth. Prop. 170-175; 7 C. B. 268; 29 L. J. 20, C. P.; I L. T. (N. S.) 10 ; 9 Am. L. Reg. 33. See Code Napol. 566, 567. 0-2 Blatch. 46; 3 Story, 782; i Id. ii ; 2 Woodb. & M. 46. p-See 31 Beav. 258; 2 Jur. JN. S.) 348. q-i2 L. T. (N. S.) 54: Jur. (N. S.) 540; 13 Wood, 804. r-i East, 358, 360, 361 ; 3 Swanst. 672 ; i W. Bl. 321, 331 ; 5 Ves. i\ ; 18 Id. 223, n.; 8 Id. 215 : 16 Id. 260 ; 2 Beav. 6 ; 7 C. B. 4 ; 2 Sim. & Stu. i ; 3 K.& 1.708; 3 Story, 768; 2 Blatchf. 46; 5 McLean, 12; 8 L. Rep. (C. S.)4". 8-Laws U.S. 1870, July 8, Vol. 16. p. 212, Ch. 230, j) 85, Rev. 1873-74, Title I.X., Ch. 3. g 41)48". t-Sce i Moo. & R. 162 ; 5 Carr. & P. sip; ii Hare, 118; n Beav. na. u-n Hare, 118; to whom the services designated are ren- dered, the following fees :" " I. For recording the title or description of any copyright book or other article, fifty cents. " 2. For every copy under seal of such record actually given to the person claiming the copy- right, or his assigns, fifty cents. " 3. For recording and certifying any instru- ment of writing for the assignment of a copy- right, one dollar. " 4. For every copy of an assignment, ovtt dollar. "All fees so received shall be paid into th treasury of the United States." Copyright is personal property, and may be assigned. It must, however, be in existence to be assigned at law.* An execution pur- chaser, however, does not acquire the rights of an assignee in the article sold on execution; and a seizure and sale on execution of plates for which the debtor has obtained a copyright does not transfer the copyright to the pur- chaser; the debtor is entitled, without reim- bursing the purchaser for money paid on such sale, to an injunction to restrain the pur- chaser from striking off and selling copies therefrom.y The assignees under a commission in bankruptcy are not entitled to the manu- scripts of an author, although the copyright of a book which has been printed and published will legally pass for the benefit of creditors,* and the price paid by the bookseller is as com- pletely open to the diligence of creditors as the price of another commodity or merchandise. The reason assigned for this distinction is that the author's right of withholding the publication continues till the very moment his book is ac- tually given out to the public ; even the printer of the book would not be entitled to sell it for his payment, although there was not the small- est doubt that he has a complete lien over it till delivery, to prevent the author or his credi- tors from taking advantage of the publication till he shall have been paid.* The assignment of a copyright in general terms will be referred to what was in existence at the date of the assignment, and not to any future contingency. 6 It should not by con- struction be extended beyond the first term, un- less it seems to be actually meant by the author to be transferred forever, and including any fu- ture contingency. Where, however, it is clear that the author intends to transfer all his interest in the copyright, as well as his right in the continuance or extension of the term, a court of equity will enforce a reformation of the con tract so as to include all the assignees' interest d see ii Beav. 112. v-Laws U. S. 1870, July 8. Vol. 16, Ch. 230,2 89,0. 213; citing 8 Pet. 591; 18 How. 165; z Woodb. & M.; 42 Id. 497. w-Laws U. S. 1870, July 8, Vol. 16, Ch. 230, ? 92, p. 213, Rev. 1873-74, Title LX., Ch- 3, 1 4958; Laws U. S. 1874, June 18, Vol. 18, Ch. 301 , g 2, p. 79. x-8 L. J. (N. S.)Ch. 216; 3 Jur. 217; 9 Sim. 151. y-2 Hilliard Torts. 58 n.; 14 How. 528; 17 Id. 447. -2 Bos. & P. 67 ; see 4 Burr. 2311 ; Ambl. 695; 14 How. 528; 17 Id. 447; 4 B. Mon. 594, 596; 10 Mod. 518. a-i Bell Comm. 68; K'err Inj. 186. l-3o Mo. L. Rep. 101. C-2 Woodb. & M. 44. d-8 Wend 565 ; 3 Woodb. & M. 510. COPYRIGHT. 399 The assignment of an interest in a copyright must be in writing, though an agreement to assign may be by parol ; and such assignment though unrecorded will be valid as between the parties, and as to all persons not claiming under the assignees.* An assignment of the copyright of a work must have been in writing, and attested by two witnesses, in order to entitle the assignee to maintain an action for pirating it, e for the stat- ute requires two witnesses to a consent to pub- lication, and it is naturally inferred that an assignment which is of a higher nature than a mere consent must have at least the same solemnity.' In the absence of a special contract, the assignor of a copyright is entitled after assign- ment to continue selling such stock of the work as remains on hand at the date of the assign- ment.* An agreement to assign will be treated in equity as a valid assignment, upon the maxim that equity considers done that which ought to have been done. h An assignment made by parol may be valid if registered in the office where the copyright was entered, and certainly so if afterwards acted upon by the parties. 1 An author or proprietor may assign a dis- tinct portion of his copyright.* See CONSTRUCTION; INFRINGEMENTS; LI- BRARIAN OF CONGRESS; REMEDIES; REQUI- SITES, ETC., ETC., below. ASSIGNMENT FORMS. These assignments are void unless recorded in the office of the librarian of Congress within sixty days after their execution. Copyright Assignment Short Forms. See title ASSIGNMENTS, ante. Copyright No. , A., is (hereby) assigned to C. D. A. B. Dated . I (hereby) assign copyright No. , D.,to C. D., of . A. B. Dated . For value received I hereby assign copyright No. , C., to C. D., of . Dated . (Signed) A. B. For a consideration of I hereby assign unto C. D. one-half of the undivided interest in copy- right No. , F., for a term of years. Dated . (Signed) A. B. Copyright Assignment General Form. For the consideration hereinafter mentioned, I, the undersigned A. B., hereby sell, assign, trans- fer and set over unto C. D. all my title and inter- st in and rights under copyright No. , E. (for, five title or description of copyright) In consideration of which said C. D. shall pay unto (or perform for) said A. B. the following sums (or the following things) to wit : (setting forth the amounts, conditions, terms, and places of payment or performance, etc. (Signed) A. B. Dated . C. D. Copyright Assignment General Form. For a consideration cf dollars, the receipt d-2 Morgan, 228, 257. e-4 Campb. 8, S. C. : 3 M. & S.T, i lac. & W. 481 ; 2 B. & C. 861 ; 6 C. B. 456 ; 12 Jur-922; i8L.J.(C.P.)M: 7 C. B. 4; 4 Ho. L. Cas. liS; 31 L. J. (Exch.)8o. f-As to the distinction be- of which Is hereby acknowledged (or for value re- ceived), I hereby assign, transfer, and set over tc C. D. all my title and interest in and rights under a certain copyright, and the certificate thereof bearing date the day of , the title (or description) of which is in the following words, to wit: (copying- from the certificate): the right whereof I claim as author (or proprietor). To have and to hold the same unto the said C. D., and his legal representatives forever. In witness whereof, I have hereunto set my hand, this day of . A. B. Assignment Communication Enclos- ing Assignment to Librarian of on. gress, for Recording. Place , Date Librarian of Congress, Washington, District of Columbia : Enclosed please find an instrument of writing for the assignment of copyright No. C., from A. B. (of , author or proprietor) to C. D. (of , publisher), to be recorded in your office in con- formity with the laws of the United States re- specting copyrights. Find also [post office order (or draft) No. , for] dollars, fee for recording and certifying said instrument. Very respectfully, C. D. Assignment Certificate of the Libra- rian, of Congress of Recording. [L. s.J Library of Congress. "Washington, . The within assignment of copyright is this day recorded in the office of the librarian of Congress, in conformity with the laws of the United States respecting copyrights. Witness my hand and the seal of said office, this day of , A. D. . L. C., Librarian of Congress. ANOTHER. [L. s.] Library of Congress. Washington, District of Columbia. An (instrument of writing for the) assignment of copyright No. C., by A. B., of , to C. D., of , was recorded in book (or assignment record No.) , folio , this day of . L. C. , Librarian of Congress. ANOTHER. . [L. s.] Library of Congress. Washington, District of Columbia. The within (instrument of writing for the) assign- ment of copyright No. E. was recorded in (book , or) assignment record No. , folio (or page) , the day of . Date . L. C., Librarian of Congress. ARRANGEMENT. See introduction to this chapter, and ABRIDGMENTS, above. ARTICLES. In order to give the proprietor of an encyclopaedia, magazine, periodical, re- view, or serial, a copyright in articles com- posed for him by others, it is not necessary that there should be any express contract that he should have the property in the copyright : the fact of the author being paid by the proprietor for articles supplied expressly for the period- ical raises the presumption that the copyright is intended to be the property of the proprietor otherwise, the articles might be published hi the writer simultaneously, or shortly afterwards, possibly to the detriment and injury of such pro- prietor. But any author may reserve to him- self the right to publish any such composition in a separate form, and he will be entitled to the copyright therein when published separately, tween a license to publish and an assignment see 27 L. J. Ch. 254; 15 L- T. (N. S.) S"- g-LawRep. 7 Eq. 418. h-Shord. 158, // sea.; 2 Burr. 2400; 1830.315. i-See Scotch Sess. Cas. (N. S.) 8; 18 Id. (N. S.)co6. j-i3 Mo. L. Rep. 4*1. 400 COPYRIGHT. without prejudice to the right of the proprietor of the publication in which such article may have first appeared. A person may lie the proprietor of a copy- right in the separate parts of a periodical, etc., simply by reason of his employment of the writers.* See AUTHOR, below. AN AUTHOR is one who, by his own intel- lectual labor, applied to the materials of his composition, produces an arrangement or com- pilation new in itself. 1 Authors maybe considered as: I. Origina- tors ; 2. Compilers ; and 3. Translators. 1 " 1. An originator has choice of his own thoughts and words, and his work is an entirely new and original one composed of such words and thoughts. 2. A compiler, abridger, arranger, or editor, is one who, by his own intellectual labor and judgment, arranges, composes, frames, or makes a composition of literary or scientific matter from various sources, and not originally pro- duced by him. 3. A translator or interpreter is one who ren- ders or interprets literary matter from one lan- guage to another, retaining the idea and the sense which are not his, and clothing them in words of his own selection. He is not a mere para- phraser, since a creditable paraphrase may be produced without the slightest familiarity with, knowledge of, or reference to the language of the original work, by a mere reference to a pre- vious translation and a book of synonyms. The labor of a conscientious and faithful translator must be much more original and primary. Where a person employs another to compile a book, and gives him some suggestions as to its character and form, and agrees to pay for such compilation, and thereupon the author conveys the copyright to the employer, such conveyance relates only to the original or first term of the copyright. The author has the sole interest in the additional term allowed to au- thors, and may renew the copyright and enjoy the benefit of such renewal. When, in the course of the composition or production of a literary or scientific work, an author employs another or others to assist him, the product of their individual labor will belong to him who is the author and proprietor of the whole. Where a person is employed, for a reward paid to him, to write a musical composition to be used as part of the representation of a dra- matic piece, and as a mere accessory to such dramatic piece, the composer of the musical accessory has no copyright therein : the prop- erty in music so composed becomes vested in the, employer, and he does not require the con- sent of the composer in order to represent it.? h-See2sL.J.(C. P.) 127: 170.3.427; it Jur. 77:16 L. J. (N. S.)Ch. 140. 1-2 Blatchf. 46. m-Morgan Law of Literature, vol. T, p. 318,? 151, et sef. ; Id. (} 156, et seq. _n-2 W. & M. 23. _o-Poth. Prppr. 170, 175 ; 7 C. B. (N. S.) 268 ; 29 L. T. (C. P.) ; i L. T. (N. S.) 10 : 9 Am. ' Reg. 33: Code Nap. 566. 567. p-7 C. B. (N. S.) 268 ; 29 L. J. 23, C. P. ; i L. T. (N. S.) 10; see 16 L. L. Reg. 33: Code Nap. 566. 567. p-7 C. B. (N. S.) 268; 29 L. J. 23, C. P.; i L. T. (N. S.) 10; see i~ ' T. (N. S.) 453 ; 15 Wood, 838 ; 9 Am. L. Reg. 47. j- Unknmon author. Where an author is un- known, the copyright of a book belongs to its publisher.' BANKRUPTCY. The assignees under a com- mission of bankruptcy are not entitled to the manuscripts of an author, although the copy- right of a book which has been printed and published will legally pass for the benefit of the creditors.' And the price paid by the book- seller is as completely open to the diligence of creditors as the price of any other commodity or merchandise.* BEQUEST. Copyright may be the subject of a bequest, and on the death of the person to whom it belongs, without any such bequest, will devolve on his personal representatives.' BOOK. A "book" within the meaning ot the act may consist of a single sheet, as the words of a song or the music accompanying it." But a newspaper or price current is not a book within the meaning of the act. T A label used in the sale of any atticle is not a book within the provisions of the copyright act. w BUSTS. See SCULPTURE, MODELS, AND BUSTS, below. BLASPHEMY AND PROFANITY are offences not only against morals and the public weal, but is in many States made a penal offence. They tend to undermine not only Christianity, which is a part of our law, but also disturb the peace and corrupt the morals of the community. If these offences in the shape of publications can- not be dealt with criminally, as in most cases they can, they are beyond the reach of any pro- tection in law or equity; and while they are without relief from invasion by others, they will be restrained where any positive injury results from their publication. CALENDARS, COURT GUIDES, DICTIONARIES, DIRECTORIES, AND WORKS OF THIS DESCRIP- TION, ETC. The difficulty as to this class of cases is, that they do not only relate to a sub- ject common to all mankind, but the mode of expression and language is necessarily so com- mon that two persons must, to a very great ex- tent, express themselves in identical terms in conveying the instruction or information to society which they intend.* In all cases where the sources from which materials for composi- tion are to be derived are of a common or gen- eral nature, they are open to any one to gain a copyright in any arrangement of them which he chooses to make.7 But although a person may thus acquire a copyright in his own arrange- ment of common materials, the materials them selves are equally open to every one else who chooses to have recourse to them, and different copyrights may be acquired in different arrange- ments of the same common materials. These i Morgan, 209, ? 250. r-2 B. & P. 67 : 4 Burr. 2311 ; Ambl. 695 : 14 How. 258 ; 17 Id. 447; 4 B. Mon. 594, 596; 10 Mod. 518. S-i Bell Comm. 68 ; Kerr on In- junction, 186. t-Ambl. 737. n-a Paine C. C. 383, 391 . V-Id. w-4 McLean, 516. x-6 W. R. 3S2; 2 W. & M. 497. y-9 Sc. Sess. Cas. 'zd Ser.) 758 ; 2 Paine, 395 ; 3 Story, 781 ; Law R. i Eq. 697; 35 L. J. 423; 14 L. T. (N. S.) 222. COPYRIGHT. 401 arrangements must, however, be independent ; a later arrangement must not be a servile imi- tation or reproduction of an earlier one ; other- wise it subjects its author to the charge of piracy. 1 Of the whole class of works embracing tables of figures, dictionaries, calendars, court guides, etc., etc., the only mode of arriving at the amount of labor bestowed is by the common test resorted to of discovering the copy of errors and misprints indicating a servile copying.* A CHATTEL MORTGAGE on the copyright of a work is not a mortgage on the profits arising from a use of the copyright. 1 * COMMON MATERIALS, ETC. See CALENDARS, COURT GUIDES, ETC., ETC., above; DICTION- ARIES, DIRECTORIES, ETC., below. COMPILATION. " It is a great mistake to sup- pose because all the materials of a work, or some parts of its plan and arrangements and modes of illustration, may be found separately, or in a different form, or in a different arrangement in other distinct works, that, therefore, if the plan, or arrangement, or combination in another work is new, or for the first time made, the au- thor, compiler, or framer of it is not entitled to a copyright. The reverse is the truth in law," etc.* No person has a right to borrow another's plan and arrangement and illustrations, and ser- vilely copy them into any other work. d The preparation and collection of notes from various sources is a work of no small labor and intellectual exertion : the plan, the arrange- ment, and the combination of these notes belong exclusively to the person collecting and ar- ranging them. He is justly deemed the author of them in their actual form and combination, and is entitled to a copyright accordingly. If no work could be considered by our law as en- titled to the privilege of a copyright, which is composed of materials drawn from many differ- ent sources, and for the first time brought to- gether in the same plan and arrangement, and combination, simply because those materials might be found scattered up and down in a great variety of volumes, perhaps in hundreds, and even thousands of volumes, and might have been brought together in the same way and by the same researches of another mind equally skilful and diligent, then what would become of the elaborate commentaries of mod- ern scholars upon the classics, etc., treatises upon astronomy, mathematics, natural philosophy and chemistry, legal treatises, digests and text books, the materials of which must essentially depend upon faithful abstracts, formulae, and illustra- tions? CONSTRUCTION OF COPYRIGHT IMPORTA- TION, PRINTING, AND PUBLISHING OF FOREIGN WORKS, ETC., ETC. Sec. 4971. Nothing in this chapter shall be construed to prohibit the printing, publishing, *-L. Rep. i Eq. 697 ; 35 I.. J. 423. Ch. ; 14 L. T. CN. S.)222; i East. 361,0. -6 Wood, 3-2 ; L. Rep. 9 Eq. 324. b-3L. Rep. aCh. App. 703; 38 L. J.9i7,Ch. ; L. T. (N. S.) 223. 0-3 Story, 782. d-Id. c-See i Story, u ; 7 C. B. 4. f-Laws U. S. 1870, July 8, Vol. 16. Ch. importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, en- graving, or photograph, written, composed, of made by any person not a citizen of the United States nor resident therein.' See REQUISITES OF A VALID COPYRIGHT, below. CONTRACTS BETWEEN AUTHORS AND PUB- LISHERS, ETC. In all agreements between authors and pub- lishers the terms should be distinctly stated, and the respective rights of the parties clearly defined. The number of copies of which the edition is to consist should be declared; other- wise the publisher might, if so disposed, print 20,000 as one edition.* Agreements between authors and publishers should express beyond a doubt whether they are to operate as assignments of the copyright in the work, or merely as licenses to publish.* If the author sell and dispose of his manuscript in specie to a publisher, with the express un- derstanding that the latter is to publish it, he cannot afterwards copyright in his own name; the copyright belongs to the publisher. 1 Where an agreement between author and publisher is that the publisher shall take the whole charge, risk, and duty of bringing out the work (as he thinks best for the interest of both parties), such publisher has the right or" fixing the price of such work when brought ouf I When an agreement between author and publisher states that after payment of the ex- penses of publication, etc., " the profits remain, ing in every edition that should be printed of the work are to be divided into two equal parts, one moiety to go to the author, and the other to the publisher," this points out certain definite times for the adjustment of the ac-. counts, and at which the author becomes en- titled to terminate his agreement with the publisher. Nor can the publisher by stereo- typing the work deprive the author of this right.* Under a contract between author and pub- lisher, where the publisher agrees to publish the work and pay the author for copyright seven and a half cents for every copy of the book published, the publisher does not obtain the exclusive right to publish the work. 1 If an author agree in writing to supply a bookseller or publisher with a manuscript of a work to be printed by the latter, an action for damages can be maintained for refusing to furnish the same, m provided the work be one which, if published, would not subject the author to punishment. Where, however, the author is engaged for a certain sum to write an article to appear, among others, in a work which is discontinued before any of it had been published, the pub- 230, ? 103, p. 215 ; Rev. 1873-4, title 60, Ch. 3, J 4971. K-4 K. & J. 656, 669. h-6 De G. M. & G. 223 ; 3 K. &j. 276. i-See 7 Biatchf. 152. j-See 3 K. & J. 276 j Shortl. 271 ; 24 K. & J. 276. k-2 Morgan, 635, J 43* and note. 1-33 N. Y. Superior 1.219. 111-2 Stark. N, P. C. 107 ; See 3 Wils. C. C. 157. n-Id. 402 COPYRIGHT. Ushers are not entitled to claim the completion of the article in order that it may he published in a separate form for general readers, but are bound to pay the author a reasonable sum for the part which he has prepared. An author may bind himself not to write upon a particular subject, or only for a particu- lar person.? CONTRACT FORMS. See ASSIGNMENTS, above, LICENSES, below. See title CONTRACTS, ante. Agreement, Contract, or Memorandum. Reservation by Artist of Copyright in a Drawing, Painting, or Photograph, etc. It is hereby agreed between A. B., of , and C. D., of , that the copyright No. , C, of the drawing (painting, or photograph;, entitled , representing , made (or produced) by said A. B., and now (sold, assigned, and disposed of, or now executed on my behalf), is reserved to said A. B. Dated . (Signed) C. D. Witnesses, W. T.,N. S. Agreement. Contractor memorandum. Assignment of Copyright in Drawing, Painting, or Photograph to Purchaser, etc. It is hereby agreed between A. B., of , and C. D., of , in consideration of the sum of , over and above the price of the work hereinafter described, paid by said C. D. fo said A. B., that the said C. D. is entitled to the copyright in the (drawing, painting, or photograph), made (or pro- duced) by said A. B., entitled , and represent- ing , now first sold and disposed of to said C. D. A. B. (or A. B. by A. A , Witnesses, W. T.,N. S. his agent.) Agreement. Contract, or Memorandum. For Publication of a Limited Edition. It is agreed : That C. D., of , publisher, at his own cost and expense, upon the conditions and for the consideration hereinafter mentioned, shall pub- lish copies ot(here copy the title of_the work). That said work shall be printed in type and page corresponding with . That said work shall be divided into vol- umes of pages (or sheets) each. That said work shall be sold (in boards, etc., etc.) at the retail price of , and wholesale price of , but should said work exceed pages (or sheets) a proportionate increase shall be made in said charges, as well as the consideration herein- after named. That in consideration of the premises said C. D. shall pay said A. B. the sum of dollars (or percent, of the retail [or wholesale] selling price of said work as follows, to wit) : That said C. D. shall present said A. B. with copies of said work, free of charge, upon publication thereof. In witness whereof, said parties have hereunto set their hands this day of . C. D. Witnesses, W. T., N. S. A. B. Agreement, Contract, or Memorandum. Compilation, etc., and Sale of a Work. This agreement (contract, or memorandum), made this day of , between A. B., author (or in- ventor, etc.), of , of the one part, and C. D. and E. F. (hereinafter called D. & F.;, publishers of , of the other part, witnesseth : That said A. B. shall, on or before the day of next, compile, edit, and write a work, to be entitled , together with a comprehensive and full index and table of cases thereto, and cor- rect and revise the proof-sheets of the same. That said A. B. shall sell, assign, transfer, and set over unto said D. & F. his copyright, and all his title and interest in and rights under the same unto said D. &. F. for the sum hereinafter men- tioned. That said A. B. shall have copies of said work free of charge. That said D. & F., and their legal representa- tives, shall print and publish, and bear all the charges and expenses of printing, publishing, ad. vertising, and selling said work, and pay to said A. B. for his said copyright, interest, title, and right the sum of dollars, on the day of publi- cation of the same. In witness whereof, said parties have hereunto set their hands the day of . A. B. Witnesses, W. T. N. S. D. & F. Agreement, Contract, or Memorandum. Publication and Sale Upon Half Profit. This agreement (contract, or memorandum), made this day of , between A. B., of , and C. D.,of , witnesseth: That said C. D. shall, at his own expense and risk, publish a work entitled . That said C. D., after deducting from the pro- duce of the sale thereof the charges for plates, printing, paper, advertisements, embellishments, cuts, etc., and other incidental expenses, including the allowance of per cent, of the gross amount of sale, for commission and risk of bad debts, shall divide the profits remaining of each and every edition that shall be printed of the work into two equal parts, one moiety to be paid to said A. B. and the other moiety to be retained by said C. D. That all books sold shall be accounted for at the wholesale 'or retail) trade price, unless it be advi- sable to dispose of any at a less price, which shall be left to the judgment and discretion of said C. D., on due notice to said A. B. That copies of said work shall be presented to said A. B. upon publication, free of charge. "J In witness whereof, said parties have hereunto set their hands, the day and year above written. A. B. Witnesses, W. T., N. S. C. D. Agreement, Contract, or Memorandum. To Correct, Enlarge, and Revise a Work. This agreement (contract, or memorandum), be- tween A. B., of , and C. D., publisher, of , witnesseth : That A. B., in consideration of the sum of dollars, to be paid as soon as the last proof sheets of the work hereinafter mentioned are corrected for press, agrees to examine, correct, enlarge, and revise the work known as , and to furnish ad- ditional manuscript matter for a new edition of said work, and to examine, correct, enlarge, and revise the index of the same. That the new edition of said work shall be of the same pages as the present work, and contain an equal amount of matter on each page. That the additional matter furnished shall en- large said work not less than pages. That said matter shall be furnished to C. D. at not less than pages per day, commencing on the instant. That said A. B. shall examine and correct all proof sheets as soon as they shall be furnished. That said C. D. shall complete the index within a reasonable time (not to exceed ) after the whole signatures of the text shall be ready for him for that purpose. That said C. D. shall print said work as the matter shall be supplied, and provide said A. B. with proofs of the same by signatures as each signature shall be worked off, for the purpose of arranging said index. That said C. D. shall furnish said A. B. with bound copies of said work as soon as conve- nient after publication. . In witness whereof, said parties have hereunto set their hands, this day of . A. B. Witnesses, W. T., N. S. C. D. Agreement, Contract, or Memorandum. This agreement (contract, or memorandum), made this day of , between A. B., of .author of , of the one part, and C. D. and E. F. (here- inafter called D. & F.), publishers, of the other part, witnesseth: That said A. B. shall fully prepa:e the whole of said work for the press on or before the day of , and shall correct the proof sheets, and superintend the printing thereof. 0-5 C. & P. 58. p-i8 Ves. 437 ; ee a Cooper's Cas. 216. o.-See 3 K. & J. 271. COPYRIGHT. 40J That the alterations and corrections of the proof sheets and revises which shall exceed the charge of per sheet (or page) shall be borne and paid by said A. B., and shall be deducted out of his share of the profits. That in case all the copies of said books shall have been sold off, and a second or any subse- quent edition of said book shall be required by the public, the said A. B. shall make all the ne- cessary alterations and additions thereto, and said D. & F. shall print and publish said second and every subsequent edition of said book upon the conditions herein contained. That said D. & F. shall direct the mode of print- ing said book, and shall bear and pay all the charges thereof, and of publishing the same (ex- cept as herein otherwise provided), and shall take all the risk of the publication upon themselves. That said D. & F. shall, out of the proceeds of the sale of said book in the first instance, be re- funded all the costs and expenses which they shall have incurred respecting said book, after which the profits shall be equally divided be- tween said A. B. and D. & F. That accounts shall be made up at the end of every quarter (or six months, or year), and the prof- its, if any, be then divided. That said D. & F. shall account for all the copies of said book which they shall sell, at the wholesale (elow. Sec. 4948. All records and other things relating to copyrights and required by law z-8 Wend. 568. f-Per Lord Fullerton, g Scotch Sess. Cas. (ad Ser.) 754, 755, Feb. 27, 1847. On the question of industry and knowledge, time and labor, see i East. 363 ; 17 Ves. 425; ii W. R. 934 ; 3 Story, 768 ; i Tamlyn.jos; 5 S. C. Sess. Ca*. (zdSer.) 416: i Story, 17; 12 Ves. 276. b-Per Lord Hardwicke, 2 Atk. 342 ; 2 V. & B. 10,; 4 Burr. 2331, 2330, 230-5 ; Ambl.og*; 2 Eden. 329; xBro. 129; ii C. B. (N. S.) 139; Mor. Diet, of Dec Vols. 19, 20; App. Lit. Prop. 13; j Coll. 565; 2 Story, to be preserved, shall be under the control of the librarian of Congress, and kept and preserved in the library of Congress ; and the librarian of Congress shall have the im- mediate care and supervision thereof, and, under the supervision of the joint commitlee of Congress on the library, shall perform all acts and duties required by law touching copy- rights.' 1 Sec. 4949. The seal provided for the of- fice of the librarian of Congress shall be the seal thereof, nnel by it all records and papets issued from the office, and to be used in evi- dence, shall be authenticated. Sec. 4950. The librarian of Congress shall give a bond, with sureties, to the treasurer of the United States, in the sum of five thousand dollars, with the condition that he will render to the proper officers of the tieasury a true ac- count of all moneys icceived by virtue of his office/ Sec. 4951. The librarian of Congress shall make an annual report to Congress of the num- ber and description of copyright publications for which entries have been made during ihe year.* Sec. 4956. No person shall be entitled to a copyright unless he shall, I, before publication deliver at the office of the librarian of Congress, or deposit in the mail addressed to the librarian of Congress, at Washington, District of Columbia, a printed copy of the title of the book or other article, or a descrip- tion of the painting, drawing, chromo, statue, statuary, or model or design for a work of the fine arts, for which he desires a copyright ; nor unless he shall also, 2, within ten days from the publication thereof, deliver at the office of the librarian of Congress, or deposit in the mail addressed to the librarian of Con- gress, at Washington, District of Columbia, two copies of such copyright book or other article, or, in case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of the same. h Sec. 4957. The librarian of Congress shall record the name of such copyright book, or other article, forthwith in a book to be kept for that purpose, in the words following: " Library of Congress, to wit: Be it remembered that on the day of , , A. B., of . hath deposited in this office the title of a book (map, chart, or otherwise, as the case may be, or description of the article), the title or description of which is in the following words, to wit : (here insert the title or descnp tion), the right whereof he claims as author (originator, or proprietor, as the case may be), loo ; 6 Exch . 583 ; See 32 Bea v 462 ; 2 N . R 2^6 ; Ambl . 342 ; i Ball & B. 207 . a V. & B. u; J Edw. Ch. 515 . 3 Barb. Ch 320, 4 Duer, 37 y : 35 Barb. 502 ; 3 Id 320. C-Copinger Copyright, 3_J. l-Laws 1870, Julv 8, Vol 16, Ch 230, 85, p. 212; Rev. 1873-4, Title LX, Ch. 3, \ 4948. e-ld Rev. 1873-4; Id. ?4949 ; f-Id. Rev. 1873- 4 : Id. ?49so g-Id. Rev. 1873^ ; Id. 4951. Il-Id. #90 : see g 86 ; Rev. 1873-4 : 4952 : see Id. ? 4956 ; citing 1 Pet. 591 ; 14 How. 528 * Blatchf. 625 ; 5 Id. 87 ; Id. 325 . Id 362 . 6 Id. 356 COPYRIGHT. 407 in conformity with the laws of the United States respecting copyrights. C. D., Librarian of Congress." And he shall give a copy of' the title or description, under the seal of the libra- rian of Congress, to the proprietor whenever he shall require it. 1 " Sec. 4958. The Librarian of Congress shall receive from the persons to whom the services designated are rendered, the .following fees ;J " I. For recording the title or description of 'any copyright book or other article, fifty cents. " 2. For every copy under seal of such record actually given to the person claiming the copy- right, or his assigns, fifty cents. " 3. For recording and certifying any instru- ment of writing for the assignment of a copy- right, one dollar. "4. For every copy of an assignment, one dollar. "All fees so received shall be paid into the treasury of the United States." Sec. 4959. The proprietor of every copy- right book or other article shall deliver at the office of the Librarian of Congress, or deposit in the mail addressed to the Librarian of Congress, at Washington, District of Columbia, within ten days after its publication, two complete printed copies thereof, of the best edition issued, or description or photograph of such article as hereinbefore required, and a copy of every subsequent edition wherein any substan- tial changes shall be made. k Sec. 4960. For every failure on the part of the proprietor of any copyright to de- liver, or deposit in the mail, either of the published copies, or description, or pho- tograph, required by Sections 4956 and 49 C 9, the proprietor of the copyright shall be liable to a penalty of twenty-five dollars, to be recovered by the Librarian of Congress, in the name of the United States, in an action in the nature of an action of debt, in any district court of the United States within the jurisdic- tion of which the delinquent may reside or be found.' Directions Issued by the Librarian of Congress for Securing Copyrights, Under the Revised Act of Congress, which took effect, August 1, 1874. OFFICE OF THE LIBRARIAN OF CONGRESS, Washington, 1877. Entry of Title or Description, etc. I. A printed copy of the title of the book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or a description of the painting, drawing, chromo, statue, statuary, or model or design for a work of the fine arts, for which copyright is de- sired, must be sent by mail or otherwise, prepaid, addressed, LIBRARIAN OF CONGRESS, WASHINGTON, D. C. This must be done before publication of the book or other article. . A fee of fifty cents, for recording the title of each book or other article, must be inclosed with the title as above, and fifty cents in addition (or one i-Id. 391 ; Rev. 1873-4; Id. \ 4957- J-U- ? QZ. Rev. 1873-4; Id. 4958. k-Id-293; Rev. 1873-4 ; Id. 4959. dollar in all) for each certificate of copyright vnder seal of the librarian of Congress, which will be trans* mitted by return mail. Sending two Complete Copies, Penalty, etc. 3. 'Within ten days after publication of each book or other article, two complete copies of the best edition issued must be sent to perfect the copyright, with the address, LIBRARIAN OF CONGRESS, WASHINGTON, D. C. It is optional with those sending books and other arti- cles to perfect copyright, to send them by mail or x- press ; out, in either case, the charges are to be prepaid by the senders. Without the deposit of copies above required the copyright is void, and a penalty of twenty-five dollars is incurred. No copy is required to be deposited elsewhere. Notice of Copyright to be Given by Imprint. 4. No copyright is valid unless notice is given by inserting in every copy published, on the title page or the page following, if it be a book ; or, if a map, chart, musical composition, print, cut, engraving, pho- tograph, painting, drawing, chromo. statue, statuary, or model or design intended to be perfected as a work of the fine arts, by inscribing upon some portion thereof, or on the substance on which the same is mounted, the following words, viz. : " Entered ac- cording to act of Congress, in the year , by , in the office of the librarian of Congress, at Washington ; " or at the option of the person entering the copyright, the words : " Copyright, 18 , by ." The law imposes a penalty of one hundred dol- lars upon any person who has not obtained copy- right who shall insert the notice, " Entered ac- cording to act of Congress," or " Copyright," etc., or words of the same import, in or upon any book 01 other article. Translations, etc. 5. Any author may reserve the right to trans- late or to dramatize his own work. In this case, notice should be given by printing the words, " Right of Translation reserved," or, "All rights re- served," below the notice of copyright entry, and no- tifying the librarian of Congress of such reservation, to be entered upon the record. Duration of Copyright. 6. Each copyright secures the exclusive right of publishing the book or article copyrighted for the term of twenty-eight years. Six months be- fore the end of that time, the author or designer, or his widow or children, may secure a renewal for the further term of fourteen years, making forty-two years in all. Renewal of Copyright. Applications for renewal must be accompanied by explicit statements of ownership, in the case of the author, or of relationship, in the case of his heirs, and must state definitely the date and place of entry of the original copyright. Time of Publication. 7. The time within which any work copy- righted may be issued from the press is not limited by any law or regulation, but depends upon the discre- tion of the proprietor. A copyright may be secured for a projected work as well as for a completed one. Assignments. 8. Any copyright is assignable in law by any in- strument of writing, but such assignment must be recorded in the office of the librarian of Congress, within sixty days from its date. The fee for this record and certificate is one dollar, and for a certified copy of any record of assignment one dollar. Copies, or Duplicate Certificate*. 9. A copy of the record (or duplicate certificate) of any copyright entry will be furnished, under seal, at the rate of fifty cents each. Serials or Separate Publications to he Copyrighted. 10. In the case of books published in more than one volume, 1 " or of periodicals published in num- 1-Id. 04 ; Rev. 1873-4 ; Id. \ 4960. Ill-Copyright notict in the first volume is sufficient, i N. Y. Leg. Obs. 19^ COPYRIGHT. bcrs, or of engravings, photographs, or other ar- ticles published with variations, a copyright is to be taken out for each volume or part of a book, or num- ber of a periodical, or variety, as to size-, title, or in- scription, of any other article. Copyright for Works of* Art. II. To secure a copyright for a painting, statue, or model or design intended to be perfected as a work of the fine arts, so as to prevent infringement by copying, engraving, or vending such design, a defi- nite description must accompany the application for copyright, and a photograph of the same, at least as large as " cabinet size," must be mailed to the Librarian of Congress within ten days from the completion of the work. Xo Labels Copyright. xa. Copyrights cannot be granted upon trade- marks, nor upon labels intended to be used with any article of manufacture. If protection for such prints or labels is desired, application must be to the patent office, where they are registered at a fee of six dollars for labels, and twenty-five dollars for trade-marks. Fnll Name of Proprietor Required. 13. Every applicant for a copyright must state distinctly the name and residence of the claimant, and whether the right is claimed as author, designer, or pro- prietor. No affidavit or formal application is required. LIEN. Electro or stereotype printers have not a general lien on plates not manufactured by themselves, but only put into their hands for the purpose of printing from them. m To establish a general lien such printer must show such a custom of trade that the other party to the transaction contracted with reference to such custom ; " nothing short of this will dis- pense with an express contract," etc. n A printer who is employed to print certain numbers, but not all consecutive numbers, of an entire work, has a general lien upon the copies not delivered for his balance due for printing the whole of those numbers. A printer of a book in process of publica- tion is not entitled to sell it for his payment,? although he has a lien upon it against the author or his creditors until delivery. See title BAILMENTS, ante. LOCAL OR STATE COPYRIGHT. Although a particular State cannot take away from an indi- vidual the property given him by act of Con- gress, and though the laws of such State are imperative as against the laws of the United States with which they may come in collision,") yet if an author or inventor instead of resort- ing to the act of Congress should apply to the general assembly or legislature of a particular State for an exclusive right to his production, there is nothing to hinder that State granting it, though the operation of such grant would be confined to the limits of the State, 1 " and the use of the property is of exclusively local char- acter; like all other property it must be used and enjoyed within each State according to the laws of such State.* in-M. & M. 456, 465: 4 C. & P. 151. n-Id., Id. 0-3 M. & S. 167. p-Maugham Literary Property, 177, n. 4. q-See g Wheat. 186. r-9 Johns. 581. -ld. t-See opinions of Cockburn, C. J., and Pilackburn, ]., in i,. Rep.; i Q B. 350, 154: 7 B. &S 869; 15 L. T. (N. S.) 530: 36 L. J. ioj, P>-: and Kelly, C. B. on Ap- ral, L. Rep.; 3(^.723:9 B. & S. 175; 37 L. J. 84:9 ; )6 L. T. (N. S.} tos: Shortl. 118. n-i Y. & C. JPI, v-ld. w-i C. B. (N. S.) i8z. x-7 C. B. 4. y- MANUSCRIPTS. See INFRINGEMENT, above ; REMEDIES, ETC. ; UNPUBLISHED, below. MUSICAL COMPOSITIONS. Although the score of an opera or piece of concerted music is so far an independent work as to be copy- righted in the name of the compiler, it seems that one may not compile such score without the consent of the composer of the opera or piece.* Piracy may be of part of an air as well as of the whole." To publish in the form of quad- rilles and waltzes the airs of an opera, of which there exists an exclusive copyright is an instance of piracy.' The addition of words, prelude, and accom- paniment to an old air gave the adapter a copy- right in the whole composition,*' and where a person adapted words to an old air and pro- cured a friend to compose an accompaniment, his assignee was entitled to describe himself in an action for piracy as proprietor of the copy- right in the entire composition. 1 As to how far an arrangement for the pianoforte of the score of an opera is an original work.r NAME AND DATE, ETC. Errors in the name of a person copyrighting, or of the date of copyright, prevent the author or proprietor from proceeding by action, suit, or otherwise, until such errors have been amended; or invalidate a subsequent assignment under the act. 1 The name of a firm will be sufficient without the names of all its members.* A change in the style of printing an author's or publisher's name, or a change of publishers will not affect the copyrighted title of a book. See RECORD, ETC., below. NAME OR TITLE. The name or title of a work may be considered as a kind of a trade- mark which no other person than the proprietor of the work can use so as to damage him in his property in it. b Cases of this kind depend rather upon the question whether the defend- ant has a right to sell as his own that in which another has acquired a description of property than on the question of copyright." NOTES BONA FIDE The work or part of the work of another may be made the founda- tion of bona fide notes and observations, and may be published with such notes or observa- tions without infringing the copyright in the original work. "Any person may copy and publish the whole of a literary composition, provided he writes notes upon it so as to pre- sent it to the public connected with matter of his own. d If a man took "Paley's Philoso- phy and copied a whole essay, with observa- tions and notes, or additions at the end of it, it would depend on the facts of whether the publication of that essay was to convey to the COPYRIGHT. public the notes and observations fairly, or only to color the publication of the original essay and make that a pretext for pirating it ; if the latter it could not be sustained. 4 The quantity as well as the character of critical notes added to the work of another is an important element in determining the ques- tion of bona fide notes.* NOTICE. Where the title-page of a book was deposited in 1846, and the notice of the entering inserted in the volume stated it to have been deposited in 1847, even though the error arose from a mistake, it was nevertheless held fatal to the copyright.' OBSCENE, IMMORAL, OR LIBELLOUS WORKS. The author or publisher of a work of libellous or an immoral tendency can have no property in it. Such a work is not the subject of copy- right. They are entitled to no protection whatever, and no action can be maintained for pirating them.* OBSCENE, IMMORAL, AND INDECENT PUBLI- CATIONS, ETC. " Every person who, within the District of Columbia, or any of the territories of the United States, or other place within the exclusive jurisdiction of the United States, sells, or lends, or gives away, or in any man- ner exhibits, or offers to sell, or to lend, or to give away, or in any manner to exhibit, or otherwise publishes or offers to publish in any manner, or has in his possession for any such purpose, any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image, on or of paper or other material, or any cast, instrument, or other article of an immoral nature, or any drug or medicine, or any article whatever for the prevention of conception, or for causing unlawful abortion, or who advertises the same for sale, or writes or prints, or causes to be written or printed, any card, circular, book, pamphlet, advertise- ment or notice of any kind, stating when, where, how, or of whom, or by what means any of the articles in this section hereinbefore mentioned can be purchased or obtained, or manufactures, draws or prints, or in any wise makes any of such articles, shall be imprisoned at hard labor in the penitentiary for not less than six months, nor more than five years for each offence, or fined not less than one hundred dollars, nor more than two thousand dollars, with costs of court." 11 "No obscene, lewd, or lascivious book, pam- phlet, paper, picture, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of 'onception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any l-4 Esp. 169: see 3 M. & Cr. 711, 728. e-n Sim. 31. f-2 Blatchf. 82. g-7 D. & R. 625 ; 5 B. & C. 173 : 2 C. & P. 163 : 7 Ves. i ; 2 Merriv. 435 : n Beav. 117, 119 ; L. R. 2 Ch App. iio ; 16 L. T. (N. S.) 130; 36 L. J. 4^8 Ch. : L. R. 6 Eq. 561 : 19 L. T. (N. S.) 6s : 37 L. j 889 Ch. : Jacob 471. li-Laws U. S. 1873, March 3, Vol. 17, Ch. 258, \ l, p. 8: Rev. 1873-4, 2 5389- written or printed card, circular, book, pam phlet, advertisement, or notice of any kind giving information, directly or indirectly, when or how, or of whom, or by what means, either of the things before mentioned may be obtained or made ; nor any letter upon the envelope of which, or postal card upon which indecent or scurrilous epithets may be written or printed shall be carried in the mail ; and any person who shall knowingly deposit, or cause to be deposited for mailing or delivery, any of the hereinbefore mentioned articles or things, or any notice or paper containing any advertise- ment relating to the aforesaid articles or things, and any person who, in pursuance of any plan or scheme for disposing of any of the herein- before mentioned articles or things, shall take or cause to be taken from the mail any such letter or package, shall be deemed guilty of a misdemeanor, and shall, for every offence, be fined not less than one hundred dollars, nor more than five thousand dollars, or imprisoned at hard labor not less than one year, nor more than ten years, or both." l " All persons are prohibited from importing into the United States from any foreign coun- try any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image, on or of paper or other material, or any cast, instru- ment, or other article of an immoral nature, or any drug or medicine, or any article whatever for the prevention of conception, or for causing unlawful abortion," etc. (providing mode of proceedings against, for seizure, forfeiture, and destruction of same, etc.}f " Whoever, being an officer, agent, or em- ploy of the government of the United States shall knowingly aid or abet any person engaged in any 'violation of any of the provisions of law prohibiting importing, advertising, dealing in, exhibiting, or sending or receiving by mail, obscene or indecent publications or representa- tions, or menns for preventing conception or procuring abortion, or other articles of indecent or immoral use or tendency, shall be deemed guilty of a misdemeanor, and shall, for every offence be punishable by a fine of not less than one hundred dollars, and not more than five thousand, or by imprisonment at hard labor for not less than one year, nor more than ten, or both." k The test of obscenity is, " Whether the in- tention and tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into those whose hands a publication of the sort may fall. 1 This test unmodified would sweep away such works as Shakespeare, Jon- son, Beaumont, Fletcher, Chaucer, Dryden, Modified by last Congress. 1-Laws U. S. 1873, March 3, Vol 17. Ch. 158, 3 2, p. 599; Rev. 1873-4, \ 3893. |-Laws U. S. 1857, March 2, Vol. 11, Ch. 63, p. 168: Laws 1873, Vol. 17, Ch. 258, % i, 3, 5, pp. 598, 599; Rev. 1873-4, title 33, {$ 2491, 2492; Sprague, 467. k-Laws U. S. 1873, March 3, Vol. 7, Ch. 258, ? 4, p. 509 ; Rev. 1873-4, title 19, \ 1785. 1-L. Rep, 32, B. 371 ; 18 L. T. (N. S.) 398 ; 36 L. J. 9, 8 M. C. 4 io COPYRIGHT. Byron, D Foe, Smollett, Fielding, and others, in whose works such tares are accessories which form the great contrasts and effects in- tended by these writers, and which, separated by themselves, could not be tolerated. ORIGINALITY. The law will secure to a man the property in every genuine product of his own mental labor, whether that product takes the form of a compilation, abridgment, new arrangement, or wholly original work if indeed there can be any such thing as a wholly original work. " In truth, in literature, in science, and in art there are and can be few, if any, things which in an abstract sense are strictly new and original throughout. Every book in literature, science, and art borrows, and must necessarily borrow and use much which was well known and used before ; no man creates a new language for himself, at least if he be a wise man, in writing a book ; he contents himself with the use of language already known, and used and understood by others. The thoughts of every man are more or less a combination of what other men have thought and expressed, although they may be modified, excelled, or improved by his own genius or reflection. If no book could be the subject of copyright which was not new and original in the elements of which it is com- posed, there could be no ground for copyright in modern times ; and we should be obliged to ascend very high even in antiquity to find a work entitled to such eminence." 111 The test of originality is " whether the claimant's book contains any substantive pro- duct of his own labor."" To constitute one an author he must, by his own intellectual labor, applied to the materials of his composition, produce an arrangement or compilation new in itself. In the case 'of sub- jects open to all, the work of the author must not be copied, but recourse must be had to the original sources.? One who gets another, or others, to compile a work or engrave a print is not entitled to copyright.*! The utmost that the law can do is to require and insist that the secondary author shall have exercised original labor in devising the plan, selection, arrangement, and presentation of the materials which he has found in niedio (com- mon to all) and open to all. It will not be sufficient on the one hand that he has bestowed upon his work the manual labor of copying or clipping the material ; nor will it be necessary on the other, that he has used such judgment in discovering the wants of the public, and such skill as to have produced a really valu- able book ; the product of actual mental labor, whether valuable or worthless, will be pro- tected by law. r A judicious, careful, and useful arrangement m-3 Story. 770. See also i Id. 16. n-Curtis Copy- right, 171, 172; 5 Ves. 23, i East. 358 ; 8 Ves. 221 ; 16 Id 269 ; L. R. i Eq. 702 ; 14 L. T. (N. S. ) 222 ; 35 L. J. 423; 14 W. 496; 3 K. & J. 708. 0-2 Blatchf. 46; see above. |-2 Paine C. C. 400, 401 ; 3 Story, 781 ; i Id. 17. q-t Woodb. & Min. 46 ; 2 Blatchf. 46. r-i Morgan, 316, of old and well-known material may be pro duced by original labor, and, if so, will be en- titled to protection.* But though any person may thus acquire a copyright in his own ar- rangement of common materials, the materials themselves remain, as always, open to the next comer who chooses to have recourse to them, and different copyrights may be acquired in different arrangements of the same common materials. These different arrangements must, however, be independent. A later arrange- ment must not be a servile imitation or repro- duction of an earlier one.* PARTS OF WORKS. Where the parts of a work can be separated, there may be a copy- right in any distinct part of it." PARTS AND EXTRACTS OF A WORK. That part of the work of one author is found in another is not of itself piracy, or sufficient to support an action ; but the extracts may be too many, or contain too large or important a por- tion of the work from which they are made ; then they will amount to piracy, even though they were published in the form of quotations, and the source from which they were taken is expressly declared.* See QUOTATIONS, below. PERIODICALS. Copyright in periodical pub- lications may be infringed in the same manner as in the case of other literary works ; but this species of property may also be infringed in a manner peculiar to itself. Even when the copyright in contributions to encyclopaedias, reviews, magazines, and other periodicals is vested in the proprietors of such encyclopaedias, etc., the right of publishing his contribution in a separate form reverts to the author twenty- eight years fiom the first publication, and the proprietor cannot, during the term of his own copyright, publish it in a separate form without the previous consent of the author or his as- signs." A republication in supplemental num- bers of a selection of various tales previously published in that periodical is an infringe- ment. 1 The author has a modified property in pos- session, and the sole property in reversion. PHOTOGRAPHING. Making an unauthorized photograph of the engraving of a picture is a photographing or copying of the picture itself. If the design is copied, it is immaterial whether it 'is done directly from the original, or indi- rectly through the medium of a copy.' It would be otherwise if the owner had parted with the right to multiply engravings. 1 PIANO SCORES of operas are independent musical compositions, specific, separate, and distinct from operas themselves. It requires time, reflection, skill, and mind, so to con- dense the opera score as to compose the piano- 3iso, citing Curtis Copyright, 172. s-2 Blatchf. 39. t-i Morgan, 344, g 169, and notes. n-L. Rep. 6 Eq. 418. V-See 10 Jur. 420; L Rep. -\ Eq. 718; 16 L. T. (N.S., 51. w-See 16 Sim. 190 ; i J. & H . 312 ; 3 L. T. (N. S.) 466; 9 Sc. Sess. Cas. 1026; 13 Id 219. x-4 Giff. 632 ; 6 L. T. (N. S.) 437; 33 L. J. 137, Ch. y-? B. & S- 395, 401. Z-Id. COPYRIGHT. forte accompaniment.* Whether a piano-forte arrangement of the score of an opera, executed without the consent of the composer of the opera, would be an infringement of his copy- right therein has not been expressly decided. b PIRACY IN GENERAL. If so much is taken as to impair the value of the original work, or so that the labors of the original 'author are substantially appropriated, this will constitute a piracy. But the question of piracy does not depend solely upon quantity. 3 Intention is not a necessary element in the offence of piracy. Jf a copyright has been invaded, whether the party knew the work was copyrighted or not, he is liable to the penalty for violation there- of.' The inquiry in most cases is not whether the defendant has used thoughts, conception, information, and discoveries promulgated by the original, but whether his composition may be considered a new work, requiring inven- tion, learning, and judgment, or only a mere transcript of the whole or parts of the original, with mere colorable variations/ PLAN OR METHOD. There can be no copy- right of a mere plan or method of a work, dis- tinct from the work itself, any more than there can be copyright of an abstract idea. " QUOTATION is necessary for reviewing ; the quotation for such a purpose is not to have the appellation of piracy affixed to it, but quo- tation may be carried to the extent of mani- festing piratical intention." h "A reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reason- able criticism. On the other hand, it is as clear that if he thus cites the most important parts of the work with a view not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy. A wide interval might, of course, exist between these two ex- tremes, calling for great caution and involving great difficulty." 1 See PARTS AND EXTRACTS, ETC., above. RECEIPT BOOKS. The composing receipts, or arranging them in a book, will give a copy- right to the compiler. But the mere collecting them and handing them over to the publisher will not. Nor will the mere copying that which is public property. But if there be some new arrangement or classification of the subject, or the copy be not identical, and not a mere colorable variation,J then a copyright may exist for it. k RECORD. Care should be taken that the copyright record is accurate, for an error in it will be a fatal defect in the author or proprie- tor's copyright. a-L. Rep. 2 Q. B. 358 ; 15 L. T. (N. S.) 53 ; 36 L- I. 103, Q. B. ; 15 Wood. 309. b-L. Rep. 2 Q. B. 350, V54 ; i Y. & C. 288 ; 18 L. T. (N. S.) 108; L. Rep. 3 Q. B. 223: 37 L. J. 84, Q. B. ; 16 Wood. 485. c-2 Story, 115 d-4 McLean, 309, 310. e-i West. L. J. 240. f-2 Wall. C. C. 547; S. C. 2 Am. L. Reg. 231. g-4 McLean, 316. h-2 Russ. 393; i Campb. 97; 3 REMEDIES UNDER THE COPYRIGHT ACT. Jurisdiction. Sec. 4970. The circuit courts, and district courts having the jurisdiction of circuit courts, shall have power, upon bill in equity, filed by any party aggrieved, to grant injunctions to pre- vent the violation of any right secured by the laws respecting copyrights, according to the course and principles of courts of equity, on such terms as the court may deem reasonable. 1 The jurisdiction given the federal court by the acts of Congress has not taken away or diminished the original jurisdiction which be- fore such acts m the state courts exercised ; ex- cept when the jurisdiction was made exclusive in express terms, or by the necessary construc- tion of the constitution. 11 Limitation. Sec. 4968. No action shall be main- tained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen. Pleading: and Evidence. Sec. 4969. In all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence P COPYRIGHT PLEADINGS Under the Statute. Title of Action or Suit. In the Circuit Court of the United States. Fifth Circuit, Southern District of Alabama. A D \ ' [ Complaint (declaration, or petition). c' S i) f I n f r * n 6 ement f copyright. Said A. B. (in person, or by A. A., his attorney) respectfully represents (or alleges, and complains) as follows: ANOTHER. In the Circuit {or District ) Court of the United States. For the Middle District of Tennessee. A D \ * ( ' I Complaint (declaration, or petition) CD i Infringement of copyright. Said A. B., etc (as above). ANOTHER. United States Circuit Court. 'Western District of Virginia. Etc. , etc. (as above). Complaint, Declaration, or Petition. For Infringement General furtii. ( Title, as above.) I. Said A. B., etc. (as above). II. That said A. B. is a citizen of the United States. Or, That said A. B is a resident of the United States. III. That he is the (author, or designer or) pro- prietor of a book (or other article, describing it) en- titled (here copy the title or description as contained in the book, etc., and certificate of copyright). Or, That he is the (author, or designer and) proprietor of a map, chart, dramatic or musical com- Jur. 218 ; 8 L. J. 216 Ch. ; 10 Jur. 421 ; 1 1 Sim. 580 ; a Swanst. 428; Ambl. 402, 405. i-2 Slory, 106. J-2 Sim. & Siu. i. li-4 Bing. 234. 1-Laws U. S. 1870. July 8, Vol. 16, Cli. 230, \ 106 ; p. 215 ; Rev. 1873-4, Tille 60, Ch. 3, 4710. 111-2 Woodb. & Win. 43-45. 11-4 Dtier. 382. 0-ld. ? 104; Rev. 7873-74; Id. J 4968. p-U. J 105; Rev. 1873-4; Id. J 4969. 412 COPYRIGHT. position, engraving, cut, print, photo- graph or negative thereof, or painting, draw- ing, chromo, statue, statuary, or- model or design intended to be perfected as work of the fine arts), described as follows: (here copy the de- it riff ion as contained in the certificate of copyright ), and further described by a photograph thereof, which is hereunto attached, marked " Exhibit A," and made a part hereof. IV. That on the day of , and before publication, said A. B. did deliver at the office of the librarian of Congress (or deposit in the mail ad- dressed to the librarian of Congress, at Washington, District of Columbia), a printed copy of the title of said book (or other article, describing it), or a de- scription of said painting, (drawing, chromo, statue, statuary, or model, or design for a work of the fine arts). T. That on the day of , and within ten days from the publication thereof, said A. B. did deliver at the office of the librarian of Congress (or deposit in the mail addressed to the librarian of Congress, at Washington, District of Columbia), two copies of such copyright book (or other article, de- scribing it, as above), (or in case of a. fainting, draw- ing, statue, statuary, model or design for a work of the fine arts, a photograph of the same). TI. That on the day of the librarian of Congress did record the name, description, and title of said copyright book (or other article, nam- ing ft), in conformity with the laws of the United States respecting copyrights, a certificate of which recording is hereunto attached, marked "Exhibit B," and made a part hereof. Til. That on the day of , and thereafter, he did give notice of his said copyright {if it be a book, say, by inserting in the several copies of every edition published, on [the page immediately following]) the title-page thereof the following words, viz.: (If a map, chart, must'cat* composition, print, cut, tngraving, photograph, painting, drawing, chroma, statue, statuary, or model or design intended to be perfected and completed as a tuork of the fine arts, say) by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz.: " Entered according to act of Congress, in the year , by A. B., in the office of th Li- brarian of Congress, at Washington;" (or" Copy- right, 18 , by A. B.") When the Infringement Is by Import- ing:, Printing, or Publishing a Book, Continue a* follows : VIII. That said C. D., on the day of , and after the recording of the title of said book as aforesaid, did, within the term limited by law, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, pub- lish (or import), (or knowing the same to be so printed, published_, or imported), sell and expose to sale copies of such book. That by reason of the premises said A. B. has been prevented selling copies of said book, and his profits in said copyright has been dimin- ished dollars. IX. Said A. B. therefore prays judgment: That said C. D. shall render an account of all printing, publishing, and importation of said book from unto , etc., etc. That said C. D. shall forfeit and deliver forth- with every copy thereof, so printed, published, and imported, etc., unto him, the said A. B. That said C. D. shall also forfeit and pay unto him, the said A. B., dollars damages. That said C. D. be henceforth enjoined and re- strained from printing, publishing, and import- ing said book, and from committing any further, or other similar, injuries relating to said ropy- right. That said C. D. be awarded his costs herein taxed at dollars, etc. (And any further relief.) (Signed) A. B. A. A., Plaintiff"! (Declarant's or Petitioner's) Attorney. When tlio Infringement is by En- graving, Etching, Working. Copying, Printing, Publishing, or Importing, Either in Whole or in Part, or by Varying, etc., Selling and Exposing to Sale, etc., etc., continue as follows, according to the facts: VIII. That said C. D., on the day of , and after the recording of the title of said map (chart, musical composition, print, cut, engraving, photo- graph, or chromo ; or description of any painting, draw- ing, statue, statuary; or model or design intended to be perfected and executed as a work of the fine arts), as provided by law, did, within the term limited, and without the consent of said proprietor of said copyright first obtained in writing, signed in presence of two or more witnesses, engrave, (etch, work, copy, print, publish, or import , (either in whole or in part, or by varying the main design with intent to evade the law) or, knowing the same to be so printed, published, (or im- ported), sell and expose to sale copies of such map (or other article), as aforesaid. That sheets of said map (etc.) was, on the day of , found in the possession of said C. D., of which was printing. was printed. was copied. was published. was imported. was exposed for sale. ( In case of a painting, statue, or statuary, say ) That copies of said was found in the possession of said C. D. That copies of said was sold by said C. D. That copies of said was exposed for sale by said C. D. IX. Said A. B. therefore prays judgment: That said C. D. shall forfeit unto him, the said A. B.,all the plates upon which said map shall be copied, and every sheet thereof, either copied or printed. That said C.D. shall further forfeit unto him, the said A. B. , one dollar for every sheet of the same found in his possession, printing, printed, copied, published, imported, and exposed for sale, as aforesaid. (In case of a painting, statue, or statuary, say .) That said C. D. shall forfeit ten dollars for every copy of the same in his possession, and by him sold and exposed for sale ; one-half thereof to said A. B., and the other half to the use of the United States. (Signed) A. B. A. A., Plaintiff ' s (Declarant's or Petitioner' s) Attorney. Complaint, Declaration, or Petition. Infringement Upon Dramatic Composition. ( Title and introduction as above.) That A. B. is a citizen (or resident) of the United States. That A. B. was, on the day of , has ever since been, and now is, proprietor of a subsisting copyright of a dramatic composition entitled (describe title as in the certificate of copyright}, a cer- tificate of which is hereunto attached, marked exhibit "A.," and made a part hereof. That on the iay of C. D. did publicly perform and reprf :nt said dramatic composition without the cons t of said proprietor thereof, or his heirs or assig ;. That said A. was thereby deprived of the profits and bene :s of said performance and rep- resentation, to ' s damage dollars. Wherefore sa A. B. demands judgment in the sum of dol' :s damages, etc. Complaint Declaration, or Petition. Infringement Upon Manuscript. ( Title and introduction as abo~>e.) That A. B. is a citizen (or a resident) of the United States. That said A. B. is the author (or proprietor) of the following manuscript (describing it), of the value of dollars. a- Dramatic compositions are not Included in this sec- tion. COPYRIGHT. That C. D. , on the day of , did print and publish said manuscript without the consent of said author (or proprietor) first obtained. That by reason of the premises said A. B. has been prevented from the publication and sale of said work, and his profits in the same have been entirely destroyed. Wherefore he prays judgment for the sum of dollars, etc. For other precedents in copyright pleading, see Shorn. App. 723, et sea., citing, in relation to Books Copies of, Bullen and Leake's Precedents, 207 ; Books Selling Copies of, Id. Id. : Song, 4 D. & L. 147; 18 C. B. 194; 25. L. J. 22, C P.; portions of periodicals, 16 C. H. 159 ; musical composition, 4 Ho. L. Cas. 815 : 4 L. J.,8i Exch ; $C B86o; 4 Exch. 145; 2 B. & C. 861 : 12 C. B. 177 . 18 C. B. 197 ; prints by photog- raphy, 16 L. T. (N.S.)98; L. Rep. 2 C. P. 410; 36 L. J. 139, C. P. ; prints from spurious plates, 29 L. J., 98 Exch.; sH.&N. 5. Plea General Issue. (Title as above.) A - B )plea. CD I General Issue - Said C. D. (in person, or by A. Y., his attorney) says that he is not guilty. Under the general issue the defendant may prove : " That , and not the plaintiff, was author of said book." " That the plaintiff was not the proprietor of the said copyright, as alleged." "That said copyright was not a subsisting copyright, as alleged (at the time of the alleged grievances)." " That the plaintiff did not give notice of his copyright in said book, by inserting in the several copies of every edition published the notice re- quired by law." " That said plaintiff did not give notice of his copyright in said map, etc., by inscribing upon some visible portion thereof, or of the substance on which the same was mounted, the notice re- quired by law." " That the plaintiff was not the proprietor of, nor had he tnc sole liberty of representing (and performing) or causing to be represented (and per- formed) the dramatic (or musical) composition, as alleged." " That the alleged musical composition was part of a dramatic piece, to wit: , adapted to the stage by the defendant, with the aid of sce- nery, dresses, and alleged composition, and other music and accompaniments, the general design of whicn representation was formed by the de- fendant." " That the defendant employed the plaintiff, for a reward, to compose said musical composition, as a part of the said representation and dramatic piece, and as a mere accessory to the same, on the terms: that in consideration of said reward, said musical composition should become part of said dramatic piece, as designed and adapted for representation by said defendant, and that said de- fendant should have the sole liberty of represent- ing and performing, and causing and permitting to be represented and performed, the said musical composition with said dramatic piece, and as an accessory thereto, and a part thereof." For other and similar precedents in pleas see Shortt. App. 730, et seq., citing in relation to musical composi- tions ai, accessories, 29 L. J.2o, C. P. ; 7 C. B. (N. S.) 268. REQUISITES OF A VALID COPY- RIGHT. 1. Parties Entitled to Copyright. Sec. 4952. Any citizen of the United States, or resident therein, who shall be the author, inventor, designer or proprie- tor of any (i) book, (2) map, (3) chart, r-Laws U.S. 1870, July 8, Vol. 16, Ch. 230, \ 86, p. 212; Rev. 1873-4, Title 60, Ch. 3, g 4952, citing 8 Pet. 591 ; 14 How. 528 ; I Blatchf. 625 ; 5 Id. 87, 325, 362 ; 6 (4-5) dramatic or musical composition, (6) engraving, (7) cut, (8) print, (9-10) photograph or negative thereof, or of a (ii) painting, (12) drawing, (13) rhromo, (14) statue, (15) statuary, and of (16 models, or (17) designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person, shall, upon comply- ing with the provisions of this chapter, have the sole liberty of printing, reprint- ing, publishing, completing, copying, ex- ecuting, finishing, and vending the same ; and, in the case of a dramatic composi tion, of publicly performing or representing it, or causing it to be performed or represented by others. r And authors may reserve the right to dramatize or translate their own works.* In the construction of this act, the words " ENGRAVING," " CUT," and " PRINT," shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be regis- tered in the Patent Office. And the commis- sioner of patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for re- cording the title of any print or label, not a trade-mark, six dollars, which shall cover the expense of furnishing a copy of the record, under the seal of the commissioner of patents, to the party entering the same. 1 Assignee. See PROPRIETORS, below. Author, Designer, Inventor. See AUTHOR, ante. An American author residing abroad is en- titled to copyright. See INVENTOR, below. Book. A " book," within the statute, need not be a volume made up of many sheets bound together. It may consist of a single sheet or page of character, as, for instance, the words of a song, or the music accompany- ing a song. " Book " is a general name given to every literary composition which is printed. Citizens are those under the constitution and laws of the United States who have a right to vote for representatives in Congress and other public officers, and who are qualified to fill offices in the gift of the people. Any person born in the United States, or naturalized person born out of the same, who has not lost his right as such including men, women, and children. The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.' A citizen of the United States residing in Td 256. s-Id. t-Laws U.S. 1874, app. June 1 8, took effect August i, Vul. 18, Ch. 301, 2 3, p. 79; Stnre *. Schwdler, 4 Blatchf. 1857 ; 2 Id. 83 : 5 Id. 323, 362. U-i Morgan, 222, J 255. V-Const. U. S. Art. 4, \ . COPYRIGHT. any of the States of the Union is a citizen of that State." As to citizenship of children born in foreign lands to citizens.* Construction is not " SHAPE." " Design," when used as a term of art, means the giving of a visible form to the con- ceptions of the mind, or, in other words, to the ' invention.' See PATENTS, ETC., post. "Inventor" is one who finds out some- thing new. One who contrives, or discovers, or produces a thing which did not before exist. See AUTHOR, above. "Map," "Chart." The words "Map" and "Chart " are to be understood as applying to a particular map or chart copyrighted, since the natural objects from which maps and charts are made are open to all. 1 Proprietors are owners. Under derivation of title from non-resident authors, or the as- signee of a work composed by a non-resident alien, they cannot obtain a copyright therefor." The legal assignee of the resident author may take out the copyright, and it will make no difference whether he holds it as trustee for the benefit of another or not. b Resident is one who has his residence in a place. Residence is personal presence in a fixed and permanent abode. Residence dif- fers from domicil, although it is a great mat- ter of importance in determining the place of domicil . d A person, to be entitled to copyrignt as a "resident" under the corresponding sections of previous copyright laws, and by inference under the present, must be a permanent resi- dent of this country. One temporarily resid- ing here, it seems, even though he has declared his intention of becoming a citizen, cannot take or hold a copyright.' See ASSIGNEES. Trustee. See PROPRIETOR, above. 2. How to Obtain Copyrights. Sec. 4956. No person shall be entitled to a copyright unless he shall, i, before publication, deliver at the office of the libra- rian of Congress, or deposit in the mail ad- dressed to the librarian of Congress, at Wash- ington, District of Columbia, a printed copy of the title of the book or other article. The title-page must be deposited before publication of the book, in order to entitle the copyright to protection/ and the record from the proper office, made in the prescribed form, is prima facie evidence of the deposit.* Or a descrip- tion of the painting, drawing, chromo, statue, statuary, or model or design for a work of the fine arts. In case of a painting, statue, model, w-6 Pet. 761 : Paine C. C. 594 : * Brock. C. C. 391 ; i Paige, Ch. 183. X-See 10 Rich. Eq. 38 ; and ice 26 Barb. 383 : o Md. 74 : J Story Const. 1687 ; 2 Kent Comm. 258 : Bouv. Inst. Vattel, I, I C. 19, jj 212. y-4 Wash. 52 -2 Paine C. C. 400. 401. a-9 Am. L. Keg. 45. b-a Blatchf. 366. C-zo Johns. 208 ; i Met. Man. 251. U-See 13 Mass, joi ; 5 Pick. 370; i Met. or design intended to be protected as a work of the fine arts, the description provided for in this section must be definite and complete, and the photograph must be at least as large as what is technically known as cabinet size, h for which he desires a copyright. (By taking this incipient step a right is acquired which chancery will protect until the other acts may be done. 1 And if the title-page has been duly entered, the au- thor may maintain an action for infringement if the printed copies were never deposited, and even if the work was never published at alU) Nbr unless he shall also, 2, within ten days from the publication thereof, deliver at the office of the librarian of Congress, or deposit in the mail addressed to the libra- rian of Congress, at Washington, District of Columbia, two copies of such copyright book or other article, or, in case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of the same. k The process of copyrighting must be gone through with in the case of every volume of a work separately. 1 Communication to librarian of Con- gress, Accompanying 1 Titles or !>- scriptioiis. Place , Date . Librarian of Congress, at 'Washington, District of Columbia: Enclosed find for deposit in your office a printed copy (each) of the title (or description) of a book (m;ip, chart, or other ivork), the right whereof A. B. claims as author (originator, or proprietor), in con- formity with the laws of the United States re- specting copyrights. Also find dollars and cents, the same being 500. each for recording the same. Also find dollars and cents, for a copy of the following of said titles (or descriptions), under your official seal, viz. : No. . A. B., Author (or Proprietor). Postmaster's Receipt for Titles. Sec. 4961. The postmaster to whom such copyright book, title, or other article is delivered, shall, if requested, give a receipt therefor ; and when so delivered he shall mail it to its destination. Post Office. Date . Received this day, from , one package copy- right matter for transmission by mail, addressed to Librarian of Congress, Washington, D. C. Mr. . Per D. Y. Another No. . Post Office. On this day of . ' ( A printed copy (each) of the title of a book (map, chart, or other work), the title of which is in the fcH lowing words : (setting out the title page in full), and dollars and cents, fees of the librarian of Congress, for recording the same, were deposited in the M. mail, in a package, on the outside of which the words "copyright matter" were (Mass.) 251; 2 Gray, 49: 19 Wend, n; n La. 173; 5 Me. 143. See 2 Kent Comm. loth ed. 574 n., 576; 19 Me. 203. O-i Morgan, 245, ? 245 , citing 26 Niles Reg. 262. 1-2 Klatchf. 84. ff-3 Monthly L. Rep 401 ; * Hlatchf. 84. h-2 Morgan 233, 258. 1-5 McLean, i32 J-'3 M. L. Rep. 401 ; contra, i Am. L. Reg. 33. k-Id. 3 90 ; Rev. 1873-4 ; Id. 1 495- I-a Morgan, 232, I 258. in-Id. ?, 96, Rev. 1873-4 ; Id. 496'- COPYRIGHT. plainly Written, and which was addressed, " Li- brarian of Congress, at Washington, District of Columbia." P. M., No. . Postmaster. Librarian of Congress' Receipt of Title*, Etc. [z.. .] Library of Congress. Washington, . Sir: In reply to your communication of , I have to advise you that $ in copyright fees is received, and titles accompanying duly en- tered. Very respectfully, L. C. , Librarian of Congress. Sec. 4959. The proprietor of every copy- right book or other article shall deliver at the office of the librarian of Congress, or deposit in the mail addressed to the librarian of Congress, at Washington, District of Columbia, within ten days after its publication, two complete printed copies thereof, of the best edition issued, or description or photograph of such article as hereinbefore required, and a copy of every subsequent edition wherein any substan- tial changes shall be made.'" Sec. 4960. For every failure on the part of the proprietor of any copyright to de- liver, or deposit in the mail, either of the published copies, or description, or pho- tograph, required by Sections 4956 and 49-9, the proprietor of the copyright shall be liable to a penalty of twenty-five dollars, to be recovered by the librarian of Congress, in the name of the United States, in an action in the nature of an action of debt, in any district cou r t of the United States within the jurisdiction of which the delinquent may reside or be found." Communication to Librarian of Con- gress, Accompanying Two Complete C'ojues, etc. Librarian of Congress, at Washington, Dis- trict of Columbia: Enclosed please find for deposit in your office two complete copies of the best edition of a book (map, chart, or other -work), the right whereof A. B. claims as author (originator, or proprietor), in conformity with the laws of the United States respecting copyrights. Also find dollars and cents for a copy of the following of the titles (or descriptions) of said book (map, chart, or other work), under your official seal, viz. A. B., Author (or Proprietor). Postmaster's Receipt for Two Com- plete Copies, etc. No. . Post Office. On the day of , two complete copies each of said book (map, chart, or other -work) of the best edition issued were deposited in the M. mail, in a package, on the outside of which the words " copyright matter " were plainly written, and which was addressed, " Librarian of Con- gress, at Washington, District of Columbia." P. M., Postmaster, librarian of Congress' Receipt of Two Complete Copies, etc. [L. s.] Library of Congress. Washington, . A. B. . The undersigned hereby acknowledges the re- ceipt o two copies of , transmitted to the Library of Congress in conformity with the laws uf the United States respecting copyrights. Very respectfully, L. C. Librarian of Congress ni-Id. ? 93 : Rev. 1873-4: Id. ? 4950. n-Id. \ 94, Rev. 1873-4 ; Id. { 4960. O-ld. 82 ; Ker. 1873-4 ; Id. I 27 " Sec. 4958. The Librarian of Congress shall receive from the persons to whom the services designated are rendered the following fees : " I. For recording the title or description of any copyright book or other article, fifty cents. " 2. For every copy under seal of such record actually given to the person claiming the copy- right, or his assigns, fifty cents. " 3. For recording and certifying any instru- ment of writing for the assignment of a copy- right, one dollar. "4. For every copy of an assignment, one dollar. "All fees so received shall be paid into the treasury of the United States." Sec. 4957. The librarian of Congress shall record the name of such copyright book, or other article, forthwith in a book to be kept for that purpose, in the words following: " Library of Congress, to wit: Be it remembered that on the day of , , A. B., of , hath deposited in this office the title of a book (map, chart, or otherwise, as the case may be, or description of the article), the title or description of which is in the following words, to wit : (here insert the title or descrip* tion), the right whereof he claims as author (originator, or proprietor, as the case may be), in conformity with the laws of the United States respecting copyrights. C. D., Librarian of Congress." And he shall give a copy of the title or description, under the seal of the libra- rian of Congress, to the proprietor whenever he shall require it.' The requirements of sections 4956, 4957, 4958, must be strictly complied with to secure a copyright.i Certified Copy of Title or Description Under Seal, etc. [L. s.] Library of Congress. No. C. Copyright Office, Washington. To wit : Be it remembered : That on the day of , A. D. , A. B., of , hath deposited in this office the title of a book (map, chart, or otherwise, as the case may be, or description Wowl. 381 ; 6 L. T. (N. S.) 34- -* J"r. l &- *- to compete with the edition he has sold, but is bound to afford the publisher a full opportu- nity of realizing the benefit of his contract.* THE STATUTE OF FRAUDS applies to con- tracts between authors and publishers in the preparation or publication of literary matter. TERM OF COPYRIGHT, 28 TEARS. Sec. 4953. Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereo f in the manner hereinafter directed. 4 Continuance of 14 Tears. Sec. 4954. The author, inventor, or de- signer, if he be still living and a citizen of the United States or resident therein, 01 his widow or children if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or de- scription of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first term. And such persons shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one of more newspapers, printed in the United States, for the space of four weeks." The taking out of a second term of a copy- right is not like the strengthening of a defec- tive title, but rather like a new interest ob- tained after the general interest has expired.* The extension provided for applies exclusively to the author, his widow or children." An assignee alone cannot take out a second or extended term unless he has clearly and unequivocally contracted and paid for it, and is entitled to be protected in it in equity rather than according to any mere technical rule of law. h TITLE. There cannot be what is termed copyright in a single word, although the word should be used as a fitting title for a book. 1 The copyright contemplated by the act must be, not in a single word, but in some words in the shape of a volume, or part of a volume which is communicated to the public, by which the public are benefited, and in return for which a certain protection is given to the author of the work. Nor will any amount of expenditure incurred upon a work not yet given to the world, or any outlay in advertise- ments of the title of the work, give a right to an injunction restraining another person from using the same title.J But though two period- icals or books may have a similar title, the form, title, and mode of publication of one cannot be imitated by another in such a man- ner as would necessarily mislead the public 5 Jur. 68; n Sim. 572. C-4 Scotts. X. R. 77; 3 M. 8t Gr. 452; i Singh. 9; i Campb. 513; . M. & W. 633; ii East. 142. d-Laws U. S. 1870, July b, Vol. 16, Ch. 230, '4 87, p. 212 ; Rev. 1873-4, Title l.X, Ch. 3, } 4953, C-ld. j!88; Rev. 1873-4, Id. 3 4054, citing 8 Pet. 591; 2 Woo 3 i ; 36 L. J. 433 Ch, COPYRIGHT CORPORATIONS. 47 and induce them to purchase the latter work as continuing parts of the former one.* Fake and Pretentious Titles. Publica- tions whose titles, advertisements, and preten- sions are calculated to deceive the public are not entitled to any protection. By this is meant works which are subversive of good order, morality, or religion. Indeed, it would be unjust, where literary productions are en- tirely innocent, harmless, and permissible, to deprive the author of a nom-de-plume whereby to conceal his name, if he from modesty or for the success of his work desired to do so. In 1 such a case there is no serious design to de- ceive the purchaser or prevent an interposition to suppress any evil tendency the work may effect. TRANSFER OF COPYRIGHT. Copyright may be transferred by writing or parol in the same manner as other personal property. In the latter case, in order to be binding in law, it must be recorded in the office from whence the copyright issues. 1 TRANSLATIONS into English, German, or any other tongue, of works published in other languages, if original, are entitled to copyright. If a foreign work is not protected by inter- national copyright it is open to any one to translate it, but a translation already existing is the product of the translator's mental labor, and his property in it must not be infringed. Independent recourse must be had by subse- quent translators to the common original source. "A man has a right to a copyright in a transla- tion upon which he has bestowed his time and labor. To be sure another man has an equal right to translate the original work, and to publish his translation, but then it must be his own translation, by his own skill and labor, and not the mere use and publication of the translation made by another." 01 If a foreigner translates an English copyright work, and then a subject or resident retrans- lates that foreign work into English, this last would be an infringement of the original copy- right, and it would be no defence that the re- translator was not aware that the work he translated was itself a translation from an Eng- lish work." A translation is not a copy of a book within the meaning of the statute. The words " copy of a book " mean a transcript or copy of the entire book.? UNPUBLISHED WORKS. Every new and in- nocent product of mental labor which has been 'embodied in writing or some other material form becomes the exclusive property of its author. Whether the ideas thus published take the shape of written manuscripts of literary, dra- matic, or musical composition, or designs for works of ornament or utility planned by the k-8 Ves. 215. 1-4 Campb. 8 ; a M. & S 7:26. & C 861 ; 6 C. B. 456 ; i J. & N. 481 ; Sc. Sess. Cas. (N. S.)8; 18 Id. 906. in-s Story, 780. ii-j Drew, 353; ML. J. 457, Ch. 0-2 Am. L. Keg. 230. p-i2 Monthly L. Rep. 340, 341. q-4 Burr. 2378; 13 Jur. 112; i Moc. & Gr. 42 ; 18 L. J. 126 Ch. ; 4 McLean, 301 ; 3 Barb. Ch. 323; 8 Pet. 657. See 2 DeG. & S. 696; 13 JUT. 58 ; M. & G. 43 ; 18 L. J. 126 Ch. ; 13 Jur. 112 ; mind of the artist, they are equally inviolable while they remain unpublished, and the author possesses an absolute right to publish them or not as he thinks fit, and to hinder their publi- cation, either in whole or in part, by any one else.' For this exclusive property in the un- published products of his mental labors, the author is not indebted to the copyright laws ; his right is independent of statute, and depends entirely on the common law right of property. The sale by the author of several thousand copies of a musical composition in the manu- script did not defeat the author's right to a copyright.' The mere parting with the possession of manuscript, or intrusting its possession to an- other person, or a permission to another to take and keep a copy of the manuscript, does not authorize its publication by that other person. 1 An author's rights concerning unpublished manuscripts do not depend wholly upon the common law. They are the subject of stat- utory regulation. See INFRINGEMENT, ETC. WILL. The proprietor of a copyright may transfer it by last will and testament. In the absence of such will it passes in the same manner as other personal property.' Corn. See EMBLKMENTS. Coroner. See OFFICE AND OFFICERS. Corporal. See MILITARY LAW. Corporal Oath. See PRACTICE. Corporal Touch. See PRACTICE; ARREST. CORPORATIONS. See titles BAILMENTS; BONDS; NOTES AND BILLS. A. CORPORATION is a body consisting of one or more natural persons, established by law, usually for some specific purpose, and con- tinued by a succession of members. It is this last characteristic of a corporation, prolonging its existence beyond the term of natural life, and thereby enabling a long continued effort and concentration of means to the end which it was designed to answer, that constitutes its principal utility. A corporation is modelled upon a state or nation, and to this day is called a body politic as well as corporate thereby in- dicating its origin and derivation. Aggregate corporations are those which are composed of two or more members at the same time. Sole corporations are those which by law consist of but one member at any one time. Civil corporations are those which are created to facilitate the transaction of business. Ec- clesiastical corporations are those which are created to secure the public worship of God." Eleemosynary corporations are those which are created for the purpose of charities ; as schools, hospitals, for the relief of the impotent, sick, deaf and dumb, and the hke. T Lay corpora- tions are those which exist for secular purposes.* 4 Burr. 2329, 2330, 2386 ; i Jac. & W. 481 ; Ambl. 694; 2 B. & C. 861. r-a B. & AW. 298. 8-Story Eq. Jur. 943 ; 4 McLean, 300,303; 5 Id. 41 ; 4 Burr. 2330; 2 Eden. 329 ; 2 Merriv. 435. t-Godson, 168. u-Ang. & A. Corp. $36,37; ' Bl. Comm. 470; 2 Kent Comm, 274. v- Ang. & A Corp. 30 ; i Kyd Corp. 26 ; 4 Cain. 272 ; 3 niund. Ch 401 ; i Ld Raym. 52; T. R. ^46; 4 Wheat Oii. w-Ang. & A. Corp. 28-30, i Sharsw. Bl. Com. 47* CORPORATIONS. Moneyed corporations are those having the power to make loans upon pledges or deposits, etc., in- surance and the like. 4 Municipal corporations are public corporations created by government for political purposes, and having subordinate and local powers of legislation ; for example : boroughs, cities, counties, districts, parishes, towns, townships, elc. e It is an incorporation of persons, inhabitants of a particular place, or connected with a particular district, enabling them to conduct its local civil government.' Private corporations are those which are created wholly, or in part, for purposes of private emol- ument.' Public corporations are those which are exclusively instruments of the public inter- est." By both civil and common law, the sovereign authority only can create a corporation ; a cor- poration by prescription, or so old that the license or charter which created it is lost, being presumed, from the long-continued exercise of corporate powers, to have been entitled to their sovereign grant. Corporations are created by legislative enactment of a State, or the Con- gress of the United States. 1 All corporations, of whatever kind, are moulded and controlled, both as to what they may do and the manner in which they may do it ; by their charters, or acts of incorporation, which to them are the laws of their being, which they can neither dis- pense with nor alter. Subject, however, to such limitations as these, or general statute or con- stitutional law, may impose, every corporation aggregate has, by virtue of incorporation and as incidental thereto : 1. The power of perpetual succession, in- cluding the admission, and, except in the case of mere stock corporations, the removal, for cause, of members. 2. The power to sue and be sued, to grant and receive grants, and to do all acts which it may do at all in its corporate name. 3. To purchase, receive, and hold lands and other property, and to transmit them in succes- sion. 4. To have a common seal ; to make, break, alter, and renew it at pleasure. 5. To make by-laws for its government, so that they may be consistent with its charter and the law. Indeed a corporation may, within the limits of its charter, or act of incorporation, express or implied, lawfully do all acts and en- ter into all contracts that a natural or individual person may do, or enter into, so that the same be appropriate as means to the end for which the corporation was created. A corporation may be dissolved, if of limited duration, by the expiration of the term of its existence fixed by charier or general law ; by the loss of all its members, or of an integral cts of Congress enacted in conformity thereto, the constitution of the State in which a cor- poration is located, and acts of the legislature uiacted in conformity thereto, together with the common law as therein accepted, are of -.uperior force to any by-law ; and any by-law contrary to either of them is void, whether the iharter authorizes the making of such by-law or not, for no legislature can grant power greater than they themselves possess.' CAPITAL STOCK is not only the sum divided into shares and raised by mutual sub- scription of the members of a corporation, but nlso the sum upon which calls may be made upon the stockholders and dividends are to be paid." It is the capital of the corpoiation. It is entered in the proper books in the name of the person owning it, and can only be trans- ferred by such person or his attorney. Certifi- cates are issued to the person to whom it is transferred; and when a new transfer is effected, such certificate surrendered and cancelled, a new one being issued to the transferree. Some- times it is sold by delivering the certificate ac- companied by a power of attorney to transfer it, but such a sale is merely an equitable assignment. 1 Bonds are transferable by de- livery, and are payable to bearer. Stock held by individuals in corporation, whether States, municipal, or private, is personal property.* Stock issued by an agent of a company tran- scending his authority, as in case of over issue, is not binding on a corporation or company.* CARRIERS; COMMON CARRIERS; COMMON CARRIERS OF TASSENGERS. See title BAIL- MENTS, ante. CHARTER. ALTERATION AND REPEAL. See INTRODUCTION, above. COMMON SEAL. The ancient and r-Dougl. 149; 2 Binn. 448. -Co. Litt. 250 a: Ay- liffe Partn. 196; Angel! Corp. 6. t-2 Kyd Corp. 107; i P. Wms. 207; Angell Corp. 177. n-i Harris & J. 519; 4 Burr. 2515, 2521 ; 6 Krown Part. Cas. 519. v-7 Cow. 585,604; 5 Id. 538. w-i Sandf. Ch. 280; Wai- ford Rlys. 2S2 . 4 Zabr. 195- Angell & A. Corp. ? 151, 5$*. *.- Wheat. JQJ; I Pet. 299; jo 14. 616; see technical rule of the common law that a cor- poration cannot manifest its intention by any personal act or oral discourse, and that it acts and speaks only by its common seal, is no longer law in the United States.' COMPANY properly is an association of a number of individuals for the purpose of carry- ing on some legitimate business. Company is not partnership, usage reserving the term to associations whose members are in greater number, with greater capital and greater enter- prise. When such a company is authorized by the State or general government it becomes a corporation. DIRECTORS are appointed or elected according to law to direct and manage the affairs of a corporation or company. Collec- tively they form a board of directors. To make a legal board of directors they must meet at a time when and a place where every other director has the opportunity of attending to consult and be consulted with; and there must be a sufficient number present to constitute a quorum. 1 * The acts of such a board evidenced by a legal vote are as binding upon the corpora- tion, and as complete authority to their agents, as the most solemn acts done under their cor- porate seal." Directors are generally invested with certain powers by the acts of the legislature to which they owe their existence. In corporations created by statutes it is generally contemplated by the charter that the business of the corpora- tion shall be transacted exclusively by the directors. 3 Directors of a corporation are trustees, and as such are required to use due diligence and attention to its concerns, and are bound to a faithful discharge of the duty which the situ- ation imposes. They are liable to the stock- holders whenever there has been gross negli- gence or fraud, but not for unintentional errors. 8 See GENERAL STATUTES. DlSFRANCHlSEMENT is the depriv- ing a member of a corporation of his right as such, by expulsion/ It differs from amotion, which applies to the removal of an officer from office, leaving him his rights as a member.* DISSOLUTION. See INTRODUCTION, above. DIVIDEND is that part of the principal or profits divided among the members ot stockholders of a corporation, or to its creditors upon bankruptcy, dissolution, or insolvency. EXPULSION. Corporations have an in- herent right of expulsion : I. Where an offence has been committed which has no immediate relation to a member's corporate duty, but is of so infamous a nature as to render him unfit fox the society of honest men, as perjury, forgery, 1 Monr. 126. y-4 Dane Abr. 670; 6 Cush. 282; Ang. & A. Corp. g 560. z-i3 N. Y. 599; 17 Id. 592. -7 Cranch. 299; 9 Paige Ch. 188; 21 Vt. 343 ; 21 Mist. 408; i Smith (Ind.) 98; 6 Ga. 166: 2 Kent Comm. 289. l-3 La. 574; 6 Id. 759; 13 Id. 527. c-8 Wheat. 357, 3=8. l-2 Caines, 361. e-i Edw. 01.513; 8 Martin (N. S.1 80; 3 La. 575. f-i Bouv. Inst. n. 198. jf-Will, cuck Corp. n. 703; Aug. & A. Corp. 237. 420 CORPORATIONS. and the like. But before an expulsion is made for a cause of this kind it is necessary that there should he a previous conviction by a jury, according to the law of the land. 2. When the offence is against his duty as a corporator, in which case he may be expelled, on trial and conviction before the corporation. 3. When the offence is both against the member's duty at a corporator and also indictable. 11 Members of joint stock, incorporated com- panies, or of any corporation owning property, cannot, without express authority in the char- ter, be expelled, and thus deprived of their interest in the general fund. 1 MANAGERS. See DIRECTORS, above. NAME. Corporations must, in general, contract, sue and be sued, by their corporate names.J Yet a slight alteration in stating the name is unimportant, even if there be no possi- bility of mistaking the identity of the corpora- tion suing.* NUMBER. When a corporation is com- posed of an indefinite number of persons, any number of them consisting of a majority of those present may do any act, unless it be otherwise regulated by the charter or by-laws. POWERS. See INTRODUCTION, above. PREDECESSORS in a corporation stand in the same relation to the successor that the ancestor does to the heir. PRESIDENT. The president of a cor- poration usually directs the mode in which business is to be transacted; from his decision there is an appeal to the body over which he presides. QUASI CORPORATIONS are those bodies or municipal societies which, though not vested with the general powers of corporations, are yet recognized by statute or immemorial usage as persons or aggregate corporation with precise duties which may be enforced, and privi- leges which may be maintained in actions and suits at taw. They possess limited powers co- extensive with the duties imposed upon them by statute and usage, but are restrained from a general use of authority. Among quasi corpo- rations may be ranked towns, townships, par- ishes, hundreds, and other political divisions of counties, which are established without an express charter of incorporation ; also commis- sioners of a county, supervisors of highways, overseers of the poor, loan officers of the county, and the like, who are invested with corporate powers, sub modo, and for a few specified purposes only ; but not such a body as the general assembly of the Presbyterian church, which has not the capacity to sue and be sued. 1 QUORUM is the number required to trans- act business. There is a difference between an act done by a definite number of persons and ta-2 Binn. 448. 1-Ang. & A. Corp. 238. J-8 Johns. 795; 14 Id. 238; 19 Id. 300; 4 Rand. 359. fc-i2 La. 144 ; see 20 Me. 41 ; * Va. Ca*. 362 ; 16 Mass. 141 : 12 S & R 389. 1-4 Whart. 53. See 2 Kent. Comm. 224 ; Ang. & A. Corp. 16; 18 Johns. 422 : i Cow. 258, and hng, 68a; a Wend. 10^; a Johns. 325; 2 Pick 352; 7 one performed by an indefinite number. In the first case a majority is required to constitute a quorum, unless the law expressly directs that another number may make one. In the latter case any number who may be present may act, the majority of those present having, as in other cases, the right to act. Sometimes the law requires a greater number than a bare majority to form a quorum. In such case no quotum is present until such a number con- vene. SCRIP. The possession of scrip certificates is prima facie evidence of ownership of the shares therein designated." Such certificates are not goods, wares or merchandise within the statute of frauds. SHARES. See CAPITAL STOCK, above. STOCK. See CAPITAL STOCK, above. ULTRA VIRES are those acts beyond the scope of the powers of a corporation as defined by the charter or acts of incorporation. As a general rule, such acts are void, and impose no obligation upon the corporation, al- though they assume the form of contracts, inas- much as all persons dealing with a corpora- tion, especially where it is created by the laws of the State or country where it exists, of which every one is presumed to have notice and information. It is otherwise as to laws imposing restraints upon it not contained in its charter, where the contract is made or the transaction takes place without the limits of the State or county under whose laws the corpora- tion exists.? If, however, a corporation re- ceives money or other valuable consideration under such a transaction or contract, upon rescinding or repudiating the act or contract under which it was paid or delivered, it could be recovered back by action or suit for that purpose.' So, too, the corporation is liable to be proceeded against by quo -warranto, for the usurpation of powers in its name by its officers and agents, and deprived of its charter as a penalty for such acts; the defence of a want of power to bind the- corporation not being avail- able in such cases, since it would lead to entire corporate irresponsibility.' A court of equity, at the suit of the stock- holders of the corporation, will restrain the commission of acts beyond the corporate power, by injunction operating upon the indi- vidual officers and directors, as well as the corporation.* But acquiescence for any con- siderable time in the exercise of excessive powers after they come to the knowledge of the stockholders, would be a decisive objection to such a remedy. 1 Corporeal Hereditaments. See HEREDI- TAMENTS ; PROPERTY. Corpus Delicti. See CRIMINAL LAW. Miss. 187; 9 Id. 250; 13 Id. 192; i Me. 363. m-7 Cow. 402 : 9 B. & C. 648 ; Ang. & A. Corp. 8i. l- Addison Contr. 203.* 0-16 M. & W. 66. p-8 Barb. 233- Q-22 N. Y. 25 ; 14 Penn. St. 81. r-7 Wend. 31 ; i Blackf. 267. s-Redfield Rlys. 400, \ 4 ; 4 Rly. Cas. 513; 6 Id. 289; 10 Bt.iv, Rolls, i; la Id. 339. 4-19 En ? . L. & Eq. 7, DAMAGES. 421 Correction. See MARRIAGE ; MILITARY LAW ; ittnOML 'orrespondeiice. See COPYIGHT LETTERS, KTC. Corruption. See CRIMINAL LAW. Costs. See PRACTICE. Council. See GOVERNMENT; OFFICE AND OFFI- CERS. Counsel. See AGENCY ; ATTORNEYS. Counsellor at Law. See AGENCY ; ATTORNEYS. Count. See PLEADING. Counter Affidavit. See AFFIDAVITS. County. See CORPORATIONS. Course. See BOUNDARIES ; REAL PROPERTY. Course of Trade. See CONTRACTS ; CUSTOM. Court. See PRACTICE. Cousin. See PERSONS. Covenants. See CONVEYANCES. Covenants Performed. See PLEADING. Coverture. See MARRIAGE. Cow. See ANIMALS. Cowardice. See MILITARY LAW. Credentials. See INTERNATIONAL LAW. Credibility, Credible Witness. See Evi- BENCE. Creek. See MARITIME LAW ; REAL PROPERTY. Crim. Con. See CRIMINAL LAW. Crime. See CRIMINAL LAW. Criminal Law. See LAW, Subdiv. " Criminal Law." Criminals. See CRIMINAL LAW. Criticism. See COPYRIGHT, " Extracts." Crop. See EMBLEMENTS. Cross. See SIGNATURE. Cross Action. See EQUITY ; PRACTICE, Cross Bill. See PRACTICE. Cross Examination. See EVIDENCE. Cruelty. See ANIMALS. Cruise. See MARITIME LAW. Clicking 1 Stool. See PERSONS ; SCOLD ; WOMEN. Culprit. See CRIMINAL LAW; PRISONER. Cnrtesy. See ESTATE. Curtilage. See REAL PROPERTY. Custom. See CONTRACTS ; USAGE. Custom oT Merchants. See BONDS, NOTES, AND BILLS: MERCANTILE LAW. Custom House. See GOVERNMENT. Customs. See GOVERNMENT. Cy Pres. See CONVEYANCES ; WILLS. Dam. See REAL PROPERTY ; WATER. DAMAGES. See titles AGENCY; BAILMENTS; BONDS, NOTES, AND BILLS ; CONTRACTS, ETC., ETC. DAMAGES is the indemnity recoverable by a person who has sustained an injury, either in his person, property, or relative rights, through the act or default of another. The sum claimed as such indemnity by a plaintiff in his complaint. The injury or loss for which compensation is sought. Actual damages are those awarded for a loss or injury actually sustained; in contra-distinc- tion from damages implied by law, and from those awarded by way of punishment. Com- pensator)' damages are those allowed as a rec- ompense for the injury actually received. Con- sequential damages are those which, though directly, are not immediately consequent upon the act or default complained of. Exemplary damages are damages allowed as a punishment for torts committed with fraud, actual malice, or deliberate violence, or oppression. General damages are those which necessarily, and by implication of law, result from the act or de- fault complained of. Liquidated damages are -IT Johns. 130; a Texas, 460; n Pick. 527; 15 Ohio, 726-3 Sumn. C. C. 192 ; 4 Mass. C. C. 115. b- t Greenl. Ev. \ 256 ; Sedgwick Dam. c. 3. 0-17 Pick. 78; 3 Texas, 324: 13 Ala. (N. S.) 490; 28 Me. 161 ; 2 Wu. 417; Sneed 5'5; 4 Blackf. 277 ; 6 Q. B. 028. 4-4 Jones, 163; i Smith L CM. loa-fo^. e-i C. $ P. damages whose amount has been determined by anticipatory agreement between the parties. Measure of damages is a rule or method by which the damage sustained is to be estimated or measured. Nominal damages are a trifling sum awarded where a breach of duty, or an infrac- tion of the plaintiff's right is shown, but n serious loss is proved to have been sustained. Punitive damages are exemplary damages. Spe- cial damages are such as arise directly, but not necessarily, or by implication of law, from the act or default complained of. For further def- inition see subsequent sections of this subject. Unliquidated damages are damages whose amount has not been determined. To constitute a right to recover damages, the party claiming damages must have sustained a loss ; the party against whom they are claimed must be chargeable with a wrong ; the loss must be the natural and proximate consequence of the wrong. There is no right to damages, properly so called, where there is no loss. Damages are based on the idea of a loss to be compensated, a damage to be made good.' This loss, however, need not always be distinct and definite, capable of exact description, or of measurements in dollars and cents. A sufficient loss to sustain an action may appear from the mere nature of the case itself. The loss must be the natural and proximate consequence of the wrong. 6 Or, the " direct and necessary," or, " legal and natural " conse- quence. It must not be " remote " or " conse- quential." The loss must be the natural con- sequence. Every man is expected and may justly be to foresee the usual and natural con- sequences of his acts, and for these he may justly be held accountable ; but not for conse- quences that could not have been foreseen. It must also be the proximate consequence. Vague and indefinite results, remote and con- sequential, and, thus, uncertain, are not em- braced in the compensation given by damages. It cannot be certainly known that they are at- tributable to the wrong, or whether they are not rather connected with other causes." 1 In an action for damages for an injury caused by negligence, the plaintiff must himself appear to have been free from fault ; for, if his own negligence in any way contributed directly to produce the injury, he can recover nothing. The law will not attempt to apportion the loss according to the different degrees of negligence of the two parties." Judicial officers are not liable in damages for erroneous decisions. When a servant is injured through the neglic gence of a fellow-servant employed in the sam enterprise or avocation, the common employer is not liable for damages. The servant in en- gaging, takes the risk of injury from the peg. ligence of his fellow-servants. f But this rule 181; it East. 60; 7 Me. 51 ; i Iowa, 407; 17 Pick. 284; a Met. (Mass.) 615 : 3 Barb. 49 ; 14 Ohio, 364 ; 3 La. An. 441; Sedgw. Dam. 468. f-4 Met. (Mass.) 49; 4 La. An. 495; 23 Penn. St. 384; 5 N. Y. 493; 15 Gv 349; 15 111. 550; 20 Ohio, 415; 3 Ohio St. 201; 5 fcxch. 343. 422 DAMAGES. does not exonerate the master from liability of negligence of a servant in a different employ- ment. There is no right to damages where there is no wrong. It is not necessary that there should be a tort, strictly so called a wilful wrong, an act involving moral guilt. The wrong may be either a wilful, malicious injury, or one com- mitted through mere motives of interest, as in many cases of conversion of goods, trespasses n land, etc. ; or, it may consist of a mere neg- lect to discharge a duty, with suitable skill or fidelity, as where an officer is held liable for the escape of his prisoner, or a carrier for neg- lect to deliver goods ; or a simple breach of contract, as in case of refusal to deliver goods sold, or to perform services under an agree- ment ; or it may be a wrong of another person for whose act or default a legal liability exists, as where a master is held liable for an injury done by his servant, or apprentice, or a railroad company for an accident resulting from the neg- ligence of their engineer. But there must be something which the law recognizes as a wrong, some breach of a legal duty, some violation of legal right, some default or neglect, some fail- ure in responsibility, sustained by the parly claiming damages. For the sufferer by acci- dent, or by the innocent or rightful acts of an- other, cannot claim indemnity for his misfor- tune; it is called damnum absque injuria (a loss without a wrong), for which the law gives no remedy.* The obligation violated must also be one owed to the plaintiff. The neglect of a duty which the plaintiff had no legal right to enforce gives no claim to damages. Thus, where the postmaster of Rochester, New York, was required by law to publish lists of letters uncalled for in the newspaper having the largest circulation, and the proprietors of the " Roches- ter Daily Democrat" claimed to have the larg- est circulation, and to be entitled to the adver- tising, but the postmaster refused to give it to them, it was held that no action would lie against him for the loss of the profits of the ad- vertising. The duty to publish in the paper having the largest circulation was a duty not owed to the publisher of that paper. It was imposed upon the postmaster, not for the bene- fit of publishers of newspapers, but for the ad- vantage of persons to whom letters were ad- dressed, and they alone had a legal interest to enforce it. h ASSESSMENT of damages is made by Ihe court through its proper officer or clerk, where it is a mere matter of calculation ; in other cases it must be done by the jury. DAMAGE PEASANT are those injuries committed by animals belonging to one person upon the land of another, by feeding, treading IC-is Ohio, 659; ii Pick. 1,27: ii M. & W. 755; 10 Met. (Mass.) 371; 13 Wend. 261. li-n Barb. 135; see also 17 Wend. 554; n Pick 526. i-3 Bl. Comm 6; Co. Litt. 142, 161 ; Com. Dig PI (3 M 26.) J-ig Barb. 461 ; 9 Cu&h. 228 ; 16 B. Mon. 577 ; 22 Conn. 74 ; 27 Miss. 68 ; 10 Ga. 37 ; 20 Id. 428 ; 6 Rich. 419 : i Cal. 33,363; j Id. 410; i Gratt. 697. k-Se 3 Abb. Pr. down the grass, corn, or other productions of the soil. 1 DOUBLE OR TREBLE damages are in some cases allowed by statute. In the* cases the actual damage is doubled or trebled, and not assessed like double or treble costs. EXCESSIVE OR INADEQUATE. Even in that large class of cases in which there is no fixed measure of damages, but they are left to the discretion of the jury, the court has a certain power to review the verdict, and to set it aside if the damages awarded are grossly excessive or unreasonably inadequate. The rule is, however, that a verdict will not be set aside for excessive damages unless the amount is so large as to satisfy the court that the jury have been misled by passion, prejudice, ignorance, or partiality.'' But this power is very sparingly used ; and cases are numerous in which the courts have expressed themselves dissatisfied with the verdict, but have refused to interfere on the ground that the case did not come within this rule. k As a general rule, in actions of tort the court will 'not grant a new trial on the ground of the smallness of dam- ages. 1 But they have power to do so in a proper case; and in a few instances in which the jury have given no redress at all, when some was clearly due, the verdict has been set aside." In cases where there is a fixed legal rule regulating the measure of damages, it must be stated to the jury upon the trial. The failure to state it correctly is ground of exception. And if the jury disregard the instructions of the court on the subject, their verdict may be set aside. In so far, however, as the verdict is an honest determination of the questions of fae t properly within this province, it will not, in general, be disturbed. EXEMPLARY. In actions for torts, strictly so called, where gross fraud or actual malice, or deliberate vio- lence, or oppression appears, the jury are not confined to a strict compensation for the plain- tiff's loss, but may, in assessing damages, allosv a sum as a punishment of the defendant for his wrong committed upon the plaintiff. Such an allowance is termed " smart money," or "exemplary," "vindictive," or "punitive" damages. They are assessed in one sum, with any allowance the jury may think proper lo make as compensation for the actual loss sus- tained; and the whole sum is awarded to the injured party. The propriety of allowing damages to be given by way of punishment under any cir- cumstances has been strenuously denied in many cases, and the question has given rise to extensive discussion ; but the weight of author- 104 ; 5 Id. 272 : 22 Barb. 87 : 20 Mo. 272 ; 15 Ark. 345 . 6 Texas, 352; q Id. ao; 16 111. 405; Cowp. 230; 2 Story C. C. 661 ; 3 Id. i ; i Zab. 183 ; 5 Mass. C. C. 197. I- 1 Cal. 450 ; 2 E. D. Smith, 349 ; 4 O. B. 917. 111-12 Mod. 150; i Str. 940; 24 Eng. L. & Eq. Circumstance* must show that the jury have acted under an improper motive n-Sedgw. Dam. 604. DAMAGES. 423 ity is decidedly that such allowance in a suit- able case is proper. But they should be care- fully denied whenever the defendant is crimin- ally liable to punishment for the wrong dune, hy indictment and fine, or otherwise. P ' LIQUIDATED. Where there is an agree- ment between the parties for the doing or not doing particular acts, the parties may, if they please, estimate beforehand the damages to re- sult from a breach of the agreement, and pre- scribe in the agreement itself the sum to be paid by either by way of damages for such breach.' The sum named in an agreement as damages to be paid in case of a breach will, in general, be considered as liquidated damages, or as a penalty, according to the intent of the parties. The mere use of the words " penalty " or 1 liquidated damages " will not be decisive of the question if, on the whole, the instrument discloses a different intent. 1 Such a stipulation in agreement will be con- sidered as a penalty merely, and not as liqui- dated damages, in the following cases : Where the parties in the agreement have expressly de- clared it, or described it as a " penalty," and no other intent is deducible from the instru- ment ; where it is doubtful on the language of the instrument whether the stipulation was in- tended as a penalty or as liquidated damages ; l where the agreement was evidently made for the attainment of another object or purpose, to which the stipulation is wholly collateral ; u where the agreement imposes several distinct duties or obligations of different degrees of importance, and yet the same sum is named as damages for a breach of either indifferently ; T where the agreement is not under seal, and the damages are capable of being certainly known and estimated ; w where the instrument provides that a larger sum shall be paid, upon default to pay a lesser sum in the manner pre- scribed. 1 The stipulation will be sustained as liqui- dated damages in the following cases : Where O-To trace the discussion on this subject consult 13 Ala. (N. S.)49: 27 Id. 678; 28 Id. 236; 15 Ark. 452; 3 Day, 477; 6' Conn. 508; 7 Id. 274; 10 Id. 384; 15 Id. 225, 267 : 4 111. 373 ; 7 Id. 432 ; 16 Id. 283 ; 5 Ind. 322 ; 13 B. Mon. 219; 17 Id. lot; 2 Mart. 257; 7 La. An. i n.uu. r v. *oy ,iji. i .__._, -,- , ^ -,_,- , -- Id. 356: Busb. 395; 6 W. & S. 150: s Watts, 375; 20 Pcnn. St. 85, 354 ; 23 Id. 424, 523 : 3 Strobh. 425; 4 Id. 74 : 8 Rich. 144 ; 2 Sneed, 456 ; 2 Texas, 460 ; 5 Id. 141 ; 9 Id. 358; 12 Id. 297: 3 Wis. 424; 4 Id. 67; i Cranch. C. C/iS?: i Wash. C. C. 152: Wall. Jr. C. C. 164; 2 enl. Ev. J 523; i Kent Comm. (icth Ed.) 630, 'ush. 273 ; 5 Ind. 322 ; but compare 6 Texas, II. |*-4 v. UMI. 273 ; 5 i uu. 322 ; IMIL njuiparc u Texas, 266; i Cal 54: 18 Mo. 71 ; i Abb. Pr. 289; Duer, 247, J3M.&W. 47; 5 Taunt. 442; 2 Stark, 282; i Murr. S. C. 15, 3'7, 428. q-i H. Bl. 232 : 2 B. & P. 335, 350; 2 Brown Par). Cas. 431 ; 4 Burr. 2225; 2 T. R. 32. r- Story Eq. Jur. 1318; 6 B. & C. 224; 6 Bingh. 141; 6 Ired. 186; 15 Me. 273: 2 Ala (N. S.) 425; 8 Mo. 467. g- B. & P. 340, 350, 360; i H. Bl. 227; i Camp. 78; the agreement is of such a nature that the damages are uncertain, and are not capable of being ascertained by any satisfactory and known rule ;* where, from the tenor of the agreement, or from the nature of the case, it appears that the parties have ascertained the amount of damages by fair calculation and adjustment. 1 MEASURE OF. BILLS OF EXCHANGE AND PROMISSORY NOTES.* See GENERAL STATUTES. CARRIERS. Upon a total failure to deliver goods, the carrier is liable for the value of the goods at their place of destination, with inter- est, deducting the freight. 1 * Upon a failure to take the goods at all for transportation, he is liable for the difference between the value at the place of shipmerrt and at the place of desti- nation, less his freight; or, if another convey- ance can be found, the difference between the freight agreed on with the defendant, and the sum (if greater) which the shipper would be compelled to pay another carrier. Upon a delay to deliver the goods, the plaintiff is en- titled to an indemnity for his loss incurred by the delay, taking into account any fall in the market occurring between the time when the property should have been delivered by the carrier, and the time when it actually vas. d See title BAILMENTS, ante. CONTRACTS. Where a contract prescribes : price to be paid, the compensation recoverable for a part performance will be measured by the contract price if practicable, and not by the actual value of the services or goods, etc., furnished. Where a vender of real property fails to con- vey according to his contract, a distinction is taken, in many cases, growing out of the mo- tive of the party in default. If he acted in good faith and supposed he had good title and could convey, the purchaser's damages have been limited to the amount of his advance, if any, interest and expenses of examining the title.* But in case of a wilful and fraudulent refusal to convev, the purchaser has been held 7 Wheat. 14; i McMull. 106; 2 Ala. (N. S.) 425; 5 Met. (Mass.) 61 ; i Pick. 451 ; 4 Id. 179; 3 Johns. Cas. 297: 17 Barb. 260; 24 Vt. 97. t-3 C. & P. 240; 6 Humph. 186; 5 Sandf. 192; 24 Vt. 97; 16 111. 475. u-ir Mass. 488: 1 5 Id. 488; i Brown Ch. 418. v-6 Bingh. 141 : 5 Bingh. (N. C.;3Oo; 7 Scott, 364; 5 Sandf. 192; but see 7johns.72; 15 Id. 200; 9 N. Y. 551. w-2 Barn. & A1J. 704; 6 Barn. & C. 216; i M. & M. 41; 4 Dall. 150: 5 Cow. 144. x-5 Sandf. 192, 640; 16 111. 400; 14 Ar!.. 329. y-2 T. R. 32 ; i Ale. & N. Ir. 389 : 2 Burr. 2225 : 10 Ves. Ch. 479; 3 M. & W. 535; 3 C. & P. 240:" 8 Mass. 223 ; 7 Cow. 307 ; 4 Wend. 468 ; 5 Sandf. 192 : i Barb. 137, 366; 18 Id. 336; 14 Ark. 315 ; 2 Ohio St. 5;-.. Z-2 Story Eq. Jur. \ 1318; 2 Greenl. Ev. 259; i Btagh. 302; 7 Conn. 291; ii N. H. 234; 6 Blackf. 206; 1-5 Wend. 507; 17 Id. 447; 22 Id. 201; 26 Id. 630; 10 Mass. 459; 7 Met. (Mass.) 583; 2 Ala. (N. S.)425; 14 Me. 250. -See title " BONDS, NOTES, AND BILLS," and GENERAL STATUTES, b-12 S. & R. 186; 8 Johns. 215 ; 10 Id. i; 14 Id. 170; 15 Id. 24; 14 III. 146; 24 N. H. 297; i Cal. 108; 10 La. An. 412; 5 Rich. 462; 9 Id. 465; 17 Mass. 62. c-io Watts, 418; 4 N. Y. 340; i Abb. Adm. 119. d-i2 N. Y. 509; 22 Barb. 278: but see 19 Barb. 36. e-2 W. Bl. 1078; 10 B. & C. 416; 86 B. 133; 2 Wend. 399; 4 Denio, 546; 6 Barb. 646; 20 N. Y. 140; a Bibb. 415; i Liu. 358; 9' Md. 250; it Penn, St. 127. 424 DAMAGES. entitled to the value of the land with inter- est/ SALES. Where the sell-r of chattels fails to perform his agreement, the measure of dam- ages is the difference between the contract price and the market value of the article at the time and place fixed for delivery.* The same rule applies as to the deficiency where there is a part delivery only. h Where, however, the purchaser has paid the price in advance, the purchaser is allowed the highest market price up to the time of the trial. Where the pur- chaser refuses to take and pay for the goods, the seller may sell them fairly, and charge the buyer with the difference between the contract price and the best market price obtainable within a reasonable time after the refusal. Where the goods are delivered and received, but do not correspond in quality with a war- ranty given, the vendee may recover the differ- ence between the value of the goods delivered find the value they would have had if they had corresponded with the contract. See GENERAL STATUTES. MITIGATION of damages is often effected by matters which are no answer to the action itself, but which may often be given in evidence to reduce or diminish the amount of the pen- alty or punishment. NOMINAL. Whenever any act injures another's right, and would be evidence in future in favor of a wrong-doer, an action may be obtained for an invasion of the right with- out proof of any specific injury. 1 And when- ever the breach of an agreement, or the inva- sion of a right, is established, the law infers some damage, and, if none is shown, will award a trifling sum ; as, a penny, one cent, six and a quarter cents, etc.! Thus, such dam- ages may be awarded in actions for flowing lands ; k injuries to commons ' trespass to lands ; m neglect of official duties, in some cases;" breach of contract ; and in many other cases where the effect of the suit will be to determine a right.? SMART MONEY. See EXCESSIVE, EXEM- PLARY, OR INADEQUATE DAMAGES, above. UNLIQUIDATED DAMAGES. See LIQUIDATED DAMAGES, above. Date. See TIME. Daughter. See DESCENDANTS. Daughter-in-Law. See DESCENDANTS. Day. See TIME. Day-Book. See ACCOUNTS. Days of Grace. See BONDS, NOTES, AND BILLS. De Bene Ease. See PRACTICE. De Facto. See PRACTICE. De Jure. See PRACTICE. De Novo. See PRACTICE. Dead Body. See CRIMINAL LAW. Dead Born. See BIRTH ; MEDICAL LAW. Deaf and Dumb. See PERSONS. Deaf, Dumb, and Blind. See PERSONS. f-6 B. & C. 31 ; i Exch. 850 ; 6 Wheat. 100 ; Hardin. 41; 2 Bibb. 40, 434; 9 Leigh, in. g-s N. Y. 537: 12 Id. 41 ; 3 Mich. 55; 6 McLean C. C. 102, 497 ; 4 Texas, 89; 12 111. 184. h-i6 Q. B. 941. i-i Wms. Saund. 346,0; 28 N. H. 438; 13 Conn. 269. J-i 111. 301; 4 Doiiio, 554 ; Sedg. "Dam. 47. k-2 Story C. C. 661 ; i Kawle, 27; 12 Me. 183; 28 N. H. 438. 1-2 East. 154. Itt-M Wud. 188; T*a, 306; see 4 Jone, 130. n- Death. See EVIDENCE : MBDICAL LAW. Deatli-bcd Deed. See CONVEYANCES, "Willi." Deceit. Sec FRAUD. Decision. See PRACTICE. Declaration. See PRACTICE. Declaration of Intention. See ALIBH; PERSONS. Declaration of War. See MILITARY LAW; WAR. Declaratory. See STATUTE LAW. Decree. See PRACTICE. Dedication. See HIGHWAY; REAL PROPERTY. Deduction for New. See MARITIME LAW. Deed. See CONVEYANCES, " Deeds." Deed I'oll. See CONVEYANCES, " Deeds." Defamation. See SLANDER. Defeasance. See CONVEYANCES, "Mortgages." Defect. Sec PLEADING. Defence. See PLEADING; PRACTICE; TORTS. Defendant. See PRACTICE. Defensive War. See MILITARY LAW; WAR. Deficit. See ACCOUNTS. Degrading. SeeSiANDBR. Del Credere Commission. See AGENCY; AGENTS.. Deliberation. See CONTRACTS. Delirium Febrile. See MEDICAL LAW. Delirium Tremens. See MEDICAL LAW. Delivery. See CONVEYANCES, "Deeds;" MBDI- CAL LAW. Delusion. See MEDICAL LAW. Demand. See CONTRACTS; PRACTICE. Dementia. See MEDICAL LAW. Demise. See CONVEYANCES, " Leases." Demurrage. See BAILMENTS. Demnrrer. See PLEADING; PRACTICE. Denial. See PLEADING. Departure. See MERCANTILE LAW; PLEADING. Deposit. See BAILMENTS. Deposition. See EVIDENCE. Deputy. See OFFICE AND OFFICER. Descent. See HEIRS. Description. See CONTRACTS. Desertion. See CRIMINAL LAW; MILITARY LAW. Desertion (of a Seaman). See MARITIME LAW. Designation. See CONTRACTS. Detainer. See PRACTICE; PROPERTY, ETC. Determination. See AUTHORITY. Detinet. See PLEADING. Detinue. See PLEADING. Detinuit. See PLEADING. Deviation. See INSURANCE. Devise. See CONVEYANCES, " Will*.** Devisor. See WILLS. Digest. See COPYRIGHT. Diligence. See ACTS. Dime. See MONEY. Diplomatic Agent. See INTERNATIONAL LAW. Direction. See PRACTICE. Directors. See CORPORATIONS. Disabling Statutes. See STATUTE LAW. Disaflirmance. See CONTRACTS. Discharge. See PRACTICE. Disclaimer. See PLEADING. Discontinuance. See PLEADING ; PRACTICE. Discovery. See PLEADING, PRACTICE. Discredit. See EVIDENCE. Discrepancy. See CONTRACTS ; EVIDENCE. Discretion. See CRIMINAL LAW ; PRACTICE. Dishonor. See BONDS, NOTES, AND BILLS. Disjunctive Allegations. See PLEADING. Disorderly House. See CRIMINAL LAW. Disseizin. See REAL PROPERTY. Dissolution. See CONTRACTS; PARTNERSHIP; PRACTICE. Dissuade. See CRIMINAL LAW. Distress. See PRACTICE. Distribution. See PRACTICE. 5 Met. (Mass.) 517; 12 Id. 535; i Denio, 348; 27 Vt. 563; 23 Id. 306; i2 N. H. 341. o-i Duer, 363; 2 Hill (N. Y.) 644 ; 5 Id. 290, 505 ; 6 Md. 274. p-2 Wils. 414 ; 12 Ad. & E. 488; 2 Scott (N. R.) 390; 13 Conn. 361 ; 20 Mo. 603 ; 28 Me. 505; to Miss. 98; 2 La. An. 907; and see, in explanation and limitation, 10 B. & C. 145; 14 C. B. 595; i Q. B. 636; 18 Id. 253; 33 Vt. 331; i Dutch, 255; 14 B. Mon 330; 5 Ind. 2$o; 6 Rich. ;j. DOMICIL. 425 District. See PRACTICE. rl*t rinjras. See PRACTICE. l>l*liirl)rtn-o. See TORTS. Dividend. See CORPORATIONS. Divisible. See CONTRACTS; AMORTIONMENT ; ENTIRETY. Divorce. See MARRIAGE. Docket. See PRACTICE. Documents. See EVIDENCE. Dollar. See MONEY. Domestics. See PERSONS DOMICIL. See EVIDENCE; DEATH; PRACTICE. DOMICIL is that place where a man has his true, fixed, and permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning.* Domicil may be either national or domestic. 3n deciding the question of national domicil, the point to be determined will be in which of two or more nationalities a man has his domicil. In deciding the matter of domestic Jomicil, the question is, in which subdivision of a nation does a person have his domicil. Thus, whether a person is domiciled in Eng- land or France would be a question of national domicil; whether in Norfolk or Suffolk county a question of domestic domicil. This distinc- tion is to be kept in mind, since the rules for determining the two domicils, though fre- quently, are not necessarily the same. b Legal residence, inhabitability, and domicil are generally used as synonymous ; e but much depends on the connection and purpose. 4 Two things must concur to establish domicil. These two must exist, or must have existed, in com- bination. 8 There must have been an actual residence.' The character of the residence is of no importance ; and if it has once existed, mere temporary absence will not destroy it, however long continued ; h as, in the case of a soldier in the army. 1 And the law favors the presumption of a continuance of domicil.J The original domicil continues till it is fairly changed for another, k and revives with an in- tention to return. 1 This principal of revival, however, does not apply where both domicils are domestic. Mere taking up residence is not sufficient, unless there be an intention to abandon the former domicil ; n nor is intention Il-Lieber Encyc. Am. ; to Mass. 188 ; u La. 175 ; 5 Met. (Mass.) 187; 4 Barb. 505; Wall Jr. C. C. 217; 9 Ired. 99; i Texas, 673; 13 Me. 255; 27 Miss. 704; i Bosw. 673. b-See 2 Kent Comm. 449 ; Story Confl. Laws, \ 39, et seq. : Westlake Priv. Int. L. 15 ; Wheat. 5nt. L. 123, et sey. C-i Bradf. Surr. 70 ; i Harring. $83; i Spence, 328; 2 Rich. 489; 10 N. H. 452; 3 Wash. C. C. 555! IS M. & W. 433; 23 Pick. 170; 5 Met. (Mass.) 298; 4 Barb. 505; 7 Gray, 299. d-i Wend. 43 ; 5 Pick. 231 ; 17 Id. 231 ; is Me. 58. e-8 AU. (N. S.) 159; 4 Barb. 504; 6 How. 163; Story Confl. L. 44: 17 Pick. 231 ; 27 Miss. 704; 15 N. H. 137. f-n La. 175; 5 Met. (Mass.) 587: 20 Johns. 208; 12 La. 190 ; i Binn. 349. g-8 Me. 203 ; i Speer's Eq. 3; 5 Eng. L. & Eq. 52. h-? Clark & F. Ho. L. 842 ; 13 Beav. Rolls, 366 ; 43 Me. 426 : 3 Bradf. Surr. 267 ; 99 Ala. (N. S.) 703 : 4 Texas, 187; 3 Me. 455 ; 8 Id. 103 ; 10 Pick. 79 ; 3 N. H. 123; 3 Wash. C. C. 555. 1- 36 Me. 428; 4 Barb. 522. j-s Ves. Ch. 750; 5 Madd. Ch. 379 ; s Pick. 370 ; i Ashra. 126 ; Wall. jr. C. C. 117; i Bosw. 673; 21 Penn St. 106. R-5 Ves. Ch. 750, 757; s Madd. Ch. 232, 370; 10 Pick. 77. Story Confl. L. 481, a n. ; 8 Ala. (N. S.) 169; 13 Id. 58; 18 Id. 367; 2 Swanst. 932 ; i Texas, 673 ; i Woodb. M. C. C. S; 15 Me. 58; WJ1. Jr. *i; jo N. H. 156. l-i of constituting domicil alone sufficient, unless accompanied by some acts in furtherance of such intention. A subsequent intent may be grafted on a temporary residence.!* Removal to a place with an intention of remaining there for an indefinite period, and as a place of fixed present domicil, constitutes domicil, though there be a floating intention to return.' Both inhabitantcy and intention are to a great extent matters of fact, and may be gathered from slight indications.' The place where a person lives is presumed to be the place of domicil until facts establish the contrary.* Domicil is of three kinds: I, domicil by birth; 2, domicil by choice, and, 3, domicil by operation of law. The place of birth is the domicil by birth, if at that time it is the domi- cil of the parents.* If the parents are on * journey, the actual domici) of the parents will generally be the place of domicil." Children of ambassadors, and children born on seas, take the domicil of their parents.' The domi, cil of an illegitimate child is that of the mother ; w of a legitimate child, that of the father. 1 The domicil by birth of a minor con- tinues to be his domicil till changed.' Dom- icil by choice is that domicil which a person of capacity, of his free will, selects to be such. Residence by constraint, which is involuntary by banishment, arrest, or imprisonment, will not work a change of domicil. 1 Domicil is conferred in many cases by operation of law, either expressly or consequentially. Children born in foreign lands of parents who are at the time citizens of the United States, have theit domicil of birth in the United States.' The domicil of the husband is that of the wife. b A woman on marriage takes the dom- icil of her husband, and the husband, if enti- tled to a divorce, may obtain it, though the wife be actually resident in a foreign State.' But, if entitled to a divorce, the wife may ac- quire a separate domicil, which may be in the same jurisdiction The domicil of a widow remains that of her deceased husband until she makes a change. d The domicil of the ward Curt. Eccl. 856; 19 Wend, u ; 8 Cranch, 278; 3 C. Rob. Adm. 12; 3 Wheat. 14; 8 Ala. (N. S.) 159; 3 Rawle, 312; i Gall. C. C. 275; 4 Mass. C. C. 308; t Wend. 134. ltl-5 Madd. Ch. 379 ; Am. L. Cas. 714. n-i Speer's, i; 6 M. & W. 511; 5 Me. 143; loMass. 488; i Curt. Eccl. 856; 4 Cal. 175; a Ohio, 232; 5 S.indf. 44. O-5 Pick. 370; i Bosw. 673; 5 Md. 186. j-2 C. Rob. Adm. 322. q-z B. & P. 228 ; 3 Hag?. Eccl. 374. r-i7 Pick. 231 ; 4 Cush. 190; i Met. (Mass.U -42; 5 Id. 587; i Sneed, 63. 8-2 B. & P. 228 n. : 1 Kent Comm. 532. t-Story Confl. L. g 46 ; 2 Hagg. Eccl. 405; 5 Texas, 211. See 10 Rich. 38. 0-5 Ves. Ch. 750; Westl. Priv. Int. L. 17. V-Story Confl. L. J 48. w-Id. g 45 ; 35 Me. 411 ; 8 Cush. 75. See Westl. Priv. Tnt. L. 19. Where the place of birth is said to be their domicil at common law, Cald. 559. x-2 Hagg. Eccl. 405 ; i Binn. 349. y-i Binn. 349 ; 3 Zabr. 394 ; 8 Blackf. 345. -Story Confl. L. 47; 3 Ves. Ch. 198, 202; ii Conn. 2^4 ; 5 Texas, 211 ; i Milw. ipi. -io Rich. 38. See 26 Barb. 383. b-9 Bligh. Ho. L. 83, 104: 2 Stock. 238; 29 Ala. (N. S.jTig. c-2 Clark & F. Ho. L. 488; i Addis, 5, 19; i Dowl. 117; 2 Curt. Eccl. 351. See, also, 15 Johns. i?i ; i Dev. & B. 588: ii Pick. 410; 14 Id. 181 ; 2 Strobh. Eq. 184. U-Story Confl. L. I 46 ; * Pcnn. St. 17. DOM1C1I EQUITY. follows that of the guardian," especially where the guardian is a parent.' Ambassadors and other foreign ministers retain their domicil in the country to which they belong, and which they represent.' This does not apply to con- suls and other commercial agents. 11 A commercial domicil is acquired by main- tenance of a commercial establishment in a country, in relation to transactions connected with such establishments. 1 CHANGE OF DOMICIL. Any per- dn, sui juris, may make any bonafde change of domicil at any time.J And the object of the change does not affect the right, if it be a genuine change with real intention of perma- nent residence.* Children follow the domicil of the father, if the change be made bonafde;* but there are limitations to this power in the case of alien parents, 01 and of the mother, if a widow ; n not, however, if she acquires a new domicil by re-marriage. The guardian has the same power over his ward as a parent has over his child.? The domicil of a lunatic may be changed with the direction, or with the assent, of his guardian. i It may be considered questionable whether the guardian can change the national domicil of his ward. r The hus- band may not change his domicil after commit- ting an offence which entitles the wife to a divorce, so as to deprive her of her remedy ; and the wife may not in the like case acquire a new domicil.' DEATH. The presumption of death arises after the absence of a person from his domicil for seven years without having been heard from. See title EVIDENCE, post. RESIDENCE is a personal presence in a fixed and permanent abode. T A residence differs from a domicil, although it is a great matter of importance in determining the place of domicil. w Residence and habitancy are usually synonymous.* Residence indicates permanency of occupation, as distinct from lodging, or boarding, or temporary occupation, but does not include so much as domicil, which requires an intention combined with residence.* RETURN. See above. SETTLEMENT, or a residence under such circumstances as to entitle a person to support or assistance in case of becoming a pauper, is obtained in various ways. I. By birth. 2. By the legal settlement of the father in case of minor children. 3. By marriage. 4. By con- tinued residence. 5. By payment of requisite e-Story Confl. L. ? 506, n. ; i Binn. 349 ; 5 Ves Ch. 750; 3 Meriv. 67; 9 Mass. 543; 5 Pick. 20. f-Story Confl. L. ? 506. |f -3 C. Rob. Adm. 13, 27; 4 Id. 26; 4 Beav. Roll. 441. h-i C. Rob. Adm. 79; Thorne, 445; i Barb. 449; Enc. Am. Domicil. i-i Kent. Coram. 82; 2 Id. 11, 12. J-s Madd. Ch. 379; 5 Pick. 370; 35 Eng. L. & Eq. 532. k- 3 Wash. C. C. 546; 5 MaK. C. C. 70 ; x Paine C. C. 594 ; 2 Sumn. C. C. 251 . 1-2 SaOt. 528: 2 Brown Ch. 500; 6 Madd. Ch. 89; 16 Mass. 51 ; Ware. Dist. Ct. 464; Story Eq. Jur. 574: 27 Mo. 280. m-io Ves. Ch. 52 ; 5 East. 221 ; 8 Paige Ch. 47; 2 Kent Comm. 226. ii-Burge Comm. 38; 30 Ala. (N. S.) 613. See 2 Bradf. Surr. 214. O-Id. 18 $28; u Humph. 536. p-j Pick. 20; 15 Mass. 239; taxes. 6. By lawful exercise of a public office. 7. By hiring and service for a specified time. 8. By serving an apprenticeship, and perhaps some others which depend upon the statutes of the particular State.* Door. See REAL PROPERTY ; HOUSE. I>oul>le ('osts. See PRACTICE; COSTS. ]>onble Eagle. See MONEY. Double Insurance. See INSURANCE. Dower. See MARRIAGE: WIFB. Draw. See REAL PROPERTY. Drawee. See BONDS, NOTES, AND BILLS. Drawer. See BONDS, NOTES, AND BILLS. Drip. See REAL PROPERTY; WATEK. Druggist. See OCCUPATION. Drunkenness. See MEDICAL LAW. Due Bill. See MERCANTILE LAW. Duelling. See CRIMINAL LAW. Dumb. See PERSONS. Dumb Bidding. See SALES; AUCTION. Duplicate. See WRITING. Duplicity. See PLEADING. Duress*. See ACTS. Duty. See CONTRACTS, Obligation of. Dwelling House. See REAL PROPERTY; HOUSE. Dyspepsia. See MEDICAL LAW. Eagle. See MONEY. Eagl Easement. See REAL PROPERTY. Effects. See CONVEYANCES; WILLS. Ejectment. See PRACTICE. Election. See CONTRACTS. Elopement. See MARRIAGE; WIFK. Embargo. See INTERNATIONAL LAW. Embezzlement. See CRIMINAL LAW. Emblements. See LANDLORD AND TENANT PROPERTY, ETC. Eminent Domain. See REAL PROPERTY. Emission. See MEDICAL LAW. Enemy. See INTERNATIONAL LAW. Engross. See CONVEYANCES. Enlistment. See MILITARY LAW. Entirety. See CONTRACTS. Entry. See CRIMINAL LAW; REAL PROPERTY Envoy. See INTERNATIONAL LAW. Equality. See CONTRACTS. EQUITY. See EVIDENCE; LAW; PLEADING; PRACTICE. EQUITY is natural justice justice between contending parties. It is a branch of remedial justice which affords relief to suitors in courts of equity. The difference between the remedial justice of the courts of common law and that of courts of equity is marked and material. That ad- ministered by the courts of law is limited by the principles of the common law (which are to a great extent positive and inflexible), and es- pecially by the nature and character of the pro cess and pleadings, and of the judgments which those courts can render, because the pleadings cannot fully present all the matters in contro- versy, nor can the judgment be adapted to the special exigencies which may exist in particulai 1 Binn. 349. n. : 3 Meriv. 67 ; t Kent Comm. 227. S 18 Ga. 5. q-i4 Pick. 181. r-2 Kent Comm. 226- Story Confl. L. ? 506. 8-14 Pick. 181 : 2 Texas, 261. t-io N H. 61 ; 9 Me. 140 ; 17 Conn. 284 ; 5 Yerg. 203 . 2 Mass. 153; 5 Met. 233; 2 Litt. 337: 2 Blackf. 407. See Bishop Marr. & Div. 730. n-Peake Ev. C. 14, i ; Starkie Ev. 457, 458 ; Park. Jus. 433 ; i W. Bl. 404 ; i Stark. 121 ; 2 Campb. 113 ; 4 B. & Aid. 422 ; 4 Wheat. '5. '73: 5 Mass. 305; 18 Johns. 141; i Hardin, 479. V-zo Johns. 208 ; I Met. Mass. 251. W-See 13 Mas*. 5.01 ; 5 Pick. 370; i Met. Mass. 251; a Gray, 490 ; 19 Wend. 14; ii La. 175; 5 Me. 143. x-z Gray, 490; 2 Kent Comm. doth Ed.) 574, n. y-ig Me. 293 : 2 Keal Comm. (loth Ed.) 576. z-i Bl. Com. 363; Dougl 9- 6 S. & R. 103, 565; 19 14- 179. EQUITY. 42? cases. It Is not uncommon, also, for cases to fail in these courts, from the fact that too few or too many persons have been joined as par- ties, or because the pleadings have not been framed with sufficient technical precision. The remedial process of courts of equity, on the other hand, admits, and generally requires, that all persons having an interest shall be made parties, and makes large allowances for amend- ments by summoning and discharging parlies after the commencement of suit. The plead- ings are usually framed so as to present to the tpnsideration of the court the whole case, with Its possible legal rights, and all its equities ; Jiat is, all the grounds upon which the suitor is or is not entitled to relief, upon the principles of equity. And its final remedial process may be so varied as to meet the requirements of these equities in cases where the jurisdiction of the courts of equity exists, by " commanding what is right, and prohibiting what is wrong." In other words, its final process is varied so as to enable the courts to do that equitable jus- tice between the parties which the case de- mands, either by commanding what is to be done, or prohibiting what is threatened to be done. In many States courts possess both law and equity jurisdiction. In equity there are certain rules and maxims which are of special importance : 1. "Equity once having jurisdiction" of a subject-matter, because there is no remedy in law, or because the remedy is inadequate, " does not lose the jurisdiction," merely be- cause the courts of law afterwards give the same o- similar relief. 2. " Equity follows the law," except in rela- tion to those matters which give a title to equit- able relief because the rules of law would operate to sanction fraud or injustice in the particular case. 3. " When there is equal equity the law must prevail." For if one's adversary has an equally equitable case, the complainant has no more title to relief than his adversary; therefore equality is equity. 4. " Equality is equity." Cases of appor- tionment of money, or of contribution among those benefited or liable, abatement of claims on account of deficiency of the means of pay- ment, etc., etc., are examples. 5. " He who seeks equity must do equity." A party cannot claim judicial interposition for relief unless he will do what it is equitable as a condition precedent to that relief. 6. " Equity considers done that which ought to have been done." Thus, where there is an agreement for the sale of land, and the vendor dies, the land may be treated as money, and the proceeds of the sale, when completed, go > the distributees of personal estate instead of the heir. If the vendee dies before the com- pletion of the purchase, the purchase-money may be treated as land for the benefit of the fleir. The general nature and jurisdiction of equity exists for the following purposes : 1. For the purpose of compelling a discov- ery from the defendant, respecting the truth of the matters alleged against him, by an appeal to his conscience to speak the truth. The dis- covery is enforced by requiring an answer to the allegations in the plaintiff's complaint, in order that the plaintiff may use the matters ciisclosed in the answer as admissions of the defendant, and thus evidence for the plaintiff, either in connection with and in aid of other evidence offered by the plaintiff, or to supply the want of other evidence on his part; or it may be to avoid the expense to which the plain- tiff must be put in procuring other evidence to sustain his case. Where the plaintiff's complaint (otherwise called a bill) prays for relief in the same suit, the statements of the defendant in his answer are considered by the court in forming a judg- ment upon the whole case ; to a. certain extent the statements of the defendant in answer to the bill or complaint are evidence for himself also. The discovery which may be required is not only of facts within the knowledge of the de- fendant, but may also be * Washh. R. Prop. 370: 4 Kent Comm. 115: Tudor L. Cas. 14; 4 Rawle, 123; j T. R. 159. C-2 Sharsw. 61. Comm. 140; 2 Crabbe R. Prop. ? 1267; Bac. Abr. Leases; Wms. R. Prop. 105; i Washb. R. Prop. 298; t Platt. Leases, 47. d-is Mass. 439; i N. H. 350; isS.&R. 60; 4 Kent Comm. 93; see i Greenl. Cruise Dig. 232, notes. C-2 Bl. Comm. 494; r Wms. Ex. 330. f-Swinb. -Pt. 6, 4; i Wms. Ex. 241, 242. gf-Kent Comm. 43, */ teg. ; i Wras. Ex. Am. Notes; 14 Ala. 829. ESTATES. sonal representative is strictly limited to the State from which it is derived. Still there are some exceptions to this rule ; thus, an executor or administrator, after perfecting his title to per- sonal property of the estate by due proof, and obtaining proper letters, may maintain an action in his own name without describing himself as executor or administrator, for the recovery of damages for any injury done to any of the per- sonal property of the estate, after the decease of the testator or intestate, such action being founded, not upon the title of the deceased, but upon that of his personal representative, as such, h and this wherever the goods may be carried, fo*nd, or withheld, and whether in his custody or not. So, too, where the title to the property in possession, and even in choses in action of a negotiable nature, becomes perfected under the administration in one state or country, any action requisite to vindicate and enforce such title in any other or foreign state or country may be maintained without recourse to any local administration. But beyond these and similar exceptional cases, the authority of an executor or administrator is limited to the state or coun- try where it is granted. ADMINISTRATION TO COLLECT AND PRE- SERVE goods about to perish, is granted where there is no executor or administrator, and is governed entirely by statute which limits and qualifies the administrator's power over them. ADMINISTRATION DE BONIS NON is granted where a former administrator dies leaving a portion of the estate of a deceased unadminis- tered. The person so appointed has in general the powers of a common administrator. 1 But an administrator de bonis non does not succeed to any special trust reposed in the former repre- sentative.^ Such administrator derives his title from the decedent, and not from the for- mer executor or administrator.* His liability is therefore restricted to the goods remaining unadministered. 1 ADMINISTRATION DURING ABSENO" of the executor, and until he has proven tht will, is generally granted when the next of kit (being nominated as executor, or primarily entitled to the administration) is beyond the sea, out of the country or State, lest the goods perish or the debts be lost. But appointment of an adminis- trator temporarily, on account of the non-resi- dence or other cause, that the primary adminis- trative cannot conveniently administer, is not allowable: there should be a general and re- sponsible representative of the estate appointed ll-Cro. Jac. 113. Disposing of bank shares out of the State without taking out new letters of administration, 12 Met. (Mass.) 421 ; 4 Mason, 16 : see 7 Johns. Ch. 45. i-Bac. Abr. Executors B. ; i Rolle Abr. 907 ; 22 Miss. 47; 37 Ala. 273; 9 Ind. 342; 4 Sneed. 411; 31 Miss. 519; 29 Vt 170; ii Md. 412. j-30 Me. 204; 7 Penn. St. 259; 10 Penn. St. 454; see also, i Barb. Ch. 565. lt-27 Comm. 344. I-He is not responsible for any de- fault, mismanagement, or waste of theirs, 8 Conn. 584; 5 Penn. St. 258. in-By disposing of goods of a perish- able nature, as fat cattle, graing, or anythin which may be the worse from keeping. He may also sell goods for the payment of debts, 5 Co. 29 b. ; i Wms. Ex. 427. M-T. Kaym. 483. o-Bac. Abr. Leases, I, 7 ; i Wms. 28 within the jurisdiction. Still courts of probate appoint administrators and issue letters testa- mentary to non-residents ; but where, for any cause, it is important to institute suits, either in law or equity, against the representative of the estate, it is essential that he should be found in the jurisdiction of the court. ADMINISTRATION DURING MINORITY is granted when executor, or next of kin, or other party entitled to administer, is a minor. In either case the court is compelled to select s.ome other person, either temporarily or per- manently. Such administrator may collect as- sets, pay debts, sell perishable property, and perform such other acts as require immediate attention. Such administrator has all the au- thority, for the time being, of a general admin- istrator. He must manage in a prudent man- ner. He may assent to a legacy, sue and be sued" for debts of the deceased, and may retain for his own debt. As the office expires by its own limitation upon the regular representative coming of full age, it is generally proper, in suits for or against such administrator, to allege that the regular representative is under age ; and so especially where such administrator is plaintiff, this being a matter specially within his knowl- edge.P He must render his accounts to the probate court the same as any other adminis- trator. i Where there are several executors, all under age, the administration during minority will cease upon any one coming of age.' FOREIGN ADMINISTRATION is exercised by virtue of authority properly conferred by a for- eign jurisdiction. It is a general rule that let- ters of administration granted abroad give no authority to sue or be sued in another jurisdic- tion (with exception above noted), though they may be ground for new probate authority. 1 Hence, where persons are domiciled in one country, as A., and have persona 1 property in another, as B.,the authority must be had in B., but exercised according to the laws of A.* There is no legal privity between administra- tors in different States. The principal admin- istrator is to act in the intestate's domicil, and the auxiliary or ancillary administrator is to collect claims and pay debts in the foreign jur- isdiction, and pay over the surplus to his prin- cipal. It has been held that the probate of a will in a foreign State, if duly authenticated, dispenses with the necessity of taking out new letters/ and that possession of property may be taken in a foreign State, but that suit cannot be Ex. 428, and notes. p-Hob. 251 ; Cro. Jac. 500; Yelv. 128; i Ld. Raym. 409. q-i Sid. 57; i Cas. temp. Lee 15. r-Taller Ex. 101, 102 ; 4 Burns Eccl. L. 228. 8-5 Ves. Ch. 44 ; 9 Cranch, 151 ; 12 Wheat. 169 ; 2 Root, 462; 20 Martin, 232; i Dall. 456; i Binn. 63; 27 Ala. 273; 9 Tex. 13 ; 21 Mo. 434 : 29 Miss. 127; 4 Rand. 158; loYerg. 283; 5 Me. 261; 35 N. H.4&4; 4 McLean C. C. 577: 15 Pet. i ; 13 How. 458. t-Story Confl. L. 23,447; 15 N. H. 137; 15 Mo. 118; 5 Md. 467; 4 Bradf. Surr. 151, 240. n-2 Met. (Mass.) 114; 3 Hogg Eccl. IOQ ; 6 Humphr. 116 ; 21 Conn. 577 ; 19 Penn. St. 476; 3 Day ,74; i Blatch. & H. D. C. 300; 23 Miss. 199; 2 Curt. Eccl. 241 : i Rich. 116. v-5 Ired. 421 : B. Mon. 12 ; 18 Id. 582 ; 4 Call. 89; xsPcCz; yGOl. 95 ; 12 Vt. 589- 43* ESTATES. brought without taking out letters in that Slate.' ADMINISTRATION PENDENTE LITE is granted pending litigation, 1 respecting an alleged will or right of appointment. An officer of the court is appointed to take care of the estate only till the suit terminates.' The general duty of such ad- ministrator is to represent the estate during the pendency of the litigation, and in the meantime to see that no detriment comes to the goods or effects of the estate. 1 He is merely an agent or officer of the court, and when the litigation is determined he must relinquish his office, and surrender all the estate in his hands to the right- ful representative.* His authority merely ex- tends to collecting the assets and preserving them, and not to investing or distributing them. b He cannot use the money of the estate or invest it, and is not, therefore, liable for interest dur- ing the controversy. And for all the purposes of his administration he may maintain suits. PUBLIC ADMINISTRATION is performed by a public administrator, by virtue of a statute, in those cases where a person dies intestate, leav- ing any who are entitled to apply for letters of administration. 4 SPECIAL OR LIMITED ADMINISTRATION is limited either in duration or extent, time or power. The right of a testator to commit dis- tinct portions of the settlement of his estate to different persons, whether in the same or differ- ent countries, is not recognized by our courts," though it has been held that a general grant of administration, during the pendency of a con- test for proof of a will, is a nullity/ and admin- istrations limited to particular Affects, or to the performance of a single act, granted .8 ADMINISTRATION, WITH WILL ANNEXED, occurs either : h I. Where no executor is ap- pointed by the will. 1 2. Where an executor pre-deceases the testator.* 3. Where for any cause an executor becomes incompetent to dis- charge the office, or renounces it. 4. Where, after having proven the will, the testator dies before completing the administration. In this latter class of cases the administrator is also administrator de bonis non. So, also, where the peron named executor is limited to his age of majority, either by the terms of the will or the laws of the State, and has not yet arrived at full age, some one must act as administrator with the will annexed in the meantime. And there are other cases where a vacancy in the office of executor may exist either temporarily or permanently, as where the person named executor is not to act until one year after the W-2 Ala. 429 ; 18 Miss. 607; 2 Sandf. Ch. 173. x-a P. Wins. Ch. 576, 589. y-2 P. Wms. Ch. 589 ; 2 Atk. Ch. 286; 2 Cas. temp. Lee, 258; i Hagg. Eccl. 313; 26 N. H. 533; q Tex. 13; 16 Ga. 13. z i Wms. Ex. 433, 434. a-i Hagg. Eccl. (13. b-i Ball & Beattie, 191, 192 ; i Ves. Sr. 325 ; 2 Ves. & B. Ch. 97 ; 7 Md. 282. c-i Ball & B. 191. l-3 Bradf. Surr. 151 ; 4 Id. 252. e- 5 Gill &J. 483. f-3 I red. L. 557. tf-6 Yerg. 302. A judgment against a special administrator binds the es- tate, i Sneed. 430 Il-Plowd. 275, 279, 281. i-4 Mass. 634. j-Willard Ex. ; 2 Bradf. Surr. 22. It-See Wins. Ex. 237, and notes ; 8 Cranch, 536 : 12 Gratt. 85 ; I W. Si 8.396; ii Ohio, 257; 22 Ga 431 ; 29 Miss. 127; a death of the testator, etc. In general, the duties of the executor wholly devolve on tlie administrator with the will annexed, so far as they pertain to the settlement and distribution of the estate ; but where there are special trusts devolved upon the executor beyond this, which are of longer duration and more strictly per- sonal, those should be devolved upon a trustee specially appointed for that purpose by the proper authority of court. Such administrator must follow the statute rules of distribution, except when otherwise directed by the will. JURISDICTION over administrations is vestec in courts of both general and limited jurisdic- tion. The officer authorized to delegate the trust is called judge of probate, ordinary, regis- trar of wills, surrogate, etc., etc. k In some States these courts are of special jurisdiction, as county courts, probate or surrogate courts, etc., while in others the power is vested in the courts of general jurisdiction, as the circuit and su- perior courts. 1 These courts have no jurisdic- tion until the death of the testator or intestate has taken place. This is generally brought to their notice in the form of an affidavit. A de- cree of the court is prima fade evidence of such death. The personal property of a decedent after expenses of last sickness, allowance to widow and minor children, etc., is appropriated to the payment of his debts, so far as required, and, until exhausted, must be first resorted to by creditors. By the general statutes upon the subject the court may grant the administrator power to sell, lease, or mortgage land, when the personal estate of the deceased is not suf- ficient to pay his debts. Purchasers at such sale get as full title as if they had been distribu- tees ; but no warranty can be implied by the administrator's silence. But a fraudulent sale will be annulled by the court. P LIMITATION OF AN ESTATE is the circumscription of the quantity of time comprised in an estate.' The definition or circumscription in any conveyance of the inter- est which the grantee is intended to take.' It is used in different senses. LINE. See REAL ESTATE; BOUNDARIES. MERGER. When a greater estate and a less meet in one and the same person without any intermediate estate, the less is immediately merged, that is, absorbed in the latter. For example, if there be a tenant for years, and the reversion in fee simple descends to or is pur. chased by him, the term of years is merged into the inheritance, and no longer exists ; but Gray, 228; 2 Jones, 387. 1-See 2 Kent Comm. 410; 9 Dana, 91 ; 4 Johns. Ch. 552 ; 4 Md. i : n S. & R. 4-52 ; 7PaigeCh.ua; i Green (N. J.) 480; i Hill (N. Y.) 130; 5 Miss. 638 ; 12 Id. 707; 30 Id. 472. ill-Ami puts the burden of disproof on the party pleading in abatement, 3 T. R. 130; 26 Barb. 383; 18 Ohio, 268. Overruling the statements of Greem. Ev. \ 41 ; i Jarm. Wills : 24 Am. note, ll-i Bradf. Surr. 10, 182, 234 ; a Id 50, 122, 157: 29 Ala. (N. S.) 210, 542; 4 Mich. 308; 4 Ind. 468. 18111.519. 0-2 Stockt. 206; 2o-Ga. 588; 13 Tex. 322; 30 Miss. 147, 502 ; 31 Id. 348, 350. p-i6 N. Y. 174 : 2 Bradf. Surr. 200 ; see title ASSETS, ante. q- Presto* Est. 25. r- Lander's Uses, 4th Ed. 121, et ttf. ESTATES. 433 they must be one and the same person, at one and the same time, in one and the same right.* The estate in which the merger takes place is not enlarged by the accession of the preceding estate ; and the greater or only subsisting estate continues after the merger precisely of the same quantity and extent of ownership as it was be- fore the accession of the estate which is merged, and the lesser estate is extinguished.* As a general rule equal estates will not merge in each other ; the merger is produced either from the meeting of an estate of higher with an estate of inferior degree, or from the meeting of the particular estate and the immediate re- version in the same person." SEVERANCE is the destruction of any of the unities of a joint tenancy. It is so called because the estate is no longer a joint tenancy, but is severed. Severance is effected : I. By alienation of one of the joint tenants, which changes the estate into a tenancy in common. 2. By partition. 3. By purchase or descent of all the shares of the joint tenants so that the whole estate becomes vested in one only. T SURRENDER is the yielding up of an estate for life or years to him who has an im- mediate estate in reversion or remainder by which a lesser estate is merged in the greater by mutual agreement." It is the deed by which the surrender is made. A surrender is of a nature directly opposite to a release; for as the latter operates by the greater estate descending upon the less, the former is the falling of a less estate into a greater by deed. A surrender immediately divests the estate of the surrenderer and vests it in the surrenderee, even without the assent of the latter. 1 The technical and proper words of this conveyance are " surrender and yield up; " but any form of words by which the intention of the parties is sufficiently mani- fested will operate as a surrender.' The sur- render may be express or implied ; the latter is when the estate incompatible with the existing estate is accepted or the lessee takes a new lease of the same lands. 1 TERM is the limitation of an estate ; as a term for years, for life, or the like. The word " term " does not merely signify the time speci- fied in the lease, but the estate, also the interest which passes by that lease; and therefore the term may expire during the continuance of the term; as, by surrender, forfeiture, and the like. TITLE is the means whereby the owner of an estate holds just possession of the same. If bad, it conveys no property. If doubtful, the court will not consider it clear enough to enforce its acceptance by a purchaser, nor so defective as to declare it a bad title, but only 8-2 Bl. Comm. 177; Latch, ivj; Poph. 166; 6Madd. Ch. 119; i Johns. Ch. 417; 310.53; 3 Mass. 172. t- Preston Conv. 7 ; Washb. R. Prop. 11-4 Kent Comm. j8; see Washb. R. Prop.; 3 Preston Conv.; 15 Viner Abr. 361; 10 Vt. 293; 8 Watts, 146. v-Com. Dig. Estates by grant (K. 5); i Binn. 175. w-Co. Lilt. 337 t. x-Shep. Touchst. 300, 301. y-Perk. j| 607 ; i T. R. 441; Com. Dig. Surrender (A.) z-i6 Johns. 28; 2 subject to so much doubt that a purchaser ought not to be compelled to accept it. b If it be marketable a court of equity considers it so clear that it will enforce its acceptance by the purchaser.* There are several stages or degrees requisite to form a complete title to lands. The lowest and most imperfect degree of title is the mere possession, or actual occupation of the estate without any apparent right to hold or continue such possession. This happens when one man dispossesses another. The next step to a good and perfect title is the right of possession which may reside in one man while the actual posses- sion is not in himself but in another; this right of possession is of two kinds: I. An apparent right of possession, which may be defeated by proving a better; and 2. The actual right of possession, which will stand the test against all occupants. Title to real property is acquired by either descent or purchase. Title to personal prop- erty is acquired: I. By original acquisition, creation, or occupancy, such as intellectual labor, copyright, and patent property. 2. By transfer by act of the parties, such as by gift, by contract, or by sale; and by transfer by operation of the law, as by forfeiture, succes- sion, marriage, judgment, bankruptcy, insolv- ency, intestacy. In general, possession constitutes the title to personal property, because no other means exist by which a knowledge of the fact to whom it belongs can be obtained. A seller of a chattel is not, therefore, required to show the origin of his title; nor, in general, is a purchaser with- out notice of the claim of the owner, compellabl^ to make restitution ; but a purchaser from a ten. ant for life of personal chattels will not besecuu against the claims of those entitled in remain- der. 4 Exceptions to the rule that possession is the criterion of title of property are chattels mortgaged, when such mortgage is required by law to be recorded in a public office ; bills of sale, under the same requirements, and ships, the title of which can be ascertained by the register. 8 To convey title, the seller must himself have a title to the property which is the subject of the transfer. But to this general rule there are exceptions. The lawful coin and currency of the United States will pass the property along with the possession. A negotiable instrument, indorsed in blank, is transferable by any person holding it, so as by its delivery to give good title " to any person honestly acquiring it." f Estoppel. See PRACTICE. Estovers*. See LANDLORD AND TENANT. KH trays. See ANIMALS. Estrepllieilt. See PRACTICE. Wils. 26; i B. & Aid. 50; 2 Id. 119; 5 Taunt. 518. a- 2 Bl. Comm. 145 ; 8 Pick. 339. b-i Jac. & W. Ch. 568 ; 9 Cow. 344. c-ijac. &W. Ch. 568; Atk. Tit. 11,26. _ Taunt. 625; 6 Id. 263; i Marsh. 258; see 2 Penn. L. J. 17. U-Cowp. 432; i Brown. 274; 2 T. R. 376; 3 Atk. Ch. 44 ; 3 Ves. & B. 16. e-is Ves. Ch. 60; 17 Id. 251 ; 8 Price, 256, 277. f-3 Barnew. St. C. 47; 3 Burr. 1516; 5 T. R. 683; 7 Bingh. 284; 7 Taunt. 265, 378, 13 East. 509. EVIDENCE. Evasion. See PRACTICE. Eviction. See REAL PROPERTY. EVIDENCE. See AFFIDAVITS; BONDS, NOTES, AND HILI.S; EO.UITY; LAW; PRACTICE. EVIDENCE is that which tends to prove or disprove any matter in question, or to influence the belief respecting it. Belief is produced by the consideration of something presented to the mind. The matter thus presented, in whatever shape it may come and through whatever mate- rial organ it is derived, is evidence.* The word evidence in legal acceptation includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. 5 That which is legally submitted to a jury, to enable them to decide upon questions in dispute, or issues, as pointed out by the pleadings, and distinguished from all comment and argument, is termed evidence. Evidence may be considered with reference to its instruments, the mode of its introduction, its nature, and its object. The instruments of evidence and mode of their introduction are as follows : 1. JUDICIAL NOTICE OR RECOGNITION. This needs no proof; it is already known and recog- nized by the court. 2. LAWS. Laws are introduced and proven by printed statute books, or copies from the original rolls, duly exemplified. 3. PERSONAL INSPECTION. 4. PUBLIC DOCUMENTS printed by authority of Congress or the legislature. These are in- troduced and proven by printed or written copies from the original records, duly exemplified. 5. PUBLIC RECORDS AND COPIES THEREOF, consisting of registers of official transactions made by officers elected or appointed for that purpose. These are introduced and proven by printed copies or by copies from the original records, duly exemplified. 6. RECORDS AND TRANSCRIPTS of proceed- ings in foreign and domestic courts. These are introduced and proven by copies and tran- scripts, duly authenticated or exemplified. 7. PRIVATE WRITINGS, as deeds, contracts, wills, etc. These are introduced and proven by the instruments themselves, or copies duly evidenced. 8. TRANSLATIONS. These must be correctly made from the original writing to be introduced in evidence. TESTIMONY OF WITNESSES is introduced by affidavit, deposition, and oral examination. The nature or legal character of evi- dence is as follows : I. CONCLUSIVE being such as establishes the fact, and that satisfies the court and jury; that which cannot be controlled or contradicted by any other evidence. a-Prof. Parker Lect. Med. Jur. b-i Greenl. Ev. c. i, { x. C-i Stark. Ev. pt. i, i. d-6 Pet. 622,632 ; 14 Id. 334. e-j Bouv. Inst. n. 3055. f-3 Bouv. Inst. n. 3055. g-g B. & C. 535 ; 7 T. R. 563 ; i Dall. 65. h-i Campb. 392 ; 2 Id. 561 ; 2 T. R. 763 ; 3 B. & C. 421 : 5 Pet. 580; 5 Wheat. 277; 7 Mass. 131 ; 9 Ala. (N. S.) 791; ao Johns. 142; 5 Gill. & J. 134. I-a Bingh. 306; tld. 3 og ; 8 B. & C. 36; i Stark. 488 ; a Pick. 581 ; 3 2. PRIMA FACIE being sufficient, in the ab- sence of evidence to the contrary, to establish a fact. 4 3. PRIMARY being the original, the first, the best, and highest degree of evidence of which the case, in its nature, is susceptible. 6 4. SECONDARY being such as is admissible when original or primary evidence is lost or de- stroyed, and which, in such an event, becomes the best evidence/ See COPY ; DECLARATION ; HEARSAY, below. The object of evidence is to ascertain the truth between the parties. It has been discovered by experience that this is done most certainly by the adoption of the following rules : 1. The evidence must be confined to the point in issue. 2. The substance of the issue must be proved ; but only the substance is required to be proved. 3. The affirmative of the issue must be proved. See PROOF, ETC., below. ACCOUNTS; ACCOUNTS STATED; see title ACCOUNTS, ante. ACTS ; see title ACTS, ante. ADMISSIONS (concessions or voluntary acknowledgments made by a party, of the ex- istence or truth of certain facts). As distin- guished from confessions, the term is applied to civil transactions, and to matters of fact in criminal cases where there is no criminal intent. See post, " CONFESSIONS." As distinguished from consent, an admission may be said to be evidence furnished by the party's own act of his consent at a previous period. Direct or express admissions are those which are made in direct terms. Implied admissions are those which result from some act, or failure to act, of a party. Incidental admissions are those made in some other connection, or in- volved in the admission of some other fact. Admissions may be made by a party to the record, or by one identified in interest with him.s Not, however, where the party of record is merely a nominal party, and has no active in- terest in the suit. h They may be made by one of several having a joint interest, so as to be binding upon all. 1 Mere community of inter- est, as in the case of co-executor,J trustees, 11 or co-tenants, 1 is not sufficient. The interest in all cases must have subsisted at the time of making the admissions."* They may be made by any person interested in the subject matter of the suit, though the suit be prosecuted in the name of another per- son as cestui que trusl, n or indemnifying credi- tor in an action against the officer. They may be made by a third person, a stranger to the suit, where the issue is substantially upon the Id. 291 ; 4 Id. 382; iM'Cord,54i; i Johns. 3; 7 Wend. 441; 4 Conn. 336; 8 Id. 268; 7 Me. 26; 5 Gill. & J. 144; i Gall. C. C. 635. J-i Greenl. Ev. 176; 4 Cow. 493 ; 16 Johns. 277. k-3 Esp. 101. 1-4 Cow. 483 ; i$ Conn. i. 111-2 Stark. 41 ; 4 Conn. 544 : 14 Mass. 245 ; 5 Johns. 412 ; I S. & R. 526 ; 9 Id. 4 i Bingh. 45, but see 3 5 John; i Wils. Ma nu. 257; nil. & G. 7: '2 Nev. Id. 328. n- &P. 598; 261. 0-4 East. 584 ; 7 Carr. & P. 629. EVIDENCE. 435 rights of such a person, at a particular time, 1 or who has been expressly referred to for informa- tion,! or where there is a privity between the ancestor and heir, k an assignor or assignee, 1 in- testate and administrator. 10 They may be made by an agent so as to bind his principal ; n so far only, however, as the agent has authority, and not in regard to past transactions. P Thus, the admissions of the wife bind the husband so far only as she has authority in the matter,' and, so the formal admissions of an attorney bind his client. 1 " Implied admissions may result from assumed character,* from conduct,' from acquiescence, which is positive in its nature ; u from possession of documents in some cases/ In civil matters, constraint will not avoid ad- missions if imposition or fraud were not made use of. Admissions made in treating for an adjust- ment cannot be given in evidence where made under faith of a pending treaty.* Judicial admissions, 1 and those which have been acted on by others/ and in deeds, as be- tween parties and their privies,* are conclusive evidence against the parties making them. It frequently occurs in practice, that, in order to save expenses as to mere formal proofs, the attorneys on each side consent to admit, recip- rocally, certain facts in the cause without call- ing for proof of them. These are usually re- duced to writing, and the attorneys shortly add to this effect, namely : " We agree that the above facts shall, on the trial of this cause, be admitted, and taken as proved on each side;" and signing two copies now called " admissions " in the cause ; each attorney takes one.* AFFIDANT. See title AFFIDANTS, ante, and LOST PAPERS, below. AFFIRMATION. An affirmation is a solemn religious asseveration in the nature of an oath. b Quakers, as a class, and other persons who have conscientious scruples against taking an oath, are allowed to make affirmation in any mode which they may declare to be binding upon their conscience, in confirmation of the truth of the testimony which they are about to give. See OATH, below. ALIBI. When a person charged with a crime proves that he was at the time alleged in a different place from that in which it was com- mitted, he thus proves an alibi (elsewhere), the effect of which is to lay a foundation for the i-r Greenl. Ev. \ 181 ; 2 Stark. 42. J-i Campb. 366, u.: 3 C. &P. 532- k-5 B. & Ad. 223 : i Bingh. (N. C ) 430. 1-54 Taunt. 16 ; 2 Pick. 536 ; 2 Me. 242 : 10 Id. 244; 3 Rawle, 437; 2 M'Cord, 241 ; 17 Conn. 399. in-3 Bingh. (N. C.) 291 ; i Taunt. 141. ll-Story Ag. \\ I 34~ I 37- o -* Greenl. Ev. J 114. |>-6 M & W. 58; I'l Q. B. 46; 7 Me. 421 ; 4 Wend. 394 ; 7 Harr. & J. 104. 19 Pick. 220; 8 Met. (Mass.) 142. <|-i Esp. 142; 4 Campb. 92 : i C. & P. 621 ; 7 T. R. 112. r-7 C. & P. 6 ; i M. & W. 508, and see 2 C. & K. 216 ; ? C. B 608 8-1 B. & Aid. 677 ; 2 Campb. 513. t-i Sim. & S 600; 6C. & P. 241; 9 B. &C. 78; 9 Watts, 441. u-iSumn 314; 4 Fla. 340; 3 Mass. C. C. 81 ; 2 Vt. 76. v-s C. & P. 75; a Stark. 140; 25 St. Tr. 120. w-7 Binffh. 101 ; necessary inference that he could not have com- mitted it. d This proof is usually made out by the testimony of witnesses, but may be made by writings properly authenticated. ALIUNDE is from another place, outside or without the will, judgment, etc., evidence aliunde may be received to explain an ambi- guity in a will,* but never to impeach a judg- ment, for a judgment obtained is valid against the world, unless, of course, it be fraudulent; invalid, non-existent, or satisfied. BELIEF may be stronger or weaker accord- ing to the weight of evidence adduced in favor of the proposition under consideration.' The conviction of the mind arises, not from actual perception or knowledge, but by way of infer- ence, or from evidence received or information derived from others. BEST EVIDENCE is not the highest or strongest evidence possible, but the best evi- dence which the nature of the thing to be proved admits ; for example, a copy of a deed is not the best evidence, the deed is better.* BILL OF LADING. See title BONDS, NOTES, AND BILLS, ante. BLANKS. When a blank is left in a written agreement which need not have been reduced to writing, and would have been equally binding, whether written or unwritten, it is presumed in an action for the non-perform- ance of the contract, parol evidence may be admitted to explain the blank. And where a written instrument has been made professedly to record a fact, is produced as evidence of that fact which it purports to record, and a blank appears in a material part, the omission may be supplied by other proof. h Hence JL blank left in an award may be supplied. 1 But where a creditor signs a deed of composition, leave the amount of his debt in blank, he binds himself to all existing debt.i BONDS, NOTES, AND BILLS. See that title, ante. BURDEN OF PROOF. The burden of proof is the duty of proving the facts in dis- pute on an issue raised between the parties in a cause. Burden of proof is to be distinguished from prima fade evidence and prima facie case. Generally, when the latter is shown, the duty imposed upon the party having the burden will be satisfied ; but it is not necessarily so. k The burden of proof lies upon him whc substantially asserts the affirmative of the issue ; 2 Campb 106: 2 Pick. 290; 4 Td. 374; 13 Ga. 406. x- i Greenl. Ev. 205 ; 2 Campb. 341 : 5 Mass. 365- 5 Pick 285. y-3 Rob. (La.) 243 ; i7Conn.355. 13 Jur. 253. z-4 Pet. i ; 6 Td. 611. a-Gresley Eq. Ev. c 2. p. 38. b-i Greenl. Ev. j> 371. c-i Atk Ch. 21.46; Cowp. 340, 389 ; i Leach. Cr. Cas. 64 ; i Ry. & M. 77 ; 6 Mass. 262 ; 16 Pick. 153 ; B. N. P. 292 ; i Greenl. Ev. \ 371. l-Bracton, 140. e-i Greenl. Ev. J 291. f-4 S. &R. 137; i Greenl. Ev. $7-13. jr-Gilb EY. 15; Stark. Ev. 437: 2 Campb. 605; 3 Id. 236; i Esp. 127; i Pet. 591 ; 6 Id. 352 ; 7 Td. too. ll-i Phill Ev. 475; i Wils. 215 : 7 Vt. 522 ; 6 Id. 411. i-2 Dallas, 180. J- i B. &Ald. 101 l*-6Cush. 364 ; ii Met. 460: 22 Ala. K>; 7 Blackf. 427; i Gray, 61 ; 7 Bost. L. R 439 l-l Greenl. Ev - : j Eng. L. & Eq; 3 M. & W. 510. 436 EVIDENCE. but where the plaintiff grounds his case on negative allegations, he has the burden.' In criminal cases, on a twofold ground that a prosecutor must prove every fact necessary to substantiate his charge against a prisoner, and that the law will presume innocence in the ab- sence of convincing evidence to the contrary, the burden of proof, unless shifted by legislative interference, will fall, in criminal proceedings, on the prosecuting party, though in order to tonvict he must necessarily have recourse to egative evidence.* The burden of proof is throughout on the State to make out the whole case ; and when a prima facie case is estab- lished, the burden of proof is not thereby shifted upon the defendant, and he is not bound to restore himself to that presumption of inno- cence in which he was at the commencement of the trial." In general, whenever the law presumes the affirmative, it lies on the party who denies the fact to prove the negative; as when the law raises a presumption as to the continuance of life, the legitimacy of children born in wedlock, or the satisfaction of a debt. See PROOF OF ISSUE, below. CHARACTER (opinion generally enter- tained of a person derived from the common report of the people who are acquainted with him). 1 The moral character of a person in society may be used in proof before a jury in three classes of cases: I. To afford a presump- tion that a particular party has not been guilty of a criminal act. 2. To affect the damages in particular cases, where their amount depends on the character and conduct of any individual. 3. To impeach or confirm the veracity of a witness. OF PARTIES. Where the guilt of an accused party is doubtful, and the character of the sup- posed agent is involved in question, a presump- tion of innocence arises from his former conduct in society, as evidenced by his general charac- ter; since it is not probable that a person of known probity and humanity would commit a dishonest or outrageous act in the particular instance. But where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things, and beyond common experi- ence it is so manifest that the offence, if per- pretrated, must have been influenced by motives not frequently operating on the human mind that evidence of character, and of a man's habitual conduct under common circumstances, it must be considered far inferior to what it is in accusations of a lower grade. Against facts strongly proved, good character cannot prevail. It is, therefore, in smaller offences, in such as relate to the actions of daily and common life, f-i T. R. 141 ; 6 Id. 559 ; 2 M. & S. 395; 5 W- 206; I Campb. 199 ; i C. & P. 220 : 5 B. & C. 758 ; I Me. 134 ; 4 Id. 226; 2 Pick. 103; 4 Id. 341 ; 5 Rich. 57; i Greenl. Ev. 41. nr-i Tayl. Ev. ? 344; 12 Wheat. 460. l-i Ben. & H. Lead. Cr. Cas. 352 ; see 9 Met (Mass.) 93 ; 5 Cush. 296; 2 Gratt. 594; Wright, 20 ; 5 Yerg. 340; 16 Miss. 401. 1-3 S. & R. 336; 3 Mass. 192; 3 Esp. 236. J-Per Show. -. J. 325; see 5 Esp- >3: ' Campb. 460; as when one is charged with pilfering ami stealing, that evidence of a high character for honesty will satisfy a jury that the accused ii not likely to yield to o slight a temptation. In such case, where the evidence is doubtful, proof of character may be given with good ellect. But still even with regard to the higher crimes, testimony of good character, though of less avail, is competent evidence to the jury, and a species of evidence which the accused has a right to offer. It is the privilege of the accused to put his character in issue, or not. If he does, and offers evidence of a good char- acter, then the prosecution may give evidence to rebut and counteract it. But it is not com- petent for the government to give in proof the bad character of the defendant, unless he first opens that line of inquiry by evidence of good character.^ OF WITNESSES. The party against whom a witness is called may disprove the facts stated by him, or may examine other witnesses as to his general character; but they will not be allowed to speak of particular facts or parts of his conduct.* For example, evidence of the general character of a prosecutrix for a rape may be given, as that she was a street- walker ; but evidence of specific acts of criminality can- not be admitted. 1 The regular mode of in- quiring into the reputation of a witness, is to ask of those introduced for that purpose whether they know the general reputation of the person in question among his neighbors, and what that reputation is. The inquiry must be as to his gen- eral reputation where he is best known, or with those among whom he is known, or with those among whom he dwells, 1 " and whether from such knowledge he would believe him on his oath." In answer to such evidence against character, the other parly may cross-examine the witness as to his means of knowledge, and the grounds of his opinion ; or he may attack such witness' general character, or by fresh evidence support the character of his own.' A party cannot give evidence to confirm the good character of a witness, unless his general character has been impugned by his antag- onist.? See WITNESS, IMPEACHMENT OF, below. CIRCUMSTANCES. Facts proved are always accompanied by circumstances which more or less influence the mind in forming a judgment. In some instances these circum- stances assume the character of irresistible evidence ; where, for example, a woman was found dead in a room, with every indication of having met with a violent death, the presence of another person at the scene of action was made manifest by the bloody mark of a left 3 Id. 519 ; 2 Str. 925 ; 2 St. Tr. 1038 ; i Coxe, 424 ; 5 S. & R. 352 ; 2 Bibb. 286 ; 3 Id. 195 : 5 Day, 260 ; 7 Conn. 116; 14 Ala. 382 ; 6 Cow. 673 ; 3 Hawks. 105 ; 14 Ind. & R. 352 ; 2 Bibb. 286 ; 3 Id. 195 : 5 Day, 260 : 7 Conn. 116; 14 Ala. 382 ; 6 Cow. 673 ; 3 Hawks. 105 ; 14 Ind. 589. k : B. N. P. 295. 1-3 C. & P. 589^ and^see 17 Conn. 467 ; 18 Me. 372 ; 14 Mass. 387 ; 5 Cox Cr. Cai. 146. Hl-2 Met. 342 ; i Greenl. Ev. J3 461 ; 20 Ohio, 18. n-4 St. Tr. 693 ; 4 Esp. 102 ; but see i Greenl. Ev. { 461 ; 8 Ind. 408. 0-2 Stark. 151, 241 ; Stark. Ev. pt. 4, jjjj 1758; i Phil. Ev. 229. p-9 Watts, ia* EVIDENCE. 437 hand visible on her left arm. f These points ought to be carefully examined in order to form a correct opinion. The first question is : Is the fact possible ? If so, are there any cir- cumstances which render it impossible ? If alleged facts are impossible, the witness ought not to be credited. For example : if a man swears that he saw the deceased shoot himself wilh his own pistol, and, upon examination, the ball which killed him is found too large to enter the pistol, the witness ought not to be credited.* So, also, if one swears that another has committed an impossible crime. COMPETENCY. See CREDIBILITY; WIT- NESSES, below. COMMUNICATIONS, CONSULTA- TIONS, CONFERENCES, CONVER- SATIONS, AND THE PROPOSI- TIONS made at and prior to the contract are no part of the contract, for no parol evidence will be allowed to be given to alter, contradict, or vary a written instrument. 11 CONCLUSIVE EVIDENCE is that which, while uncontradicted, satisfies the judge or jury. That which cannot be controlled or contradicted by any other evidence. That which establishes the fact, as in the instance of conclusive presumptions. The record of a court of common law jurisdiction is conclusive as to the facts therein stated. 1 Evidence may be conclusive for some purposes, but not for others. CONCLUSIVE PRESUMPTIONS. See PRE- SUMPTIONS, below. CONFESSIONS (voluntary declarations made by a person who has committed a crime or misdemeanor to another, of the agency or partici- pation which he had in the same. An admission or acknowledgment by a prisoner, when ar- raigned for an offence, that he committed the crime with which he is charged. Judicial con- fessions are those made before a magistrate, or in court in the due course of legal proceedings. Extra-judicial confessions are those made by the party elsewhere than before a magistrate, or in the open court). Voluntary confessions are admissible in evi- dence ;> but a confession is not admissible in evidence where it is obtained by temporal in- f-i4 How. St. Tr. 1-523. g-i Stnrkie Ev. 305. h- i S. & R. 27, 464; Addis. 361; 2 Dallas, 172; i Yeates, 140; 12 Johns. 77: 20 Id. 49; 3 Conn. 9; n Mass. 30; 13 Id. 443 ; i Bibb. 271 ; 4 Id. 473 ; 3 Marsh, 333 ; i'M. 6 S. 21 ; i Esp. 53 ; 3 Campb. 57. i-2 Wash. 64 ; 2 Hen. & M. 55 ; 6 Conn. 508. j-2o Ga. 60; 12 La. An. 805 : 28 Ala. (N. S.) 9 ; 3 Ind. 552 ; 30 Miss. 593. li-i Mood. Cr. Cas. 465 ; Russ. & R. Cr. Cas. 152, 492 ; 4 C. & P. 570; 5 Id. 539; 6 Id. 146,353; 7 Id. 579; 8 Id. 140, 187; 4 Hairing. 503; 37 N. H. 175, 196; 5 Fla. 28^; 10 Ind. 106; 10 Gratt. 734 ; see 18 N. Y. 9; 29 Pcnn. St. 425- I-' Mood. Cr. Cas. 410; 5 C. & P. 539: 7 Id. 302: 8 Id. 140, 733; 2 Craw. & D. Cas. Ir. 347; 6 Cox Cr. Cas. 243; 2 Carr. & K. 225; i Dev. 259. m- 1 C. & P. 97, 129 ; 4 Id. 543 ; 7 Id. 776 ; 8 Id. 734 ; Russ. & R. 153; i T. R. Ir. 177; i Leach Cr. Cas. 291 . 2 Id. 5597 19 Pick. 491 ; i Gray, 461 ; i Strobh. 155: 9 Rich. 428 ; 14 Gratt. 652 ; 19 Vt. 116 ; but see 5 Jones, 432 ; 32 Miss. 382 ; 2 Ohio St. 583. n-i Mood. Cr. Cas. 197; Jebb. Cr. Cas. Ir. 15 : 16 Mass. 161 ; 8 Ohio St. 98. 0-Phil. Ev. 430; 4 C. & ?. ?2 3 ; Jebb. Cr. Cas. 15, ducement, by threats, promise, or hope of favor held out to the party in respect of his escape from the charge against him by a person in authority, 1 where there is reason to presume that such person appeared to the party to sanc- tion such threat or inducement j 1 but it is ad- missible if such inducements proceed from a person not in authority over the prisoner, 1 " or if the inducement be spiritual merely ; n and the temporal inducement must have been held out by the person to whom the confession is made,* unless collusion be expected. P A confession is admissible, though elicited by questions put to the prisoner by a constable, magistrate, or other person,' even though the question assumes the prisoner's guilt, or the confession is obtained by trick or artifice, r and although it appears that the prisoner was not warned that what he said would be used against him." A statement not compulsory, made by a party not at the time a prisoner under a criminal charge, is admissible in evidence against him, although it is made upon oath;' otherwise, if the answers are compulsory. A confession may be inferred from the conduct and de- meanor of a prisoner when a statement is made in his presence affecting himself/ unless such statement is made in the deposition of a wit- ness, or examination of another prisoner before a magistrate. w Where a confession has been obtained, or an inducement held out under circumstances which would render a confession inadmissible, a con- fession subsequently made is not admissible in evidence ; unless from the length of time inter- vening, from proper warning of the conse- quences, or from other circumstances, there is reason to presume that the hope or fear which influenced the first confession is dispelled, 1 and the motives proved to have been offered will be presumed to continue, and to have produced the confession, unless the contrary is shown by clear evidence, and the confession will be re- jected.* Under such circumstances contempo- raneous declarations of the party are receivable in evidence, or not, according to the attending circumstances ; but any act of the party, though done in consequence of such a confession, is admissible, if it appears from a fact, thereby p-4 C. & P. 550. |-i Mood. Cr. Cas. 27, 452, 465 ; Jebb. Cr. Cas. 15; Crawf. & D. Cr. Cas. 115: 2 Id. 1=2; 5 C. & P. 312; 7 Id. 569, 832; 8 Id. 179, 621; 14 Ark. 556; 19 Id. 156; 23 Ala. (N. S.) 28. r-i Mood. Cr. Cas. 28: Phil. Ev. 427; 33 Miss. 347: see 8 C. & P. 622. 8-8 Mod. 89 ; i C. & P. 261 : 5 Id. 312, 318 ; S Id. 179; 7 Id. 487; 9 Id. 124. t-2 Mood. Cr. Cas. 45; i C. & K. 657 ; 2 Stark. 366 ; 5 C. & P. 530 ; 9 Id. 240; i Mood. & R. Cr. Cas. 297 : 7 I roc. ->6; 5 Rich. 391 : a Park. Cr. Cas. 663 ; see 8 Carr. & P. 250. u-i Den. Cr. Cas. 236 ; 4 Campb. 10 ; 6 C. & P. 161, 177; 15 N. Y. 384; 3 Wis. 823; 2 Park. Cr. Cas. 663. y-s C. & P- 332 ; 7 Id. 832 ; 12 Met. (Mass.) 235 ; 21 Pick. 515 . see 32 Ala. (N.S.)s6o. w-i Mood. Cr. Cas. 347; Mood. & M. 336 ; 6 C. & P. 164. x-2 Lew. Cr. Cas. 123 ; 4 C. & P. 225 ; 5 Id. 318, 535 ; 6 Id. 404 : i Wheel. Cr. Cas. 67 ; 5 Halst. 163 ; 3 Jones, 443 ; 5 Rich. 391 ; 24 Miss. 512. y-i Dev. 259 ; 12 Miss. 31 ; 5 Cush. 605 ; 18 Conn. 166; 2 Leigh. 701 ; 32 Ala. (N. S.) 560; i Sneed. 75, and see 6 C. & P. 404 ; 5 Jones, 315 ; it L*. An. 895, 438 EVIDENCE. discovered, that so much of the confession as immediately relates to it is true. 1 A confession made before a magistrate is ad- missible, though made before the evidence of the witness against the party was concluded.' Parol evidence, precise and distinct, of a statement made by a prisoner before a magis- trate during his examination, is admissible, though such statement neither appears in the written examination, nor is vouched for by the magistrate ; b but not if it is of a character which it was the duty of the magistrate to have noted. Parol evidence of a confession before a magistrate may be given where the written examination is inadmissible through infor- mality.* 1 The whole of what the prisoner said must be taken together. 6 A prisoner's confession, when the corpus delicti is not otherwise proved, is insufficient to warrant his conviction/ CONFIDENTIAL COMMUNICA- TIONS. AGENTS. See INTERPRETERS, below. ATTORNEYS, COUNSELLORS, AND SOLICITORS AT LAW, and members of the legal profession generally, are not competent to testify to confi- dential communications. The confidential counsellor, solicitor, or attorney of any party cannot be compelled to disclose papers deliv- ered, or communications made to him, or let- ters, or entries made by him in that capacity ;P nor will he be permitted to make such commu- nications against the will of his client.i The privilege extends to all matters made the sub- ject of professional intercourse, without regard to the pendency of legal proceedings, 11 and as to matters discovered by the counsellor, etc., in consequence of this relation. 1 A barrister's clerk is considered as standing in the same re- lation as an attorney ;* but not a student at law in an attorney's office. The cases in which communications to coun- sel have been holden not to be privileged may be classed under the following heads : When the communication was made before the attor- ney was employed as such ; T after the attorney's employment has ceased ; w when the attorney z-i Leach Cr. Cas. 263, 386 ; 9 C. & P. 364 ; i Mood. Cr. Cas. 338; Russ. & R. Cr. Cas. 151 : 9 Pick. 406; 32 Miss. 382; i Sneed, 75 ; 7 Rich. 327. n-4 C. & P. 567; 5 Id. 163. b-Phill. Ev. 447; 2 Russ. Cr. (3d Ed.) 876-878; i Mood. Cr. Cas. 338; 7 C. & P. 188. c-i Greenl. Ev. 227, . d-i Lew. Cr. Cas. 46 ; 4 C. & P. = 50, . . 15 Id. 162; 6 Id. 183; i Mood. & M. 403; Husb. 239. e-2 Carr. & K. 221 ; a Ball & B. 297 ; 2 C. \: P. 629 ; T Id. 603 ; 4 Id. 215, 397; o Leigh. 633 ; 2 Hall. 86 ; 5 Miss. 364 ; see 3 Park Cr. Cas. 256; 26 Ala. N. S. 107. f-i Hayw. 455; 5 Halst. 163, 185; 18 Miss. '!<), 17111.426; 2 Texas, 79, contra, Russ. & R. Cr. Cas. 481, 509; i Leach Cr. Cas. 311 ; 3 Park. Cr. Cas. 411 ; ti Ga. 225. p-Mylne & K. 101 ; 4 B. & Ad. 876 ; i M. & W. 100 ; 4 T. R. 733 : 6 Carr. & P. 728; 2 Cow. '95: 7 Johns. Ch. 25 ; 14 Johns. 391; 8 Mass. 370; 12 Pick. 89 ; 16 Me. 329 ; 23 Mo. 474 ; n Wheat. 295. q- i Mylne & K. 102 ; 4 T. R. 756, 759 ; 12 J. B. Moore, 5*0 ; 2 Atk. Ch. 524 ; 3 Barb. Ch. 528 ; 8 Mass. 370. r- 9 Beav. Rolls. 16; n Id, 59; 2 Brod. & B. 4 ; 3 Bing. (N. C.) 235; 5 Carr. & P. 592 ; 6 Madd. Ch. 47 ; i De Gex. & S. 12 ; 3 Watts, 20; 22 Penn. St. 89 ; 12 Pick. 89; 38 Me. 581; 5 Vt. 47; 24 Miss. 134: but see 28 Vt. 701, 750. m-t Esp. 52 ; see i Mylne & K. 102 : 3 was consulted because he was an attorney, yet was not acting as such ;* where his character of attorney was the cause of his being present at the taking place of a fact, but there was nothing in the circumstances to make it amount to a communication ;* when the matter com- municated was not, in its nature, private, and could in no sense be termed the subject of a confidential communication ;* when the things disclosed had no reference to professional em- ployment, though disclosed while the relation of attorney and client subsisted ; when the at- torney made himself the subscribing witness ; b when he is a party to the transaction ; when he was directed to plead the facts to which he is called to testify. 4 The rule of privilege does not extend to confessions made to confidential friends', clerks, 1 bankers,* nor stewards. 11 Attorneys, clergymen, or physicians, with the consent of the party making confidential com- munication, may Justify concerning the same. CLERGYMEN, concerning any confessions made to them in the course of discipline en- joined by the church, are privileged in some States, but not by the common law. 1 INTERPRETERS! AND AGENTS* are consid- ered as standing in the same relation as an at- torney. HUSBAND AND WIFE are excluded from giv- ing testimony for or against each other when either is a party to the suit, or interested. And neither is competent to prove a fact directly tending to criminate the other. This rule is founded partly on their identity of interest, and partly, perhaps chiefly, on the policy of the law, which aims to protect the confidence be- tween man and wife, that is essential to the comfort of the married relation, and througli that to the good order of society. Whether, or not, the disability of husband and wife may ever be removed by consent of the other is a matter of dispute. 1 It does not make any difference which party is called upon as a witness, 01 or when the relation commenced, or whether i.t has terminated. It is not removed by death, or by the dissolution of the marriage relation. Mylne & C. 515; Story Eq. PI. ? 601 ; 13 Ga. 260; n> Ala. (N. S.) 254; 21 Ga. 301. t-2 C. & P. 195 . I Id. 545 ; 5 Id. 177 ; 5 Man. & G. 271 ; 8 Dowl. & R. 726 ; 12 Pick. 93 ; 3 Wend. 337; i6N. Y. 180; 5 Cal. 450. 11-7 Cush. 576. v-i Ventr. 197; 2 Atk. Ch. 524; see 38 Me. 581. w-4 T. R. 431; 12 La. An. 91. x-4 T. R. 753 ; 4 Mich. 414; 14111.89; 7 Rich 459. y-Cowp. 846; 2 Ves. Ch. 189; 2 Curt. Eccl. 866, 29 N. H. 163. z-7 East. 357; 2 Brod. & B. 176; 3 Johns. Cas. 196. R-Peake, 77. b-io Mod. 40; 2 Curt. Eccl. 866; 3 Burr. 1687. c-3 Wis. 274 ; Story Eq. PI. \ 601. d-7 Martin (N. S.) 179. C-4 T. R. 758 ; i Caines, 157 ; 3 Wis. 456 : 14 HI. 89. f-3 Campb. 337 ; i C. & P. 337- - C. & P. 325. h-2 Atk. Ch. 524; n Price, 455; consult Starkie Ev. Index; i Greenl. Ev. $3 237-250, 337-342; 17 Am. Jur. 304. 1-4T. R. 753; 2 Skinn. 404; 15 Mass. 161. |-4 T. R. 756; 3 Wend. 337; 4 Munf. 273; Tlnd. 202 ; i Pet. C. C. 356. k-2 Stark. 239 ; 2 Beav. Rolls, 173; i Phill. Ch. 471, 687. l-i Ves. Ch. 49; i Wheat. Cr. Cas. 479 ; 4 T. R. 679 ; 3 C. & P. 558 ; i Greenl. Ev. g 340. in-Ry. & M. 352. 11-3 Carr & P. 358. O- 13 Pet. 209; 3 Dev. & B. no; I Barb. .392; 6 East. 192; i Ry. & M. 138; i C. & P. 364; and see 13 Pick. 445^ Mon. 224. ' Vt. 506 M. 198; I ; 4 Penn St. 364; 5 Ala. (N. S.) 224; i B. EVIDENCE. 439 Some exceptions to this rule? are admitted out of necessity for the protection of husband and wife against each other, and for the sake of public justice.' PHYSICIANS, concerning any communication as to matters confided to them in course of their profession, provided this privilege be extended to them by statute and not otherwise.' But a physician consulted as to the means of doing an unlawful act, such as procuring an abortion, is not excused from answering." The statute does not prevent the physician of a deceased person giving evidence in a testamentary cause, con- cerning the probate of the will of such decedent. The statute does not establish a general and absolute prohibition of such testimony in all cases, but secures a personal privilege to the party, which may be waived; and if such priv- ilege be waived, the witness cannot object to testify.' CONJECTURE, arising from evidence too weak or remote to cause belief, is of too slight a degree to have any weight, being merely a probability without any demonstration of its truth. COPIES cannot be given in evidence un- less proof is made that the originals from which they are taken are lost, or are in the power of the opposite party ; and, in the latter case, that notice has been given him to produce the original." A copy to be evidence must be a true tran- script of the original writing or record. The papers should be exchanged and read alter- nately, but this is not strictly necessary.* See EXAMINED COPY; ORIGINALS, below. CREDIBILITY. In deciding upon the credibility of a witness, it is always pertinent to consider whether he is capable of knowing thoroughly the thing about which he testifies ; whether he was actually present at the transac- tion ; whether he paid sufficient attention to be qualified to make a correct report of it; and whether he honestly relates the affair as fully as he knows it, without purpose or desire to de- ceive, add to, or suppress the truth. With this may be considered his interest, if any, and qualities of mind and character. The credibility of witnesses is a question for the jury to determine, as their competency is for the court.* See WITNESSES, below. CRIMINATE. A witness cannot be com- pelled to answer any question which has a tendency to expose him to a penalty, or to any kind of punishment, or to a criminal charge.* p-i Greenl. Ev. \ 343. |-Bac. Abr Ev. (A.): i Greenl. Ev. $ 334-347; i Phil!. Ev. 69-81, and Cowen and H. notes n, n, 53-74; Stark Ev. Pt. IV, 706-715 ; i Ves. Ch. 40; i Jebbs. & S. 563; Ry. & M. Cr. Cas. 253. r-n Hargrave St. Tr. 243; 20 Howell S. & Tr. 643 ; i C. & P. 97 ; 3 Id. 518 ; see 14 Wend. 637. 8-21 Wend. 70. t-i Bradf. Surr. 321. tl-i Greenl. Ey. ? 508 ; 3 Bouv. Inst. H, 3055. v-2 Taunt. 470; i Stark. 183; 4 Campb. 373 ; i C. & P. 578. W-Best Ev. % 76-85 ; i Greenl. Ev. $ 49, 425; n M. & W. 216. x-3 Bouv. Inst. nn. 3209, 3212 ; 4 S. & Tr. 6; 6 Id. 649 ; 10 Howell S. & Tr. 1090; 16 Id. 1149; 24 Id. 720; 2 Dougl. 593; 2 Ld. Raym. 1088; 16 Ves. Ch. 242; a Swanst. 316; i C. An accomplice admitted to give evidence against his associates in guilt is bound to make a full and fair confession of the whole truth respecting the subject-matter of the prosecu- tion.' But he is not bound to answer with re- spect to his share in other offences, in which he was not concerned with the prisoner. 1 CROSS-EXAMINATION. See LEADING QUES- TIONS ; and WITNESSES, below. CUSTOM. Evidence of custom or usage is never admissible to oppose or alter a general principle, or rule of law, so as, upon a given state of facts, to make the legal rights and lia- bilities of parties other than they are by law.* With respect to a custom or usage of trade, however, it is sufficient if it appears to be known, certain, uniform, reasonable, and not contrary to law. b But if not directly known to the 'parties to the transaction it will still be binding upon them if it appear to be so general and well established that knowledge of it majr be presumed. DAMAGE. He who it is proved caused the damage is bound to repair it ; and if proven he has done it maliciously he may be compelled to pay even beyond the actual loss. Where it is shown that the damage occurred by accident, without blame to any one, the loss is borne by the owner of the thing injured; as, if a horse run away with his rider, without any fault of the latter, and injure the property of another person, such injury is the loss of the owner of the thing. When damage happens by the act of God, or inevitable accident, as by tempest, earthquake, or other natural cause, the loss must be borne by the owner. d DEATH. Persons who have been once shown to have been in life are presumed thus to continue until the contrary is shown ; so that it lies on the party asserting the death to make proof of it.* But proof of a long continued absence, unheard from and unexplained, will lay a foundation for presumption of death. The general rule is, that the presumption of the du- ration of life ceases at the expiration of seven years from the time when he was last known to be living/ Such continued absence for seven years from the particular State of his residence, without showing an absence from the United States is sufficient.* See IDENTITY, below. DECLARATIONS are statements made by a party to a transaction, or by one having an interest in the existence of some fact in relation to the same. Declarations regarded as original evidence, & P. ii ; i Wen. Cr. Cas. 236; i Cranch. 144; a Yerj. no; 5 Day, 260; 2 Nott & M'C. 13 ; 6 Cow. 254; I Wend. 598; i Johns. 498; 12 S. & R. 284. y-io Pick. 477; 2 Stark. 12, n. 3-9 Cow. 721, note a; 2 C. & P. 411. -2 T. R.327; 19 Wend. 252; 6 Met. (Mass) 303; 6 Pick. 131 : 6 Binn. 416. fo-3 Wash. C. C. 150; 7 Pet. i ; 5 Binn. 287 ; 8 Pick. 360. C-i Caines. 43 : 4 Stark. 452. d-See Com. Dig. Saycr Dam.. Sedgw. Dam. e-2 East. 312; 2 Rolle, 461. f-i Phillips Ev. Cowen &H. Ed. 197; 2 Cow. & H. notes, 489 ; i Greenl. Ev. J 41 ; s Johns. Ch. 263 ; 5 B. & Aid. 86. p-io Pick. 515; i Rawle,373; * A. 1C. Marsh. 278; j Penning. 167; 2 Bay, 476. EVIDENCE. and admissible as such : I . When the fact that the declaration was made is the point in ques- tion.* 2. Including expressions of bodily feel- ing where the existence or nature of such feel- ings is the object of inquiry; as expressions of affection in actions for crim. con. ; h representa- tions by a sick person of the nature, symptoms, and effects of the malady under which he is la- boring; 1 in prosecutions for rape, the declara- tions of the woman forced.J 3. In cases of pedigree, including the declarations of deceased persons nearly related to the parties in question ; k family records. 1 4. Cases where the declara- tion may be considered as a part of the res jrestiej* including the entries made by those whose duty it was to make such entries." Declarations regarded as secondary evidence or hearsay, and yet admitted in some cases : I. In matters of general and public interest, com- mon reputation being admissible as to matters of public interest ; but reputation amongst those only connected with the place of business in question, in regard to matters of general interest merely ,P and the matter must be of a quasi pub- lic nature.* 2. In cases of ancient possession, where ancient documents are admitted, if found in a place in which, and under the care of per- sons with whom such papers might reasonably be expected to be found, r if they purport to be a part of the transaction to which they relate. 8 3. In cases of declarations and entries made against the interest of the party making them, whether made concurrently with the act or sub- sequently ;* but such declarations and entries, to be so admitted, must appear or be shown to be against the pecuniary interest of the party making them. 4. Dying declarations made in cases of homicide, where the death of the deceased is the subject of the charge, and the IC-4 Mass. 702 ; 5 Id. 444 ; 9 Johns. 45; ii Wend, no; 1 Conn. 387; 2 Carnpb. 511 ; 2 B. & Ad. 845: i Mood. & R. 2, 8 ; 9 Bingh. 359 ; see i Phill. Ev. 188 ; 4 Bingh. (N. 00489; i Brod. & B. 269. h-2 Stark. 191 ; i B. 6 Aid. 90 ; 8 Watts, 355 ; see 4 Esp. 39 ; 2 C. & P. 22; 7 Id. 198. i-6 East. 188 ; 4 M'Cord, 38 ; 8 Watts, 355 ; see o C. & P. 275 ; 7 Cush. 581 ; 30 Ala. (N. S.) 562 ; 23 Ga. 17 ; 27 Mo. 279 ; 30 Vt. 377. J-i Russ. Cr. 565 ; 2 Stark. 241 ; 18 Ohio, 99. K-Cowp. 591 ; 13 Ves. Ch. 140,514: 2 Bingh. 86; 3 Russ. & M. 147; 2 C. & K. 701 ; i Cr. M. & R. 3:9; i De Gex. & S. 40; i How. 231 ; 4 Raud. 607 ; 3 Dev. & B. 91 : 18 Johns. 37 ; 2 Conn. 347; 4 N. H. 371. 1-4 Campb. 401 : 8 B. & C. 813; s Clark & F. Ho. L. 24; n Id. 85; 7 Scott (N. R.) 141; 2 Dull. 116; i Penn. 81.381; 8 Johns. 128; and see ii East. 503; 13 Vcs. Ch. 514; i Pet. 328 ; 5 S. & R. 251 ; 4 Mas. C. C. 268. 111-36 N. H. 167, 353; 16 Texas, 74; 6 Fla. 13; 41 Me. 149,432 ; 2063.452. n- See i Greenl. Ev. jig 115, 123; i Smith L. Cas. Hare & W. Ed. 142. 0-14 East. 329, ., i M.&S. 686; 4 Campb. 416; 6 M. & W. 234; 19 Conn. 250. p-i Crompt. M. & R.020 ; 3 B. & Ad. 245. q-i East. 357; 14 Id. 329, .; sT. R. 121 ; 10 B. & C. 657; 3 Campb. 288; i M.&S. 77; 2 Id. 494 ; i Taunt. 261 ; i M. & W. 416 ; see WITNESS, r-2 Bin^h. (N. C.) 183 ; i Dowl. Parl. Cas. 297 ; 12 M. & W. 205 ; 8 Q. B. 158 ; it Id. 884 ; i Price, 225 : 2 Id. 303 ; 5 Id. 312 ; 4 Wheat. 213 ; 5 Pet. 319 ; 9 Id. 663 ; 5 Cow. 221 ; 7 Wend. 371 ; 2 Nott. & M'C. 55, 400; 4 Pick. 160. S-i Greenl. Ev. 144. t-i Taunt. 141 ; 3 Id. 303; 4 Id. 16; i Campb. rod. & B. 132 ; 3 B. & y Eq. Ev. 221. 85; 10 Ea . . . . 367 ; 3 Id. 457 ; 2 T. R. 53 ; 3 Brod. & B Ad. 893, and see t Phill. Ev. 293; Gresle U-i C. & P. 276; ii Clark & F. Ho. L. . 109; 2 Jac. & W. 780 ; 3 Bingh. (N. C.) 308, 320. v-2 B. ft C. 605 ; f teach Cr. Cas, y6j, 378 ; a M. & R. 53 ; circumstances of the death are the subject of the dying declarations, are admissible' if made under a sense of impending death." The de- clarations may have been made by signs,* and in answer to questions.' The substance only need be given by the witness,* but the declara- tion must have been complete,' and the circum- stances under which it was made must be shown to the court. b Declarations to be admissible as original evi- dence must have been made at the time of doing the act to which they relate. In order to their admission as secondary evi- dence, the declarant must be dead, d and the declaration must have been made before any controversy arose. 8 It must appear that the declarant was in a condition or situation to know the facts, or that it was his duty to know them. f The declarations of an agent respecting a subject-matter, with regard to which he repre- sents the principal, bind the principal,' if made during the continuance of the agency with re- gard to the transaction then pending; 11 and similar rules extend to partners' declarations. 1 When more than one person is concerned in the commission of a crime, as in cases of riots, conspiracies, and the like, the declarations of either of the parties, made while acting in the common design, are evidence against the whole;! but the declarations of one of the rioters, or conspirators, made after the accomplishment of their object, and when they no longer acted to- gether, are evidence only against the party making them. k DEMONSTRATION is the highest at- tainable degree of evidence. It is such certain proof as excludes all possibility of error. It establishes a fact or proposition beyond a possi- 2 Johns. 31, 35 ; 15 Id. 286; i Meigs. 265 ; 4 Miss. 665; see 4 C. & P. 233. w-2 Leach Cr. Cas. 563; 6 C. & P. 386, 631 ; 7 Id. 187; i Mood. Cr. Cas. 97; 2 Id. 135; 5 Cox Cr. Cas. 318 ; ii Ohio, 424 ; 2 Ark. 229 ; 3 Cush. 181 : o Humph. 9. 24. sc-i Greenl. Ev. JJ 161, f. y--j C. & P. 238; 2 Leach. Cr. Cas. 563 ; 3 Leigh. 758. z- IT Ohio, 424; 8 Blackf. 101. n-3 Leigh. 786. b-i Stark. 521; 3 C. & P. 629 ; 6 Id. 386; 7 Id. 187; i Hawks. 444 ; 2 Ashm. 4, 169 ; 2 Gratt. 594 ; 16 Miss. 401 : 2 Hill (N. C.)6ig. c-3 Conn. 250; 19 Id. 250; 16 Miss. 722 ; 9 Paige Ch. 611 ; 3 Ga. 513; 23 Id. 193; 8 Met. (Mass.) 436 ; 13 Id. 237, 544 ; 6 Me. 266 ; 34 Id. 310; 8N. H. 40; 36 Id. 353; 148. & R. 275; 8 Watts, 479 ; 5 T. & R. 512 : 2 Bingh. 99 ; 9 Id. 349 ; i B. & Ad. 135; and see i Met. (Mass.) 242; 3 Id. 199: 4 Fla. 104 ; 3 Humph. 315 ; 24 Vt. 363 ; 21 Conn. 101. For cases of entries in books, see i Binn. 234 ; 8 Watts, 544 ; 4 S. & R. 3, 5 ; o Id. 285 ; 13 Mass. 427. d-n Price, 162 ; i Cafr. '& K. 58 ; 12 Vt. 178. 6-13 Ves. Ch. 514; 3 Campb. 444 ; 4 Id. 401 ; 10 B. & C. 657 ; 4 M. & S. 486; i Pet. 328. f-2 Jac. & W. Ch. 464 ; 10 East. 109; 15 Id. 32; o B. & C. 935: 10 Id. 317; 4 Q. B. 137; 9 Smith L. Cas. Hare & W. Ed. 193, . f? -Story Ag. 3J 134,137; i Phill. Ev. 381 ; 2 Q. B. 212; 3 Harr. & J. 299; 20 N. H. 165 ; 31 Ala. (N. S.) 33; 6 Gray, 450. h-8 Bingh. 451; 10 Ves. Ch. 123; 4 Taunt. 519; 5 Wheat. 336; 6 Watts, 487; 8 Id. 39; 14 N. H. 101 ; 4 Cush. 93 ; 30 Vt. 29; ii Rich. 367; 2463.211; 31 Ala. (N, S.) 33 ; 7 Gray, 92, 345 ; 4 E. D. Smith, 165 ; see 3 Rob. 201 ; 8 Met. (Mass). 44 ; 19 111. 456. l-i Greenl. Er. 112; 31 Ala. (N. S.J26; 36 N. H. 167. |- 3 B. & Aid. 566 ; i Stark. 81 ; 2 Pet. 358; jo Pick. Mass. 497 ; 30 Vt. loo ; 33 Miss. 405 ; Q Cal. 593. It- 2 Stark. Ev. 235; 2 Russ. Cr. 572 ; Rose. Cr. Ev. 324 ; i 111. 269; i MooC & M. 501 ; and see 2 C. & P. 232 ; 7 Gray, i, 46. EVIDENCE. 441 Mlity of doubt It shows the contrary position to be absurd or impossible. It is the indubita- ble evidence of the senses, and of reason. DEPOSITIONS are written declarations, un: er oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine, or upon written interroga- tories. The difference between a deposition and an affidavit, is the requirement of notice in the former. 11 Depositions were not formerly allowed in common law courts, but were admitted from necessity where the oral testimony of a witness could not be obtained. In courts of equity this is generally the only testimony which is taken. In most States both oral testimony and depositions are used. In criminal cases depositions cannot be used without the consent of the defendant, who can- not by constitution be deprived of the right of meeting his accusers face to face. Statutory provisions are made in many States for taking depositions by the accused. The cases in which depositions maybe used, the time of taking, before whom taken, notice of taking, forms, directions and proceedings in laking, transmission, opening, exception to, and their introduction as evidence, are the subjects of special statutory regulation in all the various States. DIRECT EVIDENCE is that means of proof which tends to shuw the existence of a fact in question without the intervention of the proof of any other fact. Evidence is termed direct, which applies immediately to the fact to be proved without any intervening process, as distinguished from circumstantial, which applies immediately to collateral facts supposed to have a connection, near or remote, to the fact in controversy. It is that evidence which, if believed, estab- lishes the truth of the fact in issue, and does not rise from any presumption. Evidence is direct and positive when the very facts in dis- pute are communicated by those who have the actual knowledge of them by means of their senses.? In one sense there is but little direct or positive proof, or such proof as is acquired by means of one's own senses ; all other evi- dence is presumptive; but in common accepta- tion, direct and positive evidence is that which is communicated by one who has actual knowl- edge of the fact. DISCREDIT. In general a party may discredit a witness called by the opposite party who testifies against him, by proving that his n-4 Kas. 124. 0-3 Greenl. Ev. gii. p-i Phill. Ev. 116; i Stark. Ev. 19. q-i Mood. & R. 414; 3 B. &C. 746. r-2 Campb. 556 ; 2 Stark. 334 ; i Nev. & M. 34 ; 4 B. & A. 193; i Phill. Ev. 229 ; Roscoe Civ. Ev. 06 tt-z Salk. 658; 19 Johns. 49 ; 5 Taunt 707 ; 2 B. & Aid. 301 ; 8 Miss. 428 ; 2 McLean C. C. 69 ; i Met. Mass. 59 ; 21 Pick. 486. t-t Stark. Ev. 1757; i Grcenl. Ev. $ 46). ll-t Phill. Ev. 242. V-3 Mod. 141. W-T Ld.' Raym 730; B. N. P. 232. x-s M. & W. 109; 3 East. 546; 7 Johns. 20; i Hen. & M. 449; i Dana, 434. y- } f . for example, I have claimed a right of way over lilackacre, and a final judgment has been rendered against me, and I afterwards purchase Blackacre, this fer>t decision thall not be a bar to my recovery when I character is such as not to entitle him to credit or confidence, or any other fact which shows he is not entitled to belief. It is clearly set- tled, also, that the party voluntarily calling a witness, cannot afterwards impeach his charac- ter for truth and veracity.' But if a party calls a witness who turns out unfavorable he may call another to prove the same point.' See CHARACTER, above; WITNESSES, Im- peachment of, below. DISCREPANCY is material where there is such a difference between a thing alleged and a thing offered in evidence as to show they are not substantially the same ; as, when the plaintiff in his declaration for a malicious arrest averred that " the plaintiff in that action did not prosecute his said suit, but therein made default; " and the record was "that the plaintiff obtained a rule to discontinue." A discrepancy is immaterial where it does not materially affect the cause, as where a declara- tion stated that a deed bore the date in a cer- tain year of our Lord, and the deed was simply dated " March 30, I7oi." s DISINTERESTED. See WITNESSES, below. DOCUMENTS. See PUBLIC DOCUMENTS, below. DYING. See DECLARATIONS, above. EFFECT OF EVIDENCE. As a general rule, a judgment rendered by a court of competent jurisdiction directly upon a point in issue, is a bar between the same parties ; and privies in blood, as an heir T or privies in estate," stand in the same situation as those whom they represent; the verdict and judg- ment may be used for or against them, and is conclusive. But in order to constitute this bar, and to make a matter res judicafa, there must be a concurrence of the four conditions follow- ing : i. Identity of the thing sued for ;* 2. Identity of the cause of action;' 3. Identity of persons, and of parties to the action: * 4. Identity of the quality in the persons for or against whom the claim is made.* EXAMINATION (Preliminary) is made concerning a criminal offence, of the grounds which constitute the accusation against a per- son arrested on a criminal charge with a view of discharging the person so arrested, or to secure his appearance for trial by the proper court, and to preserve the evidence relating to the matter. This is accomplished by bringing the person accused, together with witnesses, before the magistrate (usually a justice of the peace), who hears the case for the purjxwes above stated, taking down in writing the evi- sue as owner of the land, and not for an easement w it, which I claimed as a right appurtenant to my laud Whiteacre. 6 Wheat. 109 ; 2 Gall. C. C. 216; 17 Mass. 237; 2 Leigh. 474; 8 Conn. 268 ; i Nott & M'C. 329; 108. &R.282, 17 Id 319; 3 Pick. 429. z-7 Cranch 271 ; i Wheat 6; 14 S. & R. 435 , 4 Mass. 441 ; 2 Yerg. 10; 5 Me. 410; 8 Gratt. 68; 16 Mo. 168 ; 1263.271; 21 Ala. (N. S.) 813; 4 Demo, 30.1 ; 23 Barb. 464. This rule is a necessary consequence to the rule of natural justice, ne inauditus condtninetur. H-For example, ax action by Peter to recover a horse, and a final judgment against him, is no bar to an action by Peter, administra- tor of Paul, to recover the same horse. 5 Co. a, &. ; 4 T. R. 490 ; 6 Muun. & G. 164 ; 4 C. B. 884. ' EVIDENCE. dence of the witnesses, and any statements which the prisoner may see fit to make. If no probable cause of the guilt of the prisoner ap- pears, he is discharged from arrest. If suffi- cient cause of suspicion appears to warrant putting him on trial, he is committed, or re- quired to give bail or enter into a recognizance to appear at the proper time for trial. The witnesses are also frequently required to recog- nize for their appearance, though in ordinary cases only their personal recognizance is re- quired. The magistrate certifies the minutes of the evidence which he has taken, and it is .delivered or transmitted to the court before whom the trial is to be had. See LEADING QUESTIONS, and WITNESSES, below. The examination should be taken and com- pleted as soon as the nature of the case will admit.* The prisoner must not be put upon oath (except where by statute he is competent to testify, and then only when he voluntarily consents), the witnesses must. b The prisoner has no right to the assistance of an attorney, but the privilege is granted in the discretion of the magistrate. The magistrate's return and certificate are conclusive evidence, and exclude parol evidence of what the prisoner said on that occasion with reference to the charge." 1 See CONFESSIONS, above. EXAMINATION, CROSS. See WITNESSES, below. EXAMINATION, DIRECT. See WITNESSES, below. EXAMINATION IN CHIEF. See WITNESSES, below. EXAMINATION, REDIRECT. See WITNESSES, below. EXAMINED COPIES, or papers which are copies of records, public books or registers, which have been compared with the originals, 6 are admitted in evidence because of the pub- lic inconvenience which would arise if such records, public books, or registers, were re- moved from place to place, and because any fraud or mistake made in the examined copy would be so easily delected.' But in an answer in chancery on which the defendant was in- dicted for perjury, or where the original must be produced in order to identify the party by proof of handwriting, an examined copy would not be evidence.* See COPIES, above. EXEMPLIFICATION. See title, AUTHENTI- CATION, ante. EXPERTS. Those who are skilled by ex- perience. Witnesses who are admitted to testify on account of their peculiar knowledge of some art or science requisite or of value in settling the point in issue. Such persons are selected by the court or parties in a cause, on account of their -Cro. Eliz. 829 ; I Hale PI. Cr. 585 ; a Id. 120. b- t Phill. Ev. 106. C-z Dowl. & R. 86; i B. & C. 37: Paley Conv. (Powl. Ed )z8. d-2 C. & K. 223 ; 5 C. & P. 162; 7 Id. 267; 8 Id. 605; i M. &M.403: i Hayw. ii2. e-i Campb 469. I'-i Greenl. Ev. ? 91 : I Starkie Ev. 180-191. p-i Mood. & R. 189. ll-Mcrlm Repert. i-Strickland Ev. 408. J-Best tv. J 346. K- knowledge or skill, to examine, estimate, and ascertain, and report their opinions. 11 Persons professionally acquainted with the science or practice in question. 1 Persons conversant with the subject-matter or questions of science, skill, trade, and the likd are thus selected, and their opinions received in evidence upon points in issue. See OPINIONS ; WITNESSES, below. EXTRACTS. In general an extract is not evidence, because the -whole of the writing may explain the part extracted, so as to give it a different sense ; but sometimes extracts from public books are evidence; as extracts from the registers of births, marriages, and burials, kept according to law, when the whole of the matter has been extracted which relates to the cause or matter in issue. EXTRINSIC EVIDENCE is external evidence, or that which is not contained in the body of an agreement, contract, and the like. It is a general rule that extrinsic evidence can- not be admitted to contradict, explain, vary, or change the terms of a contract, or of a will, except in a latent ambiguity, or to rebut a resulting trust.* EYE-WITNESS. See WITNESSES, below. FACTS. Fact is used in distinction from law. Thus in every case to be tried there are facts to be shown to exist to which the law is to be applied. Material facts are facts essen- tial to the right of action or defence. Material facts must be shown to exist. Immaterial facts need not. The existence of facts is generally determined by the jury, but there are many facts of which the courts take cognizance. See title, ACTS, ante; and JUDICIAL RECOGNITION; PRESUMPTION, below. HANDWRITING. When it is neces- sary to prove that a certain instrument or name is in the handwriting of a particular person; this is done either by the testimony of a wit- ness, who saw the paper or signature actually written, or by one who has by sufficient means acquired such a knowledge of the general character of the handwriting of the party as will enable him to swear to his belief that the handwriting of the person is the handwriting iu question. 1 The mode of deducing evidence of the authenticity of a written instrument is, by showing the likeness of the handwriting to that of another instrument proved to be that of the party whom it is sought to establish as the author of the instrument in question. At common law, as a general rule, this manner of obtaining evidence was not allowed. There were exceptions to this rule. I. Where the writings were of such antiquity that living witnesses could not be procured, but were not old enough to prove themselves. 2. Where 14 Johns, i ; i Day, 8 ; 6 Id. 270. l-i Phill. Ev. 422 , Stark. Ev. ; 2 Johns. Cas. 211 ; 5 Johns. 144 ; IQ Id. 134; i Ball. 14. 2 Me. 33; 6 S. &R. 568; i N. & M'C 554; a Id. 400; AnthonN. P. 77; 4 Gray, 167; sCush 295; 7 Com. Dig. 447: Bac. Abr. Ev. (M.): Dane Abr. Index. 111-1 Greenl. Ev. g =78. n -7 East 282, 14 Id. 328; Ry. & M. 143; 8 Wetid. 426. EVIDENCE. 443 other writings admitted to he genuine were already in the case.* The rule on the subject of admitting docu- ments irrelevant to the matter in issue for the purpose of comparison of handwriting is not settled uniformly. HEARSAY is the evidence, not of what the witness knows himself, but of what he has heard from others. That kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and compe- tency of some other person. 1 Such mere recitals or assertions cannot be received in evidence, for many reasons, but principally for the following : 1. That the party making such declarations is not under oath ; and, 2. Because the party against whom it oper- ates has no opportunity of cross-examination. 111 The general rule excluding hearsay evidence does not apply to those declarations to which the party is privy, or to admissions which he himself has made. The term hearsay evidence applies to written as well as oral matter ; but the writing or words are not necessarily hearsay because those of a person not under oath. Thus : information on which one has acted ; n conversation of a person suspected of insanity; replies to inquiries ;P general reputation ;< expressions of feeling ; r general repute in the family in questions of pedigree;* entries made by third persons in the discharge of official duties ;* entries in a party's shop-book, or other books kept in the regular course of business ; T and indorsements of partial payments* are admissible as original evidence under the circumstances, and for par- ticular purposes. As a general rule, hearsay reports of a tran- saction, whether oral or written, are not ad- missible in evidence. 1 The rule applies to evidence given under oath in a cause between other litigating parlies.^ Matters relating to public interest, as for example, a claim to a ferry or highway, may be proved by hearsay testimony; 1 but the matter in controversy must be of public interest;* the declarations must be those of persons supposed K-i Cr. & J. 47: i Mood. & R. 133; 5 Ad. & E. 514; 7 C. & P. 548, 595 ; 2 Me. 33. l-i Phill. Ev. 185. lll- Id. 11-2 B. & Ad. 845 ; 9 Johns. 45. 0-3 Hagg. Eccl. 574; 2 Ad. & E. 3; 7 Id. 331. p-i Taunt. 364; 8 Bingh. 320 ; 9 Id. 359 ; 5 Mass. 444 ; n Wend, no; i Conn. 387; 29 Ga. 718. q-2 Esp. 482 ; 3^.236; 2 Stark. 116; 2 Campb. 512; 33 Ala. (N. S.) 425. r-8 Bingh. 376 ; 8 Watts, 355 ; 4 M'Cord, 38 ; 18 Ohio, 99 ; 7 Gush. 581 ; i Head, 373 ; see 45 Me. 392. 3-13 Ves. Ch. 140-514; 3 Russ. & M. 147; i Cr. M. & R. 919; 2 C. & K. 701 ; 15 East. 29 ; 4 Rand. 607 ; 3 Dev. & B. 91; 18 Johns. 37; 2 Conn. 347; 6 Cal. 197; 4 N. H. 371 ; 17 Pet. 213; i How. 231 ; see 28 Vt. 416; see ante DECLARATIONS, t-3 B. & Ad. 890; i Bingh. (N. C.) 654 : 3 Id. 408 ; 2 Young & C. 249 : 4 Q. B. 132 ; i Cr. M. & R. 347; and see 8 Wheat. 326; 15 Mass. 380; 6 Cow. 162; 168. &R.89; 4 Mart. (N. S.) 383 ; 6 Id. 351; 12 Vt. 178; 15 Conn. 206. u-8 Watts, 544 ; 98. & R. 285; 6 W. &S. 350; 4 Mass. 455 ; n I'd. 427:2 Pick. 65 ; 8 Met. (Mass.) 269 ; i Nott. & McC. 186 ; 2 M'Cord, 328; 4 Id. 76; t Halst. 95 ; i Iowa, 53; 8 Id. 163; i Greeal. Ev. $ 119, 120, v-7 C. & P. 720. 10 to be dcad, k and must have been made before the controversy arose.* The rule extends to deeds, leases, and other private documents, 1 maps,* and verdicts.' Ancient documents pur- porting to be a part of the res gesta are also ad- missible, although the parties to the suit are not bound.* See DECLARATIONS, above. IDENTITY of the things in question must be proved in larceny, replevin, and trover. 1 * So, too, the identity of articles taken or injured must be proved in all indictments where taking property is the gist of the offence, and in ac- tions of tort for damage to specific property. Many cases occur in which identity must bt proved in regard to either persons or things, the question is sometimes one of great practical difficulty, as in case of the death of strangers, reappearance alter long absence, and the like. 1 IMPEACHMENT is proof that a witness who has been examined is unworthy of belief. Every witness is liable to be impeached as to his character for truth ; and, if his general character is good, he is presumed at all times to be ready to support it.J See WITNESSES, below. INADMISSIBLE EVIDENCE. See PAROL EVI- DENCE, below. INCONCLUSIVE EVIDENCE. See PRESUMP- TIONS, below. IN CHIEF. Evidence in chief should be confined to such matters as the pleadings and the opening warrants; and a departure from this rule will be sometimes very inconvenient, if not fatal. Suppose, for example, two assaults have been committed, one in January and one in February, and the plaintiff prove his cause of action to have been the assault in January, he cannot abandon that, and afterwards prove another committed in February, unless the pleadings and openings extend to both. k The object of this is, to prevent the plaintiff from introducing in evidence a different case from the one which he had prepared the defendant to expect from the pleadings. INDICIA. See IDENTITY, above. INDIRECT EVIDENCE is that which does not prove the fact in question directly, but Ad. & E. 598 ; 3 Campb. 305 ; 8 Wheat. 320 : 15 Mass 380; 20 Johns. 168 ; 2 Wend. 369, 513; 15 Conn. 206. w-2 Str. 827 ; 2 Campb. 371 ; 4 Pick, no; 17 Johns. 182; 2 M'Cord, 418. x-s Greenl. Ev. \ 124 ; 9 Ind. 572 ; 16 N. Y. 381 ; 5 Iowa, 532 ; 14 La. An. 830 ; 6 Wis. 63. y-i East. 373 ; 2 Id. 54 ; 3 T. R. 77 ; 7 Cranch. 296. z-i Stark. 195; 6 M. & W. 234 ; i Maule & S. 679; i Cr. M. & R. 9-29; 19 Conn. 250. a-? B. & Ad. 245; 4 Id. 273 ; 29 Barb. 593 ; 14 Md. 398; 6 Jones, 459. b-ii Price, 162; i Carr. & K. 58; 12 Vt. 178. C-I3 Ves. Ch. 514 ; 3 Campb. 444 ; 4 Id. 417. *I- 5 Esp. 60 ; 10 B. & C. 17 ; i M. & S. 77 ; 4 Id. 486. e- 2 Moore & P. 625 ; 19 Conn. 250. f-i East. 355 ; Garth. 181; 9 Bingh. 465; 10 Ad. & E. 151 ; 7 C. & P. 181. fg-5 T. R. 413, H. : 5 Price, 312 ; 4 Pick. 160 ; see 2 C. & P. 440; 3 Johns. Gas. 283; i Harr. & J. 174; 4 Denio, 201. ll-4 Bl. Comm. 396. i-See Ryan Med. Jur. 301 ; J Beck. Med. Jur. 509 ; i Hall Am. L. Jour. 70 ; 6 C. & P. 677 ; i Cr. & M. 730 ; i Hagg. Cons. 189 . Shelford Marr. & Div. 226; Best Pres. App. Case 4. Wills Circ. Ev. 143, et seq. j-3 Bouv. Inst. n. 3224, ei set), k-i Campb. 473; see also 6 C. & P. 73 i Mood & R. 282. 444 EVIDENCE. one from which such fact may be presumed. It is inferential evidence as to the truth of a disputed fact, not by testimony of any witness to the fact, but by collateral circumstances ascertained hy competent means.' INFERENCES are conclusions drawn from premises established by proof. It is the province of the judge who is to decide upon facts to draw the inference. When the facts are submitted to the court, the judge or judges draw the inference ; when they are to be ascer- tained by a jury, it is their duty to do so. Witnesses are not, as a general rule, permitted to draw an inference and then testify such in- ference to the court or jury; it is their duty to state the facts simply as they occurred. Inferences differ from presumptions. INSCRIPTIONS upon tombstones, rings, and the like, are held to be evidence of pedi- gree. 01 See DECLARATIONS; HEARSAY, above. INTERPRETERS may be sworn to tes- tify (and make translations) whenever neces- sary." They should be sworn before they translate the testimony of witnesses. A person employed between an attorney and client to act as an interpreter, is considered merely as an organ between the:n, and cannot be com- pelled to testify as to what he has acquired in those confidential communications. P INTERROGATE AIES. See title EQUITY, ante. IRRELEVANT EVIDENCE is that which does not support the issue, and which may therefore be excluded. JUDGES are not allowed to testify to what was made known to them, or took place before them in the hearing of causes.i They are not competent witnesses in a cause being tried be- fore them, for, among other reasons, they can hardly be deemed capable of impartially decid- ing upon the admissibility of their own testi- mony, or weighing it against that of another.* 1 JUDGES' NOTES which usually contain a statement of the testimony of witnesses, of documents offered or admitted in evidence, or offers of evidence and whether it was received or rejected, and like matters are not evidence of what transpired at a former trial, nor can they be read to prove what a deceased witness swore to on such former trial ; for they are no part of the record, and he is not officially bound to make them. But in chancery, when a new trial is ordered of an issue sent out of chancery to a court of law, and also, perhaps, where witnesses in a former trial are of an ad- vanced age, an order may be made that, in event of death or inability to attend, their testi- mony be read from judges' notes." JUDICIAL NOTICE OR RECOG- NITION. There are divers things of which courts take judicial notice, without the intro- duction of proof by the parties; such as the l-i Starkie Ev. 15; Wills Circ. Ev. 24; Best Ev. 21, aa, J 27, note; i Greenl. Ev. ? 13. m-Buller N. P. 233; I Cowp. 591; 10 East. 120; 13 Ves. Ch. 145. II- Wright, 157; 4 Mass. 81 ; 5 Id. 219; 2 Caines, i$s. O- Id. p-i Pet. C. C. 356; 4 Muiif. 273; 3 Wend. 337. territorial extent of their jurisdiction, local di- visions of their own countries, seats of justice, courts of general jurisdiction, their judges, their seals, their rules and maxims in the adminis- tration of justice, their course of proceeding, public acts, laws, etc. If the judge or justice needs information on subjects, he will seek it from such sources as he deems authentic. 1 All courts, tribunals, and officers, shall take notice of the official signature of any officer of the State, of the United States, or of any Statq or Territory in the United States." The several courts of the Commonwealth take judicial notice of all acts and resolutions of the General Assembly . T Although a private act may not be read in evidence, yet if it manifestly appear that it was relied on in the court below, the court of ap- peals will take judicial notice of it. w LAWS. The existence and the tenor or effect of all foreign laws, beyond the limits of the United States, may be proved by the parol evidence of persons learned in those laws. But if it appear that the law in question is contained in a written statute, the court may reject such parol evidence, unless it be accom- panied by a copy of the statute. The printed laws of the United States, or of any State or Territory, which hav2 been or shall be received in the secretary's (or other authorized) office of this State, and which has been printed under the authority of the United States, of such State or Territory, or a copy thereof, when duly certified by the secretary of such State, may be admitted and received as evidence of such laws. Any printed volume or pamphlet of laws of any State or Territory, showing on its face that it was published by authority cf such State or Territory, isfrima facie evidence of the laws contained therein. Every act of the legislature of any one of the States or Territories of the United States, certi- fied by the secretary, and having the seal of the State or Territory affixed thereto, is deemed authentic, and receives full faith and credit when offered in evidence in any cou't. The unwritten or common law of any other State, Territory (or foreign government), may be proved as facts by parol evidence. The books of reports of cases adjudged in their courts will also be admitted in evidence of such law. Elementary works on law are not admissible in evidence as to what the law is.* Courts are not to take notice, ex-officio, of the laws of other States. When a question de. pends on the laws of a sister State, such laws are a part of the evidence in the case, and, like any other fact, must be proved by him who holds the affirmative.' |-i Greenl Ev. ? 149. r-2 Martin (N. S.) 31* ; Cat. 3s8; see Com. Dig. Courts (V, 4): Bac. Abr. Cotn-ti (B.) : i Kent Comm. 291 ; Story Const, w-i Greenl. Ev. \ 166. t-See i Greenl. E.V.C. a. II -See S I All) r K>. V-Id. W-I7 B. Mou 47- X-'j C. & P. 73 ; a C. & 1C 270. y-i3 Ohio, 209 EVIDENCE. 445 COPIES or ANY ACT, LAW, OR RESOLUTION contained in the printed statute-books of the States and Territories of the United States, purporting to be printed by authority, and which are now, or may be hereafter, deposited in the office of the secretary of any State, and required by law to be kept there, certified under the hand and seal of office of such secretary, may be admitted as evidence. PRINTED COPIES OF THE ORDINANCES, RESO- LUTIONS, RULES, ORDERS, and BY-LAWS of any city or incorporated town, published by authority of such city or incorporated town, and manuscript copies of the same, certified under the hand of the proper officer, and having the corporate seal of such city or town affixed thereto, may be received as evidence. LEADING CASES. See title AUTHORITIES, ante. LEADING QUESTIONS, or questions which put into the witness's mouth the words to be echoed back, or suggest the answers which the party wishes to get from him, 1 can- not, in general, be put to a witness in his ex- amination in chief.* But in an examination in chief, questions may be put to lead the mind of the witness to the subject of inquiry, and they are allowed when it appears the witness wishes to conceal the truth, or to favor the opposite party, or where, from the nature of the case, the mind of the witness cannot be directed to the subject of inquiry without a particular specification of such subject. 1 In cross-examination, the examiner has gen- erally the right to put leading questions.* See WITNESSES, below. LOST PAPERS. When agreements, contracts, deeds, wills, and the like have been lost, and it is desired to prove their contents, the party must prove that he has made diligent search, and in good faith exhausted all sources of information accessible to him. For this pur- pose his own affidavit is sufficient. 4 On being satisfied of this, the court will allow secondary evidence to be given of their contents. See title AFFIDAVITS, ante. MANIFEST See CONCLUSIVE EVIDENCE, above. MEDICAL EVIDENCE is that given by physicans and surgeons in their professional capacity. The evidence of a medical witness s strictly that of an expert. d A professional witness should not be permitted to make up an opinion to be given in evidence from what other witnesses say of the facts in the case, because he would thus take the place of the jury as to the credibility of the witness, and also determine what part of the testimony of other witnesses applies to the case, a duty that belongs to the court. " If the symptoms and indications testified to by other witnesses are -7 S. & R. 171 : 4 Wend. 247. -3 Binn. 130 ; 6 Td. 4&3; I Phil!. Ev. 221; I Stark. Ev. 123. X-i Camph. 43; i Stark 100 fo-i Stark. Ev. 132; 3 Chitty Pr. 891 ; Rose. Civ. Ev. 94 : 3 Bouv. Inst. n. 320-;, 3704. C-i Atk. Ch. 446 ; i Creenl. Ev. 340. rt-Elwell Malp. ft Med. Ev. 375; 10 How. Pr. 289; a Conn. 514; i proved, and if the jury are satisfied of the truth of them, the question is, whether in his (the witness's) opinion, the party was insane, and what is the nature and character of that insanity, and what did they indicate, and what would he (the witness) expect would be the condition of such a person in any supposed circumstance." 8 Under this rule the medical witness passes upon the condition of the person whose condition is at issue. To do it correctly he must hear all the evidence that the jury hears ; he must judge as to the relevance of the evidence of others ; he must make an application of the facts that legally bear upon the case to it, and reject all others : in short, he is judge and jury in the case. It is not the province of the expert to draw inferences of fact from the evidence, but sim- ply to disclose his opinion on a known or hypo- thetical state of facts. For this purpose the counsel on each side put to the physicians such states of fact as they deem warranted by the evidence, and take their opinions thereon. If any of these states of fact are considered proved, then the opinions are admissible to be weighed by the jury, otherwise their opinions are not applicable to the case.' The attention of the witness being called to a definite state of facts, constituting a hypothetical case, his opinion is then unembarrassed by any collateral questions or considerations, and the jury, under the in- structions of the court, determines how far the facts sustain the hypothetical case, and, conse- quently, how far the opinion of the witness applies to the case under investigation.* A medical witness is not a privileged wit- ness (unless so made by statute), for where the ends of justice absolutely require a disclosure, a medical witness is not only bound, but may be compelled, to give evidence on all matters that will enlighten the case. If a medical man was to voluntarily reveal these secrets, to be sure he would be guilty of a breach of honor and of great indiscretion; but to give that information which, by the law of the land, he is bound to do, will never be imputed to him any indiscretion whatever. Medical books are not received in evidence. They are subject to the same rule that applies to scientific and other professional books. Even the elementary works on law are not admissible in evidence as to what the law is. k Facts or opinions on the subject of insanity, as on any other subject, cannot be laid down before the jury except by the testimony under oath of persons skilled in such matters. Whether stated in the language of the court or of the counsel in a former case, or cited from books of legal or medical writers, they are still statements of facts, and must be proved on oath, etc. 1 Chand. 178; * Ohio, 452; 37 N. H. 157; 17 Wend, ijfl; 4 Denio, 311 ; 7 Cush. 219; i Phill. Ev. 780; Smith L. Cns. e-7 Met. Mass. 505. f-i Curtis C. C. U. S. vt. MrGUie ; jo Clark & F. Ho. Lds. 210. tf-See EIwcll Malp. & Med. Ev. 311. h-s C. & P. 73 : 2 O. & K. 270. i-6 C. & P. 586 ; EIwcll Malp. & Med. Ev. 332. 446 EVIDENCE. NATURAL PRESUMPTIONS. See PRESUMP- TIVE EVIDENCE, below. NEWLY-DISCOVERED EVI- DENCE will afford ground for a new trial ; but courts only interfere with verdicts for this cause under very special circumstances. To entitle the party to relief, certain well-defined conditions are indispensable. It is a rule sub- ject to rare exceptions, and applied perhaps with more stringency in criminal than in civil cases, that the sole object of the new evidence must be to impeach or contradict witnesses sworn on a former trial. 1 It must not merely multiply testimony to any one or more facts already investigated, but must bring to light some new and independent truth of a different character ;J it must be a point before in issue, and be so material as to impress the court with the belief that if a new trial were granted, the result would probably be different ; k it must not have been known to the party until after the trial .' and the least fault in not procuring and using it at the trial must not be imputable to him. m OATHS. An oath is an outward pledge given by the person taking it, that his attesta- tion, or promise, is made under an immediate sense of his responsibility to God. n Before testifying, the witness is sworn to testify to the tiuth, the whole truth, and nothing but the truth. The mode of administering the oath must be such as may be most consistent with, and binding on the conscience of the witness. It may be varied to conform to the religious belief of the individual, so as to make it bind- ing on his conscience. The form of adminis- tering the oath in ordinary cases is substantially that of the old Scotch covenanters, omitting the ceremony of having the Bible open before the witness. The Gospels are not now gener- ally used.P The witness stands with head un- covered, and right hand uplifted. A Jew is sworn on the Pentateuch, or Old Testament, with his head covered ;i a Ma- hometan on the Koran ; r a Gentoo, by touching with his hand the foot of a Brahmin, or priest of his religion; a Brahmin, by touching the hand of another such priest ; a Chinaman, by breaking a china saucer;' Christians are sworn with their hats off, Jews with their hats on." The witness may be asked before he is sworn, whether he considers the oath he is about to take as obligatory upon his conscience/ 1-7 Barb. 271 ; 8 Gratt. 637. J-3 Woodb. & M. 348; i Sumn. C. C. 451 ; 6 Pick. 14 ; 10 Id. 16 ; a Caines, 129 ; 8 Johns. 84 ; 15 Id. 210; 4 Wend. 579 ; 7 W. & S. 4'5 I 5 Ohio, 375 ; n Id. 147; 4 Halst. 228 ; I Green, 77 ; 3 Vt. 72 ; A. K. Marsh, 151 ; 3 Id. 104. k-Dudl. 85; 3 Humphr. 322. 1-j Story C. C. i ; 2 Sumn. C. C. 19 ; 2 N. H. 166. m-6 Johns. Ch. 482 ; i Blackf. 367 ; 5 Halst. 250; 7 Id. 225 ; i Mo. 49: n Conn. 15; 10 Me. 218 ; 20 Id. 246 ; 14 Vt. 415 ; 7 Met. Mass. 748 ; 3 Graham & W. NewTr. 1015-1112. n-Tyler Oaths, 15. It is "a solemn invocation of the vengeance of the Deity upon the witness if he do not declare the whole truth, so far as he knows it." i Starkie Ev. 122. "A religious asseveration by which a person renounces the mercy, and imprecates the vengeance of heaven if he does not speak the truth." a Leach Cr. Cas. 482. "A religious act by which the party invokes God not only to witness the truth and sincerity of his promise, but also to avenge his Though a witness be an atheist, or does not express what manner of oath is most binding upon his conscience, yet if the court administer an oath to him he is bound by that oath ; for all oaths and affirmations alike subject the party who falsifies them to the pains and pen- alties of perjury. In general, the word "oath" include? "af- firmation;" and the word "swear" includes "affirm." ONUS PROBANDI. See PROOF, etc., below. , OPINIONS are inferences or conclusions" drawn by a witness as distinguished from facts known to him as facts. It is the province of the jury to draw infer- ences and conclusions; and if witnesses were in general allowed to testify what they judge as well as what they know, the verdict would sometimes prove, not the decision of the jury, but that of the witnesses. Hence the rule that, in general, the witness cannot be asked his opinion upon a particular question. 1 Some confusion in the application of this rule arises from the delicacy of the line which divides that which is to be regarded as matter of observation from that which is matter of judgment founded upon observation. Thus, an unprofessional witness may testify to the fact that a person whom he saw was intoxicated, whether he is able to state all the constituent facts which amount to drunkenness or not.J But, on the other hand, insanity or mental in- capacity cannot, in general, be proved by the mere assertion of an unprofessional witness. k So, handwriting may be proved by being recog- nized by a witness who has seen other writings of the party in the usual course of business, or who has seen him write. 1 But, on the other hand, the authorship of an anonymous article in a newspaper cannot be proved by one pro- fessing to have a knowledge of the authoi's style. m From necessity, an exception to this rule of excluding opinions is made in questions involv- ing matter of science, art, or trade, where skill and knowledge possessed by a witness, peculiar to the subject, give a value to his opinion above that of any inference which the jury could draw from facts which he might state. Such a witness is termed an expert; and he may give his opinion in evidence. imposture or violated faith, or, in other words, to punish his perjury, if he shall be guilty of it." 10 Toullier, pp. 343-348. Puffendorf, 4, c 2, % 4. 0-6 Mass. 262; 16 Pick. 154 ; 2 Gall. C. C. 246 ; 3 Park. Cr. Cas. 590 ; 2 Hawks. (N. Ca.) 458; 7111.540; Ry. & M. 77. pi Leach Cr. Cas. 412. 498 ; Comp. 390. All oaths must be administered by laying the right hand upon the Holy Bible, or by the uplifted right hand. q-Strange, 821, 1113. r-i Leach Cr. Cas. 54. s-Wils. 349. t-i Carr. & M. 248. n-B. N. P. 292 ; i Leach, 412 ; Cowp. 382 ; Peake, 155. v-2 B. & B. 284; i Greenl. ? 371. 1-29 N. H.04; I6I11.SI3; 18 Ga. 19^, 573; 2 Wend. 560; 24 Id. 668; a N. Y. 514 ; 9 Id. 371; 1714.340. J-i4 N. Y. 562; 26 Ala. (N. S.)26. k-i? N. Y. 340; 7 Barb. 314; 13 Texas, 568; and see 25 Ala. (N. S.)ai. 1-Pcake N. P. 21 ; i Esp. 15, 351 ; 2 Johns. Cas. 211 ; 19 Johns. 134. m-How. App. Cas. 187,202. 11-4 Hill, 129; i Denio, ati ; 3 111. 297; a N. H. 483; t Story C. C. 421. EVIDENCE. 44; The unwritten ot common law of foreign countries may be proved by the opinion of wit- nesses possessing professional knowledge. So the degree of hazard of property insured against fire;* handwriting ;"> mechanical opera- tions, the proper way of conducting a particular manufacture, and the effect of a certain method;' negligence of a navigator, and its effect in producing a collision;* sanity;* impo- tency ; value of chattels ; T value of land ; w value of services ; r benefit to real property by laying out a street adjacent thereto;' survey marks identified as being those made by United States surveyors ; and sea-worthiness.' Such opinions are taken with the qualifica- tions necessary to make, as far as possible, the judgment of the jury, and not that of the wit- ness, the final means of determining the issue. Thus opinions of experts are not admissible upon the question of damages ; b and experts are always confined to opinions within the scope of their professions, and are not allowed to give opinions on things of which the jury can as well judge." A distinction is always observed between a feeble impression and a mere opinion or belief." 1 ORAL TESTIMONY is spoken testimony used in contradistinction to written. It is delivered by a witness verbally by word of mouth. See PAROL EVIDENCE, below. ORIGINALS are single or duplicate. Single when there is but one, duplicate when there are two. In the case of printed docu- ments all the impressions are originals, or in the nature of duplicate originals, and any copy will be primary evidence.' When an original document is not evidence at common law and a copy of such original is made evidence by an act of the legislature, the original is not, therefore, made admissible evidence by implication.* See COPIES, above. PAROL EVIDENCE is that verbally delivered by the witness, by the living voice, by word of mouth. Parol evidence is inad- missible to contradict a written instrument. As to the cases in which such evidence will not be received or rejected.* PERPETUATING testimony is a prac- tice whose origin may be traced to the canon law. h Statutes exist in most States for this purpose. Equity also furnishes means, to a limited extent, for this same purpose. POSITIVE EVIDENCE is distin- O-Story Confl. L. 530; I Cranch. 12, 38 ; 2 Id. 236 ; 6 Pet. 763; Pet. C. C. 225; 2 Wash. C. C. i, 175; 2 Wend. 411 ; 5 Id. 375 ; 3 Pick. 293 ; 4 Conn. 517 ; 6 Id. 486 ; 4 Bibb. 73 : 2 Marsh. 609 ; 5 Harr. & J. 186 ; i Johns. 385 ; 3 Id. 105 ; 14 Mass. 455 ; 6 Conn. 508 ; i Vt. 336 ; 15 S. & R. 87 ; i La. 153 ; 3 Id. 53 ; 6 Cranch. 274; see also 14 S. & R. 137; 3 N. H. 349; 3 Yeates, 527 ; i Wheeler Cr. Cas. 205 ; 6 Rand. 704 ; 2 Russ. Cr. 623; 4 Campb. 155; Russ. & R. 456; 2 Esp. 58; 3 Phill. 449 ; i Eccl. 291. p-i? Barb, in ; 2 Zabr. 843. q-35 Me. 78 ; 2 R. I. 319 ; 35 N. H. 87 ; i Jones, 94, 150: 13 B. Mon. 258. r-4 Barb. 614; 19 Id. 338; aN. Y. 322. 8-24 Ala. (N. S.) 21. t-i Add. 244 ; 12 tf. Y. 158; 17 Id. 340. u-i Phill. Eccl. 14. V-22 Ala. (N. S. >37o; IT Cush. 257: 22 Barb. 652,656; 23 Wend. 354. W-u Cush. 201 ; 4 Gray, 607 ; 9 N. Y. 183 ; compare 4 29 guished from circumstantial evidence. It is that which, if believed, establishes the truth or falsehood of the fact in issue, and does not arise from any presumption. PRESUMPTIONS. See PRESUMPTIVE EVI- DENCE, belmv. PRESUMPTIVE EVIDENCE is any evidence which is not direct and positive. 1 That which shows the existence of one fact by proof of the existence of another, or other?, from which the first may be inferred; because the fact or facts shown have a legitimate tetv| dency to lead the mind to the conclusion that the fact exists which is sought to be proved. CONCLUSIVE PRESUMPTIONS are inferences which the law makes so peremptorily that it will not allow them to be overturned by any proof, however strong.* They are called, also, absolute and irrebuttable presumptions. INCONCLUSIVE OR DISPUTABLE PRESUMP- TIONS are inferences of law which hold good until they are invalidated by proof of a stronger presumption.* They are called, also, incon- clusive presumptions. Presumptive evidence consists of presumptions of law and presump- tions of fact. PRESUMPTIONS OF FACT are not the subject of fixed rules, but are merely natural presump-. tions, such as appear, from common experience, to arise from the particular circumstances of any case. Some of these are " founded upon the knowledge of the human character, and of the motives, passions, and feelings by which the mind is usually influenced." 1 They are the conclusions drawn by the mind from the natural connection of the circumstances dis- closed in each case, or, in other words, from circumstantial evidence. Circumstantial evidence is sometimes used as synonymous with presumptive evidence; but presumptive evidence is not necessarily, . and in all cases, what is usually understood by circumstantial evidence. The latter is not the evidence which tends to prove a disputed fact by proof of other facts which have a legitimate tendency from the laws of nature, the usual connection of things, the ordinary transaction: of business, etc., to lead the mind to a conclu. sion that the fact exists which is sought to be established. Presumptive evidence may sometimes be the result, to some extent, of an arbitrary rule as in the case of the presump- tion of death, after an absence of seven years without being heard from derived by analogy Ohio St. 583. X-is Barb. 550 ; 20 Id. 387. y-2 Gray, 107. z-24 Ala. (N. S.)3oo. -Peake's Cas. 25 : 10 Bingh. 57, and see 9 Cush. 226. t>-4 Denio, 311 , 3 Hill, 609 ; 21 Barb. 331 : 23 Wend. 425 ; 2 N. Y. 514 , i E. D. Smith, 536. C-5 Rg- Rec. 26; 4 Wend. 320; 14 Mo. 398; 3 Dana, 382 ; i Penn. 161 ; 2 Hal&t. 244 ; 7 Vt. 161 ; 6 Rand. 704 ; 4 Yeates, 262 ; 9 Conn. 102 ; 3 N. H. 349 ; 5 Harr. & J. 438 ; i Demo, 281. d-3 Ohio St. 406 ; i9Wend. 477. e-2 Stark. 130; but see 14 S. & R. 200; 2 Bouv. lust. n. 2001. f-z Campb. 121, n. |-See Starkie Ev. Pt. 4, PI. 995-1055 ; i Pbill. Ev. 466, Ch. 10, Ji; Sugd Vend. 97. h-Bockner, n. 4 ; STouil- lier, n. 22. i-i Stark. Ev. 3 d Ed 558. J-Best, Pre- sumption, 20. It-Best, Presumpt. 29 ; 2 Harr. & McH. 77 : 4 Johns. Ch. 287. 1-bturk. Ev. 27. Ul-Se* x Stark. Ev. 478. 44* EVIDENCE. from certain statutes. The jurists and the jury draw conclusions from circumstantial evidence, and find one fact from the existence of other facts shown to them, some of the presumptions being so clear and certain that they have be- come fixed as rules of law, and others having greater or less weight, according to the cir- cumstances of the case, leaving the matter of fact inquired about in doubt until the proper tribunal to determine the question draws the conclusion. In giving effect to presumptions of fact, the presumption stands until proof is given of the contrary. 11 This contrary proof may be a con- flicting presumption. In such cases the fol- lowing rules apply : I. Special presumptions take the place of general ones; 2. Pre- sumptions derived from the ordinary course of nature are stronger than casual presump- tions ;P 3. Presumptions are favored which tend to give validity to acts;<> 4. The presump- tion of innocence is favored in law. r Conclusive presumptions are estoppels ; sol- emn admissions of parties ; and unsolemn ad- missions which have been acted on.* So, also, that an officer's return is correct as to facts stated therein as between the parties ; u that an infant under the age of seven years is incapable of committing a felony ; T that a boy under fourteen is incapable of committing a rape ; w that the issue of a wife with whom her hus- band cohabits is legitimate, though her infi- delity be proved ; x that all persons subject to any law which has been duly promulgated, or which derives its validity from general or im- memorial custom, are acquainted with its pro- visions.' Rebuttable presumptions are presumptions that a man is innocent of the commission of a crime ;* that the possessor of property is its owner ;* that possession of fruits of crime is guilty possession ; b that things usually done in the course of trade have been done; that solemn instruments are duly executed ; d that a person, relation, or state of things once shown to exist continues to exist, as life, 8 a partner- ship/ insanity ;* that official acts have been properly performed h PRESUMPTIONS OF LAW are rules which, in n-i Cr. M. & R. 895; a Harr. & McH. 77: 2 Call. t2 ; 4 Johns Ch 287; Fee, " Burden of Proof." O- See 8 B & C 737 ; 9 Id. 643; 5 Taunt. 326; i Marsh. 68. p-i Carr. & K. 134: 4 B & C. 71 ; Co. Lilt. 37?, a q-Leach Cr. Cas. 412; 5 Esp. 230; i Man. & R. 663: 3 Campb. 432; 2 B. & C 814; 7 Id 573; 2 Wheat. 70: i South. 148; 3 Monr. 54; 7 Id. 344; 2 Gill &J. 114 , 10 Pick 359; i Rawle, 386. r-4 C & P. 116; Russ. & R. Cr. Cas. 61 ; 10 M. & W. 115 s-See PRACTICE ; EttoppeU. I- 1 Campb. 139; i Taunt. 398: 2 T. R. 275; 15 Mass. 82; see i Greenl Ev. 205; see, also, ADMISSIONS 11-15 Mass 82. v-4 Bl. Comm. 73 w- 7C. & P. 582; 8 Id. 736; old 118 x-jCarr&P. 215; i Sim & S. 153; 5 Clark & F. Ho. L 163 ; 2 Allen, 453 ; 3 Id 151. y-4 Bl Comm 27; i Co 177, 2 Id. 3 />. ; 6 Id 54 a z-2 Lew. Cr. Cas 227; see 3 Gray, 465; 19 Bost. L R 615; 3 East 191, 10 Id. *ii; 4 B. & C. 247; 5 Id 758: aB & Aid 385. a-i Str. 505 ; Q Cush. 150; 21 Barb 333; 35 Me. 139, 150. b-2 C. & P. 359; 7 Id 551; Russ & R. 308; i Den. C. R. Cas 596; 3 Dev. & B. 122; 7\'t 122: 6 Conn. 527; 19 Me 398. c-i Stark 223; i Mann & G. 46; 8 certain cases, either forbid or dispense any ulterior inquiry, 1 inferences or position* established, for the most part, by the common, but occasionally by the statute law, which are obligatory alike on judges and juries^ They are adopted from motives of public policy, and are those which arise in certain cases by force of the rules of law, directing an inference to be drawn from proof of the existence of a par- ticular fact or facts. They are conclusive or inconclusive. Conclusive presumptions are those which admit of no averment or proof to the contrary. Thus, the records of a court, except in some proceedings to amend them, are conclusive evidence of the matter there recorded, being presumed to be rightly made up. Inconclusive or disputable presumptions of law are those where a fact is presumed to exist, either from the general experience of mankind, or from policy, or from proof of the existence of certain other facts, until some- thing is oftered to show the contrary. Thus, the law presumes a man to be sane until the contrary appears, and to be innocent of the commission of a crime until he is proved to be guilty. So, the existence of a person, or of K particular state of things, being shown, the law presumes the person or state of things to con. tinue until something is offered to conflict with, that presumption." PRIMA FACIE EVIDENCE is that which appears to be sufficient proof respecting the matter in question, until something appears to controvert it; but which may be contradicted or controlled. Prim a facie evidence of fact is, in law, sufficient to establish the fact unless rebutted. 1 For example, when buildings are fired by sparks emitted from a locomotive en- gine passing along the road, it is prima fade evidence of negligence on the part of those who have the charge of it. m The holder of a bill of exchange, or note indorsed in blank, K prima facie the owner. PRIMARY EVIDENCE is the best evidence, or that proof which most certainly exhibits the true state of facts to which it relates. The non-production of the best evidence, when it can be had, creates a presumption that, 9^.323:98. ick. 112 C. B. 827; 7 Q. B. 846; 7 Wend. 19 6 R. 385; 9 N. H. 519; 10 Mass. 205 : 19 Pi Gill, 34; 45 Me. 516, 550; 15 Conn. 206. l-i Rob. Eccl. 10 ; 9 C. & P. 570; 15 Me. 470; i Met. (Mass.) 349; 15 Conn. 206. e-z Rolle, 461 ; 2 East. 313 ; i Pet. 452 , 3 McLean C. C. 390; see 2 Campb. 113; 14 Sim. Ch. 28, 277; 2 Phil. Ch 199; 2 M. & W. 894; 19 Pick. 112; i Met. (Mass.) 104 ; i Ga. 538 ; n N. H, 191 : 4 Whart I S. J 73 ; 23 Penn. St. 114; 36 Me. 176: 13 Ired. 333; 7 Texas, 178; i Penning 167; see DEATH, f-i Stark. 405. jp-3 Brown Ch. 443 ; 3 Met. (Mass.) 164 ; 4 Id. 545; 39 N. H. 163; 4 Wash. C. C. 262 ; 5 Johns. 144; i Pet. C. C. 163 ; 2 Va. Cas. 132 ; 4 M'Cord, 189. h-i J. J. Marsh, 447; 14 Johns. 182; 19 Id. 345; 3 N. H. 310; 3 Gill & J. 359; 12 Wheat. 70; 7 Conn. 350. it Greenl. Ev. $ 14. J-Best, Presumpt. 17. It -See Best, Presumpt. Ch. ii, and MEDICAL LAW; Death 1-6 Pet. 622,632; 14 Id 334; see generally ; T J- J- Marsh, 425; N. H. 484; T Ala. 267; 5 Rand. TOI : i Pick. 332 : c outh. TT ; i Yeates, 347; 2 Nott. & M'C. 320; i Mo. Conn. 95; 2 Root, 286; 16 Johns. 66, 136; t 2 A. K. Maish, 244. 111-3 C. B. 229. 334; ii C bail. 174 ; EVIDENCE. if produced, it might operate against the party who declines to produce it. 1 The rule excludes only that evidence which itself indicates the existence of more original source of information. The law requires this, and rejects secondary or inferior evidence when it is attempted to be substituted for evidence of a higher or superior nature; for example, when a written contract has been entered into, and the object is to prove what it was, it is requisite to produce the original writing if it is to be attained; and, in that case, no copy or other inferior evidence Will be received. This is a rule of policy grounded on a reasonable suspicion that the substitution of inferior for better evidence arises from sinister motives; and an apprehension that the best evidence, if produced, would alter the case to the prejudice of the party. This rule relates, not to the measure and quantity of evidence, but to its quality when compared with some other evidence of superior degree. Oral evidence cannot be substituted for:J 1. Any instrument which the law requires to be in writing; such as records, public docu- ments, official examinations, deeds of convey- ance of lands, wills, other than nuncupative, promises to pay the debt of another, and other writings mentioned in the statute of frauds. 2. Any contract which the parties have put in writing. Here the written instrument may be regarded, in some measure, as the ultimate fact to be proved. Thus, where in a suit for the price of labor performed, it appears that the work was commenced under an agreement in writing, the agreement must be produced. 3. Any writing, the existence of which is disputed, and which is material either to the issue between the parties, or to the credit of witnesses, and is not merely a memorandum of some other fact. The fact that in such cases the writing is in the possession of the adverse party does not change its character; it is, still the primary evidence of the contract ; and its absence must be accounted for by notice to the other party to produce it, before secondary evidence of its contents can be received. 11 Exceptions. The contents of any record of a judicial court, and of entries in any other public books or registers, may be proved by an examined copy. This exception extends to all records and entries of a public nature, in books required by law to be kept, and is admitted, because of the inconvenience to the public which the removal of such documents might occasion, especially if they were wanted in two places at the same time ; and also, because of the public character of the facts which they 1-4 Blackf. 241 ; 2 Id. 228. j-i Greenl Ev. % 82, 85- 88. It-" I have always," saia LordTenterden, " acted almost strictly on the rule, that what is in writing shall only be proved by the writing itself. My experience taught me the extreme danger of relying on the recollec- tion of witnesses, however honest, as to the contents of written instrument* ; they may be o easily mistaken, contain, and the consequent facility of detec- tion of any fraud or error in the copy. 1 For the same reasons, and for the strong presumption arising from the undisturbed exei cise of a public office, that the appointment i* valid, it is not in general necessary to prove the written appointments of officers. All who have acted as such are presumed to have been duly appointed to the office, until the contrary appears. 1 " Where the evidence is the result of volumi- nous facts, or the inspection of many books and papers, the examination of which could not conveniently take place in court, a witness who hab inspected the accounts of parties, may tes- tify to the general balance without producing the accounts ; n so, also, inscriptions on walls and fixed tables, mural monuments, grave- stones, surveyors' marks on boundary trees, etc." The verbal admission of the contents of a writing, by the party himself, if against his in- terest, will supersede the necessity of proving it. As it refers to the quality rather than the quantity of evidence, it is evident that this fullest proof that every case admits of is not requisite; if, therefore, there are several eye. witnesses to a fact, ic may be sufficiently proved by one only. It is not always requisite when the matter to be proved has been reduced to writing, that the writing should be produced ; as, if the narrative of a fact to be proved has been com- mitted to writing, it may be proved by parol evidence. A receipt for the payment of money, for example, will not exclude parol evidence of payment. Where a document is not itself evidence at common law, and a copy of it is made evidence by statute, the copy alone is evidence, and ncit the original. P PROOF OF ISSUE. CONFIXING THE EVIDENCE TO THE TOINT IN ISSUE. It is a general rule, both in civil and criminal cases, that the evidence must be confined to the point in issue. Justice and con- venience require the observance of this rule, particularly in criminal cases; for, when a prisoner is charged with an ofience, it is of the utmost importance to him that the facts laid be- fore the court or jury should consist exclusively of the transaction which forms the subject ot the complaint, information, or indictment against him, and which alone he has come pre- pared to answer.i To this general rule there are several exceptions, and a variety of cases which do not fall within the rule. In general, evidence of collateral facts is not admissible ; th^t I think the parpo-es of justice require the strict en- forcement of the rule " Id B & B. 287. I-i Greenl. Ev. f!o.i mi Green! Ev. 892; Id $83: i Show 537: Holt, 284; i Salk 281. Carth 220; Fast 192; B N. P 295 11-1 Greenl Ev ^93-56 0-4 Esp 213. and see 7 B & C 6u , i Campb 439 3 B. & A'd. 566. |>-2 Campb ui |-t KLSS. Cr. 94; l Phill. Ev, 166 45 EVIDENCE. but where such a fact is material to the issue joined between the parties it may be given in evidence; as, for example, in order to prove that the acceptor of a bill knew the payee to be a fictitious person, or that the drawer has general authority from him to fill up bills with the name of a fictitious payee, evidence may be given to show that he had accepted similar bills before they could, from their date, have nrrived from live place of date/ When special damage sustained by the plain- tiff is not stated in the plaintift's complaint, it is not one of the points in issue, and, therefore, evidence of it cannot be received ; yet a dam- age which is a necessary result from the de- fendant's breach of contract may be proved, notwithstanding it is not alleged in such com- plaint.' In general, evidence of the character of either party is inadmissible; yet in some cases such evidence may be given. k When evidence incidentally applies to another person or thing not included in the transaction iu question, and with regard to whom or which it is inadmissible, yet if it bear upon the point in issue it will be received. 1 PROVING THE AFFIRMATIVE OF THE ISSUE. The affirmative of the issue must be proved. The general rule with regard to the burden of proving the issue requires that the party who asserts the affirmative should prove it; but this rule ceases to operate the moment the pre- sumption of the law is thrown in the other scale. When the issue is on the legitimacy of a child, therefore, it is incumbent on the party asserting the illegitimacy to prove it.J See BURDEN OF PROOF, above. PROVING THE SUBSTANCE OF THE ISSUE JOINED. The substance of the issue joined be- tween the parties must be proved^- IN CIVIL ACTIONS, i. It is a fatal variance in a contract if it appear that a plain- tiff who ought to have been joined has been omitted. 1 But it is no variance to omit a per- son who might have been joined as defendant ; , because the non-joinder may be remedied by amendment. 2. The consideration of the con- tract must be proved ; but it is not necessary for the plaintiff to set out in his complaint, or prove on the trial, the several parts of a con- tract consisting of distinct and collateral pro- visions ; it is sufficient to state so much of the contract as contains the entire consideration of the act, and the entire act be done in virtue of such consideration, including the time, manner, nd other circumstances of its performance. It is a general rule of evidence, that if the substance of the issue, or the material facts contested by the pleadings, be established, it is sufficient. IN CRIMINAL ACTIONS, it may be laid down that it is, in general, sufficient to prove f-i H. B! 88. f-i Price, 19. h-See ante, CHARAC- TER. i-8 Bingh. 376; and see i Phil). Ev. 158: 2 East. PL Cr. 1035; a Leach Cr. Cas. 985; 4 Bos. & P. 92 ; Ru*s. & K. Cr. Cas. 376; a Yeates, 114; 9 Conn. 47. J-i Selw. N. P. Toy. k-i Phill. Ev. 190. l-i Saund. what constitutes an offence. It is enough to prove so much of the charge as shows that the defendant has committed a substantive crime therein specified. 11 PRIVILEGED COMMUNICA- TIONS. No person is liable, either civilly or criminally, in respect to anything published by him as a member of a legislative body, in the course of his legislative duty. Nor in respect to anything published by him in the course of a ]udicial proceeding. This privilege extends not only to parties, counsel, witnesses, jurors, and judges in a judicial proceeding, but also to proceedings in legislative bodies, and to all who, in the discharge of public duty or the honest pursuit of private right, are compelled to take part in the administration of justice or in legis- lation. A fair report of any judicial proceed- ing or inquiry is also privileged.* PROBABILITY. There is always a strong probability that a man of good moral character, and who has heretofore been upright and truthful, will, when examined as a witness, under oath, tell the truth; and, on the con- trary, that a man who has been guilty of per- jury will not, under the same circumstances, tell the truth ; the former is, therefore, entitled to credit, the latter is not. PROVING THE ISSUE. See BURDEN OF PROOF ; ISSUE, above. PUBLIC DOCUMENTS. Public docu- ments purporting to be edited or printed by authority of Congress, or the State legislature, or either house thereof, are evidence to the same extent that authenticated copies of the same would be. QUESTIONS are either general or lead- ing. General questions are those which re- quire the witness to state what he knows, with- out any suggestion being made to him ; as, " Who gave the blow ? " A leading question is one which leads the mind of the witness to the answer, or suggests it to him ; as, " Did A. give the blow ? " or " Is not your name A. ? " REBUTTING. It is a general rule that anything may be given as rebutting evidence which is a direct reply to that produced on the other side.P and the proof of circumstances may lie offered to rebut the most positive testimony.' But there are several rules which exclude all rebutting evidence. A party cannot impeach his own witness, though he may disprove, by other witnesses, matters to which he has testi- fied; nor can he rebut or contradict what a Svitness has sworn to which was immaterial to the issue. 1 " Parties and powers are estopped from contradicting a written instrument by parol proof; but this rule does not apply to strangers. 1 But the parties may prove that be. fore breach the agreement was abandoned, or annulled, by a subsequent agreement not in writing.' And when the writing was made by 291, rf. *. m-6 East. 568; 4 B. & Aid. 387. - Campb. 585 ; i Harr. & J. 427. O-Heard Libel & SI U go 103, no. p-a M'Cord, 161. q-i 1-et. C. C. ajs. r-i6 Pick. 153 ; Bail. 118. -io Johns, aag. t-4 N. H. 196. EVIDENCE. 4*1 another, as where the logbook stated a deser- tion, the party affected by it may prove that the entry was false or made by mistake.' RECORDS COPIES OF RECORDS, Etc. JUDICIAL AND PUBLIC RECORDS AND TRAN- SCRIPTS. A foreign judgment is the judgment of a foreign tribunal. The various States of the United States are in this respect considered as foreign to each other. Such judgments may be evidenced by exem- plifications under the great seal of the State or country where the judgment is recorded, or under the seal of the court where the judgment remains* by a copy proved to be a true copy, or by the certificate of an officer authorized by law, which certificate must itself be properly authenticated." The acts of foreign tribunals which are recognized by the law of nations, such as courts of admiralty and the like, are sufficiently authenticated by copies under seal of the tribunal,* in the absence of a statute to the contrary. The records and judicial proceedings of the courts of any State shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief-justice, or pre- siding magistrate, as the case may be, that said attestation is in due form; and the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken.* All records and exemplifications of office books, which are or may be kept in any pub- lic office of any State, not appertaining to a court, shall be proved or admitted in any court, or office in any other State, by the attestation of the keeper of the said records or books, and the seal of his office thereto annexed, if there be a seal, together with the certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is or may be kept, or of the governor, the secretary of state, the chancellor, or the keeper of the great seal of the State, that the said attestation is in due form, and by the proper officer ; and the said certificate, if given by the presiding justice of the court, must be further authenticated by the clerk or prothono- tary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified ; or if the said certificate is given by the governor, the secretary of state, the U-4 Mason C. C. 541. V-Gilb. Ev. 26 ; i Greenl. Ev. 5501. W-2 Cranch, 238 ; 5 Id. 335 ; 2 Caines, 155 ; 7 ohns. 514 ; 8 Mass. 273. x 5 Cranch, 335: 3 Conn. 171. y-Act Congr. May a, 1790 ; U. S. Stat. Vol. 2, p. 298, Act Congr. March fy, 1804, g i ; Brightly's Dig. .265,310. z-Act Congr. March 27, 1804; Id. ? 2 ; ijjhtly's Di^. p. 265,$ " -* GreenJ. Ev. g 506; 2 pri chancellor, or keeper of the great seal, it shall be under the great seal of the State in which said certificate is made ; and the said records and exemplifications, authenticated as afore- said, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State from whence the same are or shall be taken.* The provisions of both acts extend to the records, etc., of the Territories. If the court, whose record is certified, has no seal, this fact should appear, either in the certificate of the clerk or in that of the judge.' RE-EXAMINATION. See WITNESSES, below. REFRESHING MEMORY. A wit- ness has a right to examine a memorandum or paper which he made in relation to certain facts when the same occurred, in order to refresh his memory ; but the paper or memor- andum itself is not evidence. 1 * REGISTERS. Although not originally intended for the purposes of evidence, public registers are in general admissible to prove the facts to which they relate. Of these are regis- ters of births, deaths and marriages, etc. REPUTATION. In general, reputation is evidence to prove a person's character in society ; a pedigree. Certain prescriptive or customary rights and obligations; 'and matters of public notoriety. But as such evidence is in its own nature very weak, it must be sup- ported, when it relates to a right or privilege, by proof of acts of enjoyment of such right or privilege within the period of living memory. 4 Afterwards, evidence of reputation may be given. The fact must be of a public nature; it must be derived from persons likely to know the facts." The facts must be general, and not particular; they must be free from sus- picion.' See CHARACTER, above ; WITNESSES, below. RUMOR. In general, rumor cannot be received in evidence ; but when the question is whether such rumor existed, and not its truth or falsehood, then evidence of it may be given. SECONDARY EVIDENCE is that species of proof which is admissible when the primary evidence cannot be produced, and which becomes by that event the best evidence.' But before such evidence can be allowed it must be clearly made to appear that the supe- rior evidence is not to be had. The person who has it must be applied to, whether he be a stranger or the opposite party; in case of a. stranger, a subpoena and attachment, when proper, must be taken out and served ; in the case of a party, notice to produce such primary Martin, 497; i Hayw. 395. l-s Wend. 301 ; 12 S. 9f R. 328; 6 Pick. 222; i A. K. Marsh, 188; 2 Conn. 213; i Const. 336,373. c-14 Campb. 416; 4 T. R. 356; i Sim. &S. Ch. 153. d-i M. & 8.679; 5 T. R. 32. e-2 Bingh. 86; 9 B. Mon. 88; 4 B. & Aid. 53. f- i Stark. Ev. 54-65; i Phill. Ev. (4 Am. Ed.) 248, el sey . PT-3 Bouv. Inst. n. 3055 ; 3 Yeates, 530; set HEARSAY DECLARATION; COPIES, 45* EVIDENCE. evidence must be proved before the secondary evidence will be admitted.* After proof of due execution of the original, the contents should be proved by a counterpart, if there be one, for this is the next best evidence ; and it seems that no evidence of a mere copy is admissible until proof has been given that a counterpart cannot be produced. 1 If there be no counterpart, a copy may be proved in evidence by any witness who knows that it is a copy, from having com- pared it with the original. J But there are no degrees of secondary evidence ; and when a party has laid the foundation for such evidence he may pro""e the contents of a deed by parol, although it appear that an attested copy is in existence.* See DECLARATIONS; LOST PA- PERS, abov?. SUGGESTIONS. See LEADING QUESTIONS; QUESTIONS, above. TELEGRAMS. Telegraphic communi- cations must be proved in the same manner as other writings, such as letters and contracts are that is, 1 -y the original. If that is lost, it may be proved by copy, or, in default of that being obtainable, by oral testimony. 1 Sometimes the person to whom it is addressed is in the office when it i? received ; in such case, if it is not reduced to writing, it can only be proved, like other ma'ters resting in parol, by the recollec- tion of the witnesses in whose hearing it was repeated. TESTS are those things by which to ascer- tain the truth respecting other things." A paper may be submitted to a jury as a test or standard by which to determine the genuineness of other Writings. They are only admissible when no collateral issue can be raised concerning them.P THREATS. When a confession is ob- tained from a person accused of crime, in con- sequence of a threat, evidence of such a con- fession cannot be received, because, being obtained by torture or fear, it comes in so questionable a shape that no credit ought to be given to it.i This is the general principle, but what amounts to a threat is not so easily defined. It is proper to observe, however, that the threat must be made by a person having authority over the prisoner, or by another in the presence of such authorized person and not dissented from by the latter. 1 " BY TRANSLATIONS. Whenever any written evidence in a cause is in a language other than the English, a written translation of it in the English language, made by a compe- tent translator, and verified by his affidavit, may be read in evidence instead of the original, if such original be competent evidence. TRUTH. See AFFIRMATION; OATH, above. VIVA VOCE. It is said a witness de- livers his evidence viva voce (with living voice) 1l-7S. & R. 116; 4 Binn. 295, . ; 6 Id. 228,478; 7 East. 66 ; 8 Id. 278 ; 3 B. & Aid. 296. i-6 T. R. 236. J-B. N. P. 254 ; T Kefi. 117:6 Binn. 234 ; a Taunt. 52; i Campb. 469 ; 8 Mass. 273. k-6 C. & P. ?o8 ; 8 Id. 389. 1-29 Vet. 127; 21111.591; 37 N. Y. 457; 37 Mass. 682. 111-29 Vt. 127. 11-7 Penn. St. 428; 6 Whart. 284. 9-j Penn. St. 4*8 ; 6 Wharf. 284. p-See 14 N. Y. 439 ; when he does so in open court ; the term is opposed to deposition ; it is sometimes opposed to ballot; as, the people vote by a written or printed ballot, but their representatives in legis- lature vote viva voce. VOIRE DIRE is a preliminary examina- tion of a witness to ascertain whether he is competent; as, where he has an interest in the cause of action, for he might be tempted to perjure himself if he testified when interested. WEIGHT OF EVIDENCE. In civil causes the preponderance or weight of evidence determines the case in favor of the party pos- sessing it. In criminal causes, proof beyond a reasonable doubt is required; a preponderance of evidence may fall far short of proof, and proof may be of a much lower degree than proof beyond such a doubt, which should be required to warrant the conviction of the accused. When a verdict has been rendered against the weight of evidence the court may, on this ground, grant a new trial ; but the court will exercise this power not merely with a cautious but a strict and sure judgment, before they send the case to a second jury. The general rule, under such circumstances, is, that the verdict, once found, shall stand ; and setting aside is the exception. A new trial will be granted on this ground to either party ; the evidence, how- ever, is not to be weighed in golden scales. 1 WITNESSES. TESTIMONY is the statement made by a wit- ness under oath or affirmation. A WITNESS is one who testifies to what he knows. One who testifies, under oath, to some- thing which he knows at first hand.* A disin- terested witness is one who has no interest in the cause or matter in issue. . An ear witness is one who attests to things which he heard himself. An eye witness is one who saw the act or fact to which he testifies. The principal rules relating to witnesses are the same in civil and in criminal cases, and the same in all courts." The testimony of witnesses is taken in three modes : 1. By affidavits. 2. By deposition. 3. By oral examination. COMPETENCY OF WITNESSES. All persons, of whatever nation, may be witnesses/ But in saying this we must, of course, except such as are excluded by the very definition of the term, and such as cannot qualify himself by taking an oath. w Therefore all who cannot under- stand the nature and obligation of an oath, or whose religious belief is so defective as to nullify and render it nugatory, or who are otherwise disqualified by statute, or otherwise are excluded. i Greenl. Ev. J 581. q-i Leach Cr. Cas. 263. r-8 C. 6 P. 733. 8-3 Bingh. N. C. 109 ; Gilp. Dist. Ct. 356; 4 Yeates, 437; 3 Me. 276; 8 Pick. 122; 5 Wend. 595; 7 Id. 380; 2 Va. Cas. 235. t-1 Greenl. Ev. $ 98, 328. 11-3 Greenl. Ev. $ 249, 402: 2 Ves. Ch. 41 ; 17 Mas*. 30-5 ; 4 Monr. 20, 157 ; 2 Ohio, 16; 3 Id. 272. v-Bac. Abr. Ev. (A) Jfac. L. Dist. Ev. *r-s Mas. C. C- J?, EVIDENCE. 453 Atheists. Such as are insensible to the obli- gation of an oath, from defect of religious senti- ment or belief, are incompetent. Atheists, and persons disbelieving in any system of divine rewards and punishment, are of this class. It is reckoned sufficient qualification, in this par- ticular, if one believe in a God, that he will reward and punish us according to our deserts. It is enough to believe that such punishment visits us in this world only." It would seem to be sufficient to believe in such punishment as for perjury only, if, indeed, it be supposable that a man might believe thus much without extending his faith to any general system of rewards and punishments.' The oath may be administered in any form whatever, and with any ceremonies whatever, that will bind the conscience of the witness.* Grand jurors, and persons present before a grand jury, x are not permitted to testify to the proceedings had before that body.' Husband and wife are excluded from giving testimony for or against each other when either is a party to the suit or interested. This rule is founded partly on their identity of interest, and partly, perhaps chiefly, on the policy of the law which aims to protect the confidence between man and wife that is es- sential to the ties of the marriage relation, and, through that, the good order of society. Whether or not the disability may be removed by consent of the other is a matter of dispute.* Some exceptions to this rule* are admitted out of necessity for the protection of husband and wife against each other, and for the sake of public justice. b Idiots, lunatics, intoxicated persons, and generally those who labor under such privation or imbecility of mind that they cannot under- stand the nature and obligation of an oath. The competency of such is restored with the recovery or acquisition of this power. And so 3. lunatic in a lucid interval may testify. 4 Per- sons deaf and dumb from their birth are pre- sumed to come within this principle of exclu- sion until the contrary be shown. 6 A person in a state of intoxication cannot be admitted as a witness.* Infants so young as to be unable to appreci- ate the nature and binding quality of an oath are incompetent. A child under the age of fourteen is presumed to be incapable until capacity be shown. But the law fixes no limit of age which will of itself exclude; a child five years old has been admitted to testify.* A U-i Greenl. Ev. 369; 5 Mas. C. C. 18; 14 Mass. 184; 26 Penn. St. 274 ; i Swanst. 44 ; 16 Ohio, 121 ; 7 Conn. 66. T-See OATH, above, w-i Greenl Ev. 371 ; i Atk. Ch. si ; Willcs, 538. sc-i Greenl. Ev. ? 252. y- i Phill. Ev. 177-184; and Cow. & H. Notes, m, 154- 157. *-i Ves. Ch. 49 : i Wheat. Cr. Cas. 479 ; 4 T. R-. 679; 3 C. & P. 558; i Greenl. Ev. 340. a-i Greenl. Ev. 343. fo-Bac. Abr. Ev. (A) ; i Greenl. Ev. $) 334-347: i Phill. Ev 69-81 ; C. & H. Notes, 53- 74; Starkie Ev. Pt. 4, 703-715; I Ves. Ch. 49; I J. & 8.563; R. & M. Cr. Cas. 253. C-io Johns. 362; 28 Conn. 177; i6Vt. 474; 7 Wheat. 453; 2 Leach Cr. Cas. 481. d-J Greenl. Ev. ? 365. e-Id. \ 366 ; see i Leach Cr. Ca. 455 ; 3 C. Si P. 127 ; 8 Conn. 93 ; 14 Mass. person over fourteen years of age is presumed competent to testify. 11 Interpreters. A person employed between an attorney and client, to act as an interpreter, is considered merely as an organ between them, and is not bound to testify as to what he has acquired in those confidential communications. 1 Judges are not allowed to testify to what was made known to them, or took place before them in the hearing of causes.^ Persons in possession of secrets of state, or matters the disclosure of which would be preju- dicial to the public interest, are not allowed to testify thereto.* Parties to the record are not competent wit- nesses for themselves or their co-shitors. Nor are they compellable to testify for the adverse party, but they are competent to do so ; although one of several co-suitors cannot thus become a witness for the adversary without the consent of his associates. Regard is had not merely to the nominal party to the record, but also to the real party in interest; the former will not be allowed to testify for the adverse side without the consent of the latter. 1 By the statutes of many States all parties in interest may, subject to some restrictions, testify in their own or any other person's behalf in any action or proceeding. A party to a suit who is made a witness by statute is to become such under the same requi- sitions and restrictions as any other witness. He must be of sane mind, of sound memory, of suitable age, willing to be sworn, and capable of taking an oath. m The law which renders the parties to a suit competent and compellable to give evidence has not altered the rule of law which requires the execution of attested instruments to be proved by the sub- scribing witness. When a party to the action is made a witness by his adversary, he is entitled to be paid wit- ness-fees, as a condition to creating it his duty to attend and be sworn as one who is not a party to the action. The party who calls his adversary as a witness thereby represents him as worthy of credit, and cannot afterward impeach him by showing that cither his general character for truth is bad, or that he has made previous contradictory state- ments. P But he may prove a fact to be otherwise than his adversary has testified, 1 ! and he may do this by proving admissions of such adversary.' And the testimony of a party may be controverted 207; 5 Blackf. 205. f-T5 5. & R. 235; see Ray. Med. Jur. c. 22, <> Campb. 637 ; 3 Yeates, 429. l-i Greenl. Ev. $431, 449. J-Starkie Ev. 1737. It-See 25 Wend. 651 ; 3 Sumn. 104. 108 ; i Greenl. \ 554. 1-Per Eyre C. J. 24 ; St. Tr. Pli 284; 24 How. St. Tr. 755. m-i Greenl. Ev. J 446 449 ; Stark. Ev. 449. Ii-i Greenl. Ev. \ 449. EVIDENCE. 455 examining.* The cross-examination of a wit- ness is a matter depending much upon the dis- cretion of the court, which will sometimes permit one to cross-examine his own witness when he appears to be in the interest of the adverse party.? A cross-examination as to matters not ad- missible in evidence entitles the party produc- ing the witness to re-examine him as to those matters.i Inquiry may be made in regard to collateral facts in the discretion of the judge, r but not merely for the purpose of contradicting the witness by other evidence. 1 Irrelevant ques- tions cannot be allowed ; but if answered, cannot be contradicted.' A witness who has not been sworn cannot be cross-examined ; but if sworn, he may be cross-examined, though no question has been asked him in chief.* Direct examination. The course of exami- nation is, first, a direct examination by the party producing the witness ; then, if desired, a cross-examination by the adverse party, and a re-examination by the party producing.* As to the direct examination the general rule is, that leading questions 1 (i. e., such as suggest the answer expected or desired) cannot be put to a witness by the party producing him;y but in an examination in chief leading ques- tions may be put to direct the witness" attention to the subject of inquiry ;* or, where he seems to be hostile to the party producing him ; or, in the adverse party's interest; or, unwilling to give evidence;* or wishes to conceal the truth, or favor the opposite party; or where, from the nature of the case, the mind of the witness cannot be directed to the subject of inquiry without a particular specification of such subject. b He-examination. The right of re-examina- tion extends to all topics upon which the wit- ness has been cross-examined ; but the witness cannot, at this stage, be questioned as to any hew facts unconnected with the subject of the cross-examination, and not tending to explain it. But in civil cases the court will allow the plaintiff's counsel, after he has closed his case, to recall a witness to prove a point omitted in the first instance.* If a witness' character has been attacked in cross-examinat'on, the plaintiff may prove a general good character.* See CHARACTER, above. o-i Stark. Ev. 144 ; 2 Phill. Ev. 398, 429. p-i Stark. Kv. 132 : i Greenl. Ev.J 447 ; 2 Phill. Ev. 403, 406, 407. q-3 Ad. & E. 554; 17 Texas, 417. r-7 C. & P. 389 : 5 Wend. 305. S-i Stark. Ev. 164; 7 East. 108; 2 Lew. Cr. Cas. 154, 156; 7 C. & P. 789; 2 Campb. 637 : 16 Pick. 157 ; 8 Me. 42 ; 3 Gall. C. C. 51 : and see 3 C. & P. 75 ; i Exch. 91 ; 7 Clark & F. Ho. L. 122 ; 16 Pick. 157; 4 Denio, 502 ; 7 Wend. 57; 2 Ired. 346 ; 14 Pet. 461. t-7 East. 109 ; 2 Stark. 157; 2 Campb. 637 ; i Greenl. 449 ; 5 Md. 376; 2 Sw. & Tr. 170; 12 Ind. 324. n-i Phill. Ev. 260; 2 Stark. 473. v-i Phill. Ev. 260; 2 Stark. 473; i Esp. 74. W-i Stark. Ev. 123, 129, 150. X-A question which puts into the witness' mouth the words to be echoed back, or plainly suggests the answer which the party wishes to get from him 7 S. 8; R. 171 ; 4 Wend. 247. In that case the examiner is said to leatl The mode of determining the credibility of witnesses is the same in civil and criminal cases.' Impeachment of Witnesses. Impeachment if an allegation, supported by proof, that a witness who has been examined is unworthy of credit. Every witness is liable to be impeached as to his character for truth ; and if his general char- acter is good, he is presumed at all times to be ready to support it. A party cannot impeach the credit of his own witness; but he is sometimes, in cases of hard- ship, permitted to contradict it by other testi- mony. 11 The credit of an adversary's witness may be impeached by cross-examination, or by general evidence affecting his reputation for veracity (but not by evidence of particular facts, which otherwise are irrelevant and immaterial) ; and by evidence of his having said or done some- thing before which is inconsistent with his evi- dence at the trial ; also, of course, he may be contradicted by other testimony. 1 Generally, where proof is to be offered that a witness has said or done something inconsistent with hi& evidence, a foundation must first be laid, and an opportunity for explanation offered, by ask- ing the witness himself whether he has not said or done what it is proposed to prove, specifying particulars of time, place, and person J These rules apply to depositions, unless the inconsis- tent statements were made after the depositions were taken. k A witness assailed on a point of general bad character is sometimes sustained by a cross- examination of witnesses to character, to show their improper motives, or the unsatisfactory grounds of their alleged knowledge ; or he may be sustained by the testimony of witnesses who will swearthat his general characteris good. 1 A witness assailed by proof of former incon- sistent statements may be corroborated by proof of other statements, consistent with his testimony in court ; m whether the statement thus used in corroboration was on oath or not is not material. 11 Evidence of general good character may be offered to support a witness, whenever his credit is impeached, either by general evidence affecting his character, or on cross-examination.* See title CHARACTER. WRITINGS. Private writings, as deeds, contracts, wills. etc., are generally admissible in evidence. him to the answer. It is not easy to determine what n or what is not a leading question, y-3 Bum. i 30 : 6 Id 483 ; i Phill. Ev. 221 : i Stark. Ev. 123; i Greenl. Ev. ? 434 ; i Stark. 81 ; 2 Id. 128. Z-i Stark. 81 : i Campb 43. -i Greenl. Ev. this is not needed ; nor can parol evidence lie received to supply anything which is wanting in the writing, to make it the written agree- ment on which the parties rely.* The form of the agreement must be adequately expres- sive of the intent and obligation of the parties. It may be upon one or many pieces of paper ; provided that the several pieces are so con- nected by mutual reference or otherwise that there can be no uncertainty as to the meaning and effect of them all, when taken together and viewed as a whole;' but this connection of several parts cannot be established by ex- trinsic evidence.* The written agreement must be certain. 11 If the contract be in its nature entire, and in one part it satisfies the statute, and in others it does not, then it is altogether void. 1 But if these parts are sever- able, then it may be good in part and void in part.J " To answer for the debt, default, or miscar- riage of another person." This clause covers all guarantees, and is of great importance in reference to them. Its general effect is to make it necessary that all collateral promises should be in writing; and only when the promise is distinctly collateral is it within this clause of the statute. In the absence of evi- dence showing distinctly that a promise is collateral, it will be treated as an original promise.* Nor is it then material whether the promise is made before or after the delivery of the goods. 1 There must be some one who owes the debt directly. There must exist an original liability, as the foundation for the collateral liability, and one of these liabilities must be entirely distinct from the other. If, therefore, the creditor trusted to one of the parties more than to the other, but did in fact trust to one together with the other, it is not within the statute. The party for whom the promise has been made must be liable to whom it is made; and it is equally necessary that he continue liable after making the promise ; that is, the promise of the party undertaking must not have the effect, prior to its performance, of discharging the party originally liable. In order to bring a promise within this clause of the statute, it 237 i Young. & J. 387. to-4 Bing. 722. c-i Sch. & L. 22 ; 9 Ves. 250 : 10 Id. 292 ; 7 Scott, 769 ; 2 Eq. Cas. Abr. 50, pi. 6; Vin. Abr. C. & A. (.H.) pi. 45; 10 Paige, 386 ; 5 Hill, 107; i Seld. 229; 4 Greenl. 258 ; i Humph. 268. d-Prec. in Ch. 560 ; n Ves. 550; i At- kins, 12; i P. Wms. 618; 3 Exch. 652 ; 5 Id. 615 ; i Johns. Ch. 273; 3 Johns. 399; 4 Cush. 497; 13 Met. 385; 2 Gilman, 614; 7 Porter, 73; 13 Johns. 297; i Blackf. 21. e-i4 How. 446. 1-4 Exch. 623 ; 3 Bro. Ch. 318 ; 2 B. & P. 2.38 ; 3 Ves. 696 ; 5 Id. 308 ; 3 Ves. & B. 187; 3 Taunt. 169 ; 15 Vt. 685 ; Cheves, 68 ; 6 H. L. Cas. 238. |f-i Sch. & L. 22 ; i Ves. 326; 15 Vt. 685; i Johns. Ch. 273. h-i3 Johns. 297 ; Id. 508 ; 10 Conn. 192. i-2 Anstr. 420 ; Id. 425, n. ; 7 T. R. 201 ; 3 C. B. 766 ; 2 Ventr. 323 ; 7 A. & E. 49 ; 10 B. & C. 664; il C. B. 587; 15 Pick. 159; 6 Cush. 508; 13 Wend. 53. J-3 B. & C. 357; 2 Cromp. & H-94. fe-2o Vt. 205; iiA.&E. 438. 1-2 T. R. 80; 3 Doug. 132; McMullan, 372; 18 Me. 324 ; 36 Id. 113 ; 6 Foster, 249; 13 Vt 631. FRAUD. must be made to a party to whom the person undertaken for is liable. The statute applies only to promises made to the persons to whom another is already, or is to become answerable ; it must be a promise to be answerable for a debt of, or a default in some duty by that other person towards the promisee. A prom- ise, therefore, by A. to B. to pay a debt due from B. to C. is not within the statute." Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, his promise is not within the statute." If one of several persons, who are liable jointly or sev- erally for the payment of the same debt, prom- ises the creditor to pay the debt, this is not a case within the statute; for although the per- formance of the promise will have the effect of discharging the others, it is to be presumed that the thing in contemplation of the promisor was his own discharge. This clause of the statute does not embrace cases in which the liability to pay the debt of another arises by operation of law, out of some transaction be- tween the parties, without the aid of any special promise. Thus, if A., who is indebted to B., sends money to C. 10 pay the debt, and C. accepts the trust, he thereby becomes liable to B. for the debt of A.P The words " debt, de- fault, or miscarriage," extend to a liability for a mere tort.' "No action shall be brought upon any con- tract for the sale of lands, tenements, or heredi- taments, or any interest in or concerning them, unless," etc. These words are very general, and intended to have a wide operation; but they have been somewhat controlled by con- struction. Thus, if the question be whether a contract for the sale of growing crops be a con- tract or sale of " any interest concerning lands," it seems to be answered in conformity with the intention of the parties. If grain be reaped and stacked, or stored in barns, it becomes a chattel. If it be growing when sold, yet if the sale contemplates its severance when grown, and delivery of it then, distinct from the land, it is in the contemplation of the parties a mere chattel, and is therefore so in the view of the law, so far as this statute is concerned. r So, growing grass, growing trees, or fruits. A promise to pay for improvements on land is only a promise to pay for work and labor, or materials, and not for an interest in lands, and m-n Ad. & Ell. 438; 13 Mees. & Wels. 561; as Conn. 317; 2 Denio, 45; 16 Barb. 645; 6 Cush. 549; i Gray, 391 ; 5 Allen, 370 ; t Ga. 294; 4 Wend. 657; 1 Bing. (N. C.) 103; 5 Hill, 483. 11-3 Met. 396; i Gray, 391. 0-2 East. 325; IJA.la.6lt; 5 Mod. 205 ; Comb. 362; ii Gratt. 636; i Wils. 305. p-2 Sandf. 331 : i Conn. 519 ; 3 Id. 272 ; 3 Burr. 1886 ; 2 East. 325 ; < M. & S. 204; 4 Bing. 264. q-2 B. & Aid. 613; 2 Day, 457. r-i Met. 313; 4 M. & W. 347; 8 Met. 34; 3 Ohio St. 438; s Md. 41; 9 B. & C. 561; 4 M. & W. 343 ; 5 B. & C. 829 ; i Young. & Jar. 396 ; i Denio, 350; I'Barb. 542; 2 Id. 613; i L. Raym. 182 ; i B. & P. 397 ; 2 Id. 452 ; 6 East. 602 : n Id. 362; Johns. 421, H. (); 9 Cowen, 39 ; 20 Mo. 457; 2 M. & S. 105 ; 2 Taunt. 38 : 3 B. & "C. 357 ; 2 Brod. & B. 99; 13 East. 249; i Cromp. & M. 89 ; 7 Greenl. 447. S-j Johns. 372 ; it Id. 143 ; 7 Cawen, 163 ; 8 Rich. therefore need not be in writing.* And a con' tract for the sale of removable fixtures is not within the statute.* A mere license to use land, as to stack hay or grain upon it for a time, is not an interest in lands within the statute." But any contract, of which the effect is to give one party an easement on the land of another, is within the statute.* "A/a action shall be maintained upon any agreement that is not to be performed within the space of one year from the making thereof, unless" etc. An executory promise capable of entire performance within one year is not within this clause of the statute. The decision of this question does not seem to depend entirely upon the understanding or intention of the parties. They may contemplate as probable a much longer continuance of the contract, or a sus- pension of it, and a revivai after a longer period ; it may itself be liable to such continuance and revival ; and it may in this way be protracted so far that it is not in fact performed within a year; but if, when made, it was in reality capable of a full and bona fide performance within a year, without the intervention of extra- ordinary circumstances, then it is to be consid- ered as not within the statute. There are three classes of cases arising under this clause of the statute : I. Where by the express agreement of the parties the performance of the contract is not to be completed within one year. These cases are clearly within the statute. w 2. W'here it is evident from the subject-matter of the con- tract that the parties had in contemplation a longer period than one year as the time for its performance. These cases are within the stat- ute.' 3. Where the time for the performance of the contract is made to depend upon some contingency, which may or may not happen within one year. These cases do not come within the statute. 1 Fraudulent Conveyance. See CONVEY- ANCES. Freight. See BAILMENTS ; CARRIERS ; MARITIME LAW. Fugitive from Justice. See CRIMINAL LAW; INTERNATIONAL LAW. Full Age. See PERSONS. Furniture. See PERSONAL PROPERTY. Furtber Assurance. See CONVEYANCES; DEEDS. Future Estate. See ESTATES. Gallon. See WEIGHTS AND MEASURES. Onol. See CRIMINAL LAW ; PRISON. Garden. See REAL PROPERTY: HOUSE. Garnishment. See PRACTICE; ATTACHMENT. La w . 335- t-3 Day, 476; i Cromp M. & R. 266. u- M. & W. 248 ; 20 Ala. 412 ; 15 Wend 380 ; i Met. 313 ; ii Id. 251 ; ii 111. 157; 5 Barb. 379; 10 Id. 496; 18 Id. 347; 4 Sandf. Ch. 72. V-3 Conn. 314; C. B. i8, Eng. L. & Eq. 252. w-i B. & Aid. 722 ; i Cromp. M. & R. 20; 9 B. & C. 39; 7 Cowen, 263; a W. H. 315; 1 1 Vt. 428 ; i Id. 69 ; 10 Id. 338 ; 5 Mo. 46 ; 13 Wnd. 307; 5 Id. 204; 3 Hill, 130; Gray, 131 ; 4 Scott (N.' R.) 77 ; 2 C. B. 835 ; 8 Met. 59 ; 31 Me. 555 ; i Denio, 602; 2 Barb. Ch. 221 ; 2 Harring. (Del.) 27; 9 B. ft C. 392; 18 Pick. 569; 12 Conn. 455 ; 15 Me. 201; 15 Wind. 336. y-n East. 142; 20 Me. 119; 10 Johns. 244; 3 Burr. 1278; 19 Pick. 364. z-Skin. 353; 3 Burr. 1278 ; 4 Bing. 40 ; n Met. 411 ; 18 Mo. 88 : 3 Exch. 632 ; 4 B. Mon. 415; 16 East. 150; a C. B. 808; iH.&N. 81; 10 Wend. 426; 2t Pick. 97; 19^.364; 7 Met. 46; 4 Md. 476; ao Conn. 495; 4 Dana, 437; 31 Vt. ifa; Sanf. Ch. 91. GIFTS. 461 Qwte. See REAL PROPERTY; FENCE; TURNPIKE. Ganger. See OFFICE AND OFFICER. General Issue. See PLEADING. GIFTS. See CONVEYANCES, " Wills ;" SALBS. A GIFT is a voluntary conveyance ; that is, a conveyance that is not founded on the con- sideration of money or blood ; a transfer of the title to property to one who receives it without paying for it. The act by which the owner of a thing voluntarily transfers the title and pos- session of the same from himself to another person without any consideration. Gifts inter vivos are gifts made from one or more persons, without any prospect of immediate death, to one or more others. Gifts causa mortis are gifts made in prospect of death. BETWEEN LIVING PERSONS. This is a contract which takes place by the mutual consent of the giver, who divests him- self of the thing given in order to transmit the title of it to the donee gratuitously, and the donee, who accepts and acquires the legal title to it. This gift takes place when the giver is not in any immediate apprehension of death, which distinguishes it from a gift mortis causal Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. Delivery is essential; without actual possession the title does not pass. A mere in- tention or naked promise to give, without some act to pass the property, is not a gift. There exists repentance (the locu s poznitentid) so long as the gift is complete and left imperfect in the mode of making it. The subject of the gift must be certain ; and there must be the mutual consent and concur- rent will of both parties. Delivery must be according to the nature of the thing. It will have to be an actual delivery, so far as the subject is capable of delivery. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion. If the thing given be a chose in action, the law requires an assignment or some equivalent instrument, and the transfer must be executed." 1 When the gift is perfect by delivery and ac- ceptance, it is then irrevocable unless it is pre- judicial to creditors, or the donor was under legal incapacity, or was circumvented by fraud. If a man intending to give a jewel to another say to him, " Here, I give you my ring with the ruby in it," etc., and with his own hand delivers it to the party, this will be a good gift notwithstanding the gift bear any other jewel, being delivered by the party himself to the person to whom given.* Where a father bought a ticket in a lottery, which he declared he gave a- Vital, b-i Bouv. Inst. n. Tit ; see also Cooper Inst. n. 474, 475 ; U. S. Dig. Tit. Gift, e-7 Johns. 26. d-i Swanst. Ch. 436; i Dev. 309. e-Bac. Max. f-See 10 Johns. 293. ic-2 Bl. Coram. 514. h-2 Str. 777; see 1 Bligh. (N.' S.) 531. i-2 Ves. Ch. no ; i Sim. & S. Ch. 343. |-3 Binn. 370. k-Id. : 3 Madd. Ch. 184. I- 23 Penn. St. 59 ; 2 Brawn Ch. 612. 111-4 Brown Ch. 86. 1-5 B. & C. 501 ; 14 Pick. 204 ; 3 Barb. Ch. 76; 2 Barb. 94 ; 21 Vt. 238 ; see 24 Pick. 201 ; 33 N. H. 9*0; x> Conn. 410; ii Md. 424; 4 Gush. 87. 0-3 Binn. to his infant daughter E., and wrote her name upon it, and after the ticket had drawn a prize he declared that he had given the ticket to his child E. and that the prize money was hers : this was held sufficient for a jury to infer all the formality requisite to a valid gift and that the title in the money was complete and vested in E.' IN PROSPECT OF DEATH. This is a gift made by a person in sickness, who, apprehending his dissolution near, de- livers, or causes to be delivered, the possession of any personal goods to keep as his own in case of the donor's decease.* It differs from a legacy, inasmuch as it does not require proof in the court of probate. h And no assent is re- quired from the executor to perfect the donee's title. 1 It differs from a gift inter vivos, because it is ambulatory and revocable during the donor's life, because it may be made to the wife of the donor, and because it is liable for his debts. To constitute a good gift mortis causa: I. The thing given must be personal property ;J a bond,* bank notes, 1 and a check offered for payment during the life of the donor will be so considered. 1 " Not so a promissory note of the sick man made in his last illness." 2. The gift must be made by the donor in peril of death, and to take effect only in case the giver die. 3. There must be an actual deliv- ery of the subject to or for the donee, in cases where such delivery can be made,? but such delivery can be made to a third person for the use of the donee.i A gift causa mortis does not require the executor's assent,* 1 is revocable by the donor during his life by recovery* or resumption of possession, but net by a subsequent will, T but may be satisfied by a subsequent legacy.* It may be of any amount of property. 1 Such gifts are liable for the testator's debts.' Gill. See WEIGHTS AND MEASURES. Gist. See PLEADING. Good Will. See CONTRACTS ; SALE. Goods and Chattels. See CONVEYANCES, "Wills." Government. See INTERNATIONAL LAW. Grain. See EMBLEMENTS; WEIGHTS AND MEAS- URES. Grand Jury. See PRACTICE. Grand Larceny. See CRIMINAL LAW. Grandchildren. See PERSONS; RELATIONS. Grandfather. See PERSONS; RELATIONS. Grandmother. See PERSONS; RELATIONS. Grant. See CONVEYANCES ; REAL PROPERTY. Grant, Bargain, and Sell. See CONVEY- ANCES. Grantee. See CONVEYANCES. Grantor. See CONVSYANCES. Gross Adventure. See MAKITTMK LAW. Gross Average. See MARITIME LAW. Ground-rent. See CONVEYANCES , REAL PROP- BKTY. 370; 4 Burn. Eccl. L. no. p-3 Binn. 370; 2 Ves. Ch. 120 ; 2 Gill. & I. 268 ; 4 Gratt. 472 ; 31 Me. 422 ; 14 Barb. 243 ; 7 Eng. L. & Eq. 134 ; see 9 Ves. Ch. i ; 7 Taunt. 224. J-3 Binn. 370. r-2 Ves. Ch. 120. 9-y Bradf. Surr. 339 ; 27 Me. 196; 3 Wood. & M. C. C. 519 ; 34 N. H. 439. t-3 Macn. & G. 664 ; Wins. Ejc. 641. u-7 Taunt. 233 ; 2 Ves. Sen. Ch. 433. v-Prec Ch. 300. W-i Ves. Sen. Ch. 314 ; and sec i Ired. Ch. 130. x-24 Vt. 591. y-i Phil. Ch. 406; see 18 Ahv (N. S.) 27. 404 IGNORANCE. Growing Crops. See EMBLKMBNTS ; PERSONAL PROPERTY. Guarantee. See BONDS, NOTES, AND BILLS; CONTRACTS, " Payment." Guarantor. See BONDS, NOTES, AND BILLS; CONTRACTS, " Payment." Guaranty. See BONDS, NOTES, AND I ILLS; CONTRACTS, " Payment." Guardian. See PERSONS. Guardian ad Litem. See PERSONS. Guerilla. See MILITARY LAW. Guest. See BAILMENTS ; INNKEEPERS. Guilty. See PLEADING. Habeas Corpus. See PRACTICE. Habendnm. See CONVEYANCES. Habitation. See DOMICIL; REAL PROPERTY, " House." Half-blood. See PERSONS; RELATIONS. Half-blood Brother Sister. See PER- SONS ; RELATIONS. Half-cent Dime Dollar Eagle. See MONKY. Hallucination. See MEDICAL LAW. Handwriting. See EVIDENCE; WHITING. Harbor. See REAL PROPERTY ; WATI;K. Haven. See REAL PROPERTY ; WATKX. Hawker. See SALES. Hazardous Contract. See CONTRACTS; IN- SURANCE. Head. See REAL PROPERTY ; WATER. Head of a Family. See PERSONS. Health. See MEDICAL LAW. Hearsay Evidence. See EVIDENCE. Heifer. See ANIMALS. Heirs. See CONVEYANCES. Hermaphrodites. See MEDICAL LAW. High Seas. See REAL PROPERTY : WATER. High water Mark. See REAL PROPERTY; WATER. Highways. See REAL PROPERTY. His Excellency. See OFFICE AND OFFICERS. His Honor. See OFFICE ANU OFFICERS. Holder. See BONDS, NOTES, AND BILLS. Holding? Over. See LANDLORD AND TENANT. Homestead. See REAL PROPERTY. Homicide. See CRIMINAL LAW. Horses. See ANIMALS; BAILMENTS; INNKEEPERS. Hour. See TIME. House. See REAL PROPERTY ; HOUSE. House-breaking:. See CRIMINAL LAW. Household. See PERSONS. Household Furniture. See CONVEYANCES, " Wills ;" PERSONAL PROPERTY. Household Stuff. See CONVEYANCES," Wills ; " PERSONAL PROPERTY. Householder. See PERSONS, " Head of a. Fam- ily." Housekeeper. See PERSONS, "Head of a Fam- ily." Huiisror. See MEDICAL LAW. Hunting;. See ANIMALS. Husband. See MARRIAGE. Idem Soiiaiis. See PLEADING. Identity. See EVIDENCE. Idiocy. Sec MEDICAL LAW. Idiots. See PERSONS. IGNORANCE. See ACTS; EVIDENCE; LAW. IGNORANCE OF FACT is the want of knowl- edge as to the fact in question. It would be an error resulting from ignorance of fact, if a man believed a certain woman to be unmarried and free, when in fact she was a married woman ; but if he were to marry her under that belief he would not be criminally responsible.' Ignorance of the laws of a foreign government, or of another State, is ignorance of fact. b Ig- norance of fact excuses ; ignorance of law does not excuse.' IGNORANCE OF LAW is the want of knowl- a-6 Allen, 591. b-q Pick. 112; see, for the difference between ignorance of law and ignorance of fact, 9 Pick. pa. C-i Co. 177 ; 4 Bouv. Inst. n. 3828; Brown Max. edge of those laws which it is our duty to understand, and which every man is presumed to know. Thus, for example, the law forbids any one marrying a woman whose husband is living; if any man, then, imagined he could marry such a woman he would be ignorant of the law ; and if he married her he would com- mit an error as to a matter of law, and in doing this would be presumed to know the law respecting bigamy, and that he knew that he was committing, and that he intended to com- mit, the offence of bigamy; and this is true in regard to all offences. Every man may acquire a knowledge of the laws that have been promulgated ; and a neg- lect to become acquainted with them is volun- tary ignorance. 11 Illiterate. See CONTRACTS ; SIGNATURE; WRIT- ING. Illusion. See MEDICAL LAW. Imbecility. See MEDICAL LAW. Immaterial Averment. See PLEADING. Immigration. See DOMICIL. Immoral Consideration. See CONTRACTS, " Consideration." Immorality. See CRIMINAL LAW. Immovables. See PROPERTY. Impairing 1 Obligation, etc. See CON- TRACTS. Impanel. See PRACTICE. I in par lance. See PRACTICE. Impeachment. See EVIDENCE, "Witnesses." Impertinent; See PLEADING; PRACTICE. Implements. See PRACTICE. Implication. See PRACTICE. Impotence. See MEDICAL LAW. Imprisonment. See CONTRACTS, "Coercion," "Compulsion," " Duress;" PRACTICE, "Arrest." In Chief. See EVIDENCE. In Custodia I>egis. See PROPERTY, ETC. In Re. See PRACTICE. In Rem. See PRACTICE. In Terroruni. See CONVEYANCES, " Wills." In Testimony Whereof. See ACKNOWLEDG- MENTS. In Witness Whereof. See CONVEYANCES. Inadequacy. See CONTRACTS; CONVEYANCES. Incapacity. See CONTRACTS. Incendiary. See CRIMINAL LAW. Inception. See CONVEYANCES, "Wills." Incest. See CRIMINAL LAW. Incident. See REAL PROPERTY. Incompatibility. See OFFICE AND OFFICERS. Incompetency. See EVIDENCE, " Witnesses." Incorporeal Hereditaments. See REAL PROPERTY. Incumbrances. See CONVEYANCES; MORT- GAGES ; REAL PROPERTY. Indemnity. See BONDS OR OBLIGATIONS ; CON- TRACTS. Indenture. See CONVEYANCES, "Deeds." Indian. See PERSONS. Indictment. See PRACTICE. Indirect Evidence. See EVIDENCE. Indorsement. See title BONDS, NOTES. AN* BILLS. Inducement. See CONTRACTS, "Consideration! 1 Indulgence. See CONTRACTS ; SURETYSHIP. Inevitable Accident. See ACCIDENT. Infamy. See CRIMINAL LAW. Infant. See PERSONS. Infanticide. See MEDICAL LAW. Inference. See EVIDENCE, "Experts," "Pre- sumptive Evidence." Infidel. See EVIDENCE, " Witnesses." Information. See PRACTICE. (3d Lond. Ed.) 231 ; i Foubl. Eq. (4th Ed.) up, n. ; 8 Wend. 267, 284 ; 18 Id. 586, 588 ; 6 Paiga, 189, 105 ; I Edw. Ch. 467, 472 ; i Story Eq. Jur. g in. u-Doct. & Stu. t, 46; Plowd. 343. INSURANCE. 463 Informer. See CRIMINAL LAW. Infringement. See COPYRIGHTS; PATENTS. Inhabitant. See DOMICIL. Inheritance. See REAL PROPERTY. Initial. See NAME. In.jnnction. See PRACTICE. Injuries. See TORTS. Inmate. See REAL PROPERTY, " Dwelling." Inns. See BAILMENTS. Innkeepers. See BAILMENTS. Inquest. See INQUISITION; MEDICAL LAW, " Death." Innuendo. See PLEADING. Inquisition. See PRACTICE. Insanity. Sec MEDICAL LAW. Insolvency. See ESTATES. Inspection. See PRACTICE. Instalments. See CONTRACTS, "Payments," Performance." Instan ter. See TIME. Instructions. See PRACTICE. Insnrable Interest. See INSURANCE. INSURANCE. See BAILMENTS. INSURANCE is a. contract whereby, for an agreed premium, one party undertakes to indemnify another against loss on a specified subject by specified perils. The party agree- ing to make the indemnity is usually called the insurer or underwriter; the party to re- ceive the indemnity 'is called the insured or assured; the agreed consideration is called the premium; the written contract is called the policy; the events insured against are termed risks or perils ; and the subject, right, or in.- terest to be protected is denominated the insur- able interest.* Insurance against accidents to travellers is confined to risks in travel, etc. Insurance against fire on land to buildings and all species of property, real or personal, that is subject to destruction or direct damage by fire. Insurance on lives is, in general, upon human life, but is also made upon the lives of domes- tic animals or such as are in possession of the insured. Insurance on risks in carriage and navigation is upon vessels and other navigable craft, freight, cargo, and liens on either by bottomry, respondentia, mortgage for commis- sions or otherwise, and on profits. Companies who issue policies of insurance are incorpor- ated, and are either stock companies, mutual companies, or a mixture of the two. In a stock company the members or stockholders pay in a certain capital which is liable for the contracts of the company. In a mutual com- pany the members are themselves the parties insured ; in other words, all the members con- tribute premiums to the fund which is liable to each member for loss, according to the terms of the contract. In the mixed class certain members, who may or may not be insured, contribute a certain amount of the capital, for which they hold certificates or shares, and are entitled to interest on the same at a stipulated rate, or to an agreed share of the surplus re- ceipts, after payment of losses and expenses to be estimated at certain periods. -i Phillips Ins. J? 1-5. b-2 Phill. Ins. 1848 ; 4 Cow. 645. c-i6 T. B. Monr. 252 ; 2 Baru. 68. d-2 Phill. Ins. Ch. 23, % 1-3 ; 2 Dutch. 268 ; 6 Gray, 497 ; 7 Id. 261 ; 25 Barb. 497 ; 18 N. Y. 376 ; 19 Id. 305 ; 25 Conn. 55, 465, 542 ; 26 Id. 42; 12 La. 122; 37 N. H. 35 ; 13 Md. 348 ; i Grant Cas. 472 ; 23 Penn. St. 50, 72 ; 30 The business of insurance companies is usually transacted through agencies. The agent for effecting insurance may be such either by appointment, or the recognition of his acts done as such. b He may be agent for either of the parties to the policy, or for dis- tinct purposes, or for both. An insurance agency may be more or less extensive accord- ing to the express or implied stipulations and understanding between him and his principals. It may be for filling up and issuing policies signed in blank by his principals; for trans- mitting applications to his principals, filled up by himself as their agent, or that of the appli- cant ; for receiving and transmitting premiums ; for adjusting and settling losses ; or granting liberties and making new stipulations; or for any one or more of these purposes/ 1 Notice to an agent of matters within his commission is notice to the company. 8 AGREEMENT FOR INSURANCE. An agree- ment containing specific stipulations is often made in short terms preliminary to the filling out and delivery of an insurance policy. Such an agreement, specifying the rate of the pre- mium, the subject, and risk, and amount to be insured in general terms, and being assented to by the parties, is binding/ Though it is usually in writing, it may nevertheless be by parol, or by parol acceptance of a written pro- posal.s It must be in such form or expression that the parties, subject, and risk can be there- by distinctly known, either by being specified or by references so that it can be definitely re- duced to writing. 11 Such an agreement must have an express or implied reference to some form of policy. To be valid it must be on a legal interest against legal risks. 1 When the agreement is by a communication between parlies at a distance, an offer by either will be binding upon both on a despatch by the other of his acceptance within a reasonable or the pre- scribed time, and prior to this offer having been countermanded .J See APPLICATIONS, ETC., below. APPLICATIONS AND REPRESENTATIONS FOR INSURANCE. The preliminary statement mara by a party applying for an insurance on life, cf against fire, is called the application. It gen- erally consists of written answers to interroga- tories proposed by the company applied to re- specting the proposed subject. It corresponds to the "representations" preliminary to mari- time insurance. It is usually referred to ex- pressly in the policy as being the basis or a part of the contract, and this reference is in effect a warranty of the truth of the statements. k An oral misrepresentation of a material fact will defeat a policy on life, or against fire, no less than in maritime insurance, on the ground 26 Id. 50. e-i6 Barb. 159: i Eng. L. & Eq. 140; 6 Gray, 14. f-i Phill. Ins. Ch. g 3 ; 2 Curt. C. C. 277 ; 19 N. Y. 305. jf-2 Curt. C. C. 524 ; 19 How. 318 ; 31 Ala. 711. fc-i Phill. Ins. % 6-14, ft sey.: 2 Parsons Marit. L. 19; 19 N. Y. 305. i-i Phill. Ins. Ch. 3, ? 2 ; Id. Ch. 10 ; 19 N. Y. 184. J-i Phill. Ins. % 17, 21 ; 27 Penn. St. 263. k-Phill. Ins. Ch. 7, 15, 16. 464 INSURANCE. of fraud.* Insurance against fire and on life rests upon the same general conditions of good faith HS maritime insurance; but in the first two classes the contract is usually based mainly upon statements by the applicant in his written replies to the numerous inquiries ex- pressly referred to in the policy, which answers are thus made express warranties, and must, accordingly, be strictly true, whether their being so is or is not material to the risk ; the inquiries are intended to cover all material circumstances, subject, however, to the princi- ple, applicable to all contracts, that fraud by cither party will exonerate the other from his obligations, if he so elects. 1 See MISREPRESENTATION, below. INSURANCE POLICIES. A policy of insur- ance is the contract or instrument whereby in- surance is made by the insurer or underwriter in favor of the person insured, expressed, im- plied, or intended, against some risk, peril or contingency in reference to some subject. It is usually against accident or fire, on a life, or marine. An interest policy is one when the party insured has a real substantial assignable interest in the thing insured. An open policy is one on which the value is to be proved by the party insured." 1 Also, one in which an aggregate amount is expressed in the body of the policy, and the specific amounts and subjects are to be indorsed from time to time." A valued policy is one where a value has been set on the goods or ship insured, and the value inserted in the policy in the nature of liquidated damages. In such a policy the value of the subject is expressly agreed, or is, as between the parties, the amount insured. A wager policy is a pretended insurance founded on an ideal risk, when the insured has no interest in the thing insured, and can, therefore, sustain no loss by the happening of any of the misfortunes insured against. Such policies are strongly reprobated. Every policy, whether accident, fire, life, or marine, specifies or imports parties, and specifies the subject or interest intended to be insured, the premium on the consideration, and the amount insured, the risks or perils for which indem- nity is stipulated, and the period of the risk, or the terminus from whence and where to. Blanks. If a blank is left in a policy of in- k-Phill. Ins. ? 650. l-i Phill. Ins. Ch. 7, ?? 15, 16 ; 5 Hill, 188 ; 2 Hall, 632 ; 7 Barb. 570; 2 Denio, 75 ; 10 Pick. 535; 6 Gray, 288; 6 Cush. 42, 449 ; 2 Rob. 266 ; 24 Penn. St. 320 ; 3 Md. 341 ; 2 Ohio, 452 ; 21 Conn. 19 ; 6 Humphr. 176; 6 McLean C. C. 324; 8 How. 235 ; i W. Bl. 325 ; 6 Taunt. 186 ; 8 B. & C. 586 : 2 M. & W. 505 ; 5 Bingh. 533 ; 3 C. & P. 353 ; 2 M. & R. 328. m- i Phill. Ins. jig 4, 6, 7, 27, 439, 948, 1178. n-i2 La. An. 259; 19 N. Y. 305 ; 6 Gray, 214. 0-3 Kent Comm. 225. | Malioy.b. 2, Ch. 7,^14; Park. Ins. 22; Weskettlns. 42. <|- Marshall Ins. 336 ; 2 Parsons Marit. L. 27. r-i PhilMns. Ch. i, 13; 8N.Y. 351; 18 Id. 385 ; 8 Cush. 393 ; 9 Id. 479 ; 10 Id. 356 ;_ij Penn.^t. 253 ; 19 Id. 45 ; 23 Id. 262 ; 32 Id. 381 ; 29 Eng. L. & Eq. 111,215 : T?Id. 514; 2 Duer,4i9, 554: 3 Id. 435; 5 Id. 517, 594; 14 Barb. 383; 2 Id. 635; 16 Mo. 98; 22_Id. 82; 22 Conn. 235 ; i^ B. Mon. 311 ; 16 Id. 242 ; 3 Ind. 23 ; TI Id. 171 ; 28 N. H. 234 ; 29 Id. 182 ; 2 Curt. C. C. 322, 610 ; 37 Me. 137; 4 Zabr. 447; 18 111. 553; 4 R. I. 159; 5 Id. 426; 6 Cray, 214, 257; 7 Id. 261 ; 8 Ohio, 458. s-i Phill. Ev. surance for the name of the place of destination of a ship, it will avoid the policy.' A date is necessary to the validity of a policy of insurance ; but where there are separate un- derwriters, each sets down the date of his own signing, as this constitutes a separate contract."! The duration of the risk under a marine insurance, or one on inland navigation, is either from one geographical terminus to another, or for a specified time ; that of an accident or life policy is either for days, weeks, months, a term of years, or for life ; that of a fire policy is for a specified time. It is a leading principle as to the construction of a policy of insurance, that its distinguishing character as a contract is to be favored by the law. r Records and documents expressly re- ferred to in the policy are, in effect, for the pur- pose of reference, a part of the policy or contract of insurance. 1 A policy may take effect on actual or construc- tive delivery, and may be retrospective where neither party knows the prior circumstances.* In marine insurance the contract has neces- sarily more implied reference to customs and usages than most other contracts ; or, in other words, the larger proportion of the stipulations are not specifically expressed in the instrument." Thence it has been thought to be an imperfect! obscure and confused instrument.' But the diffi- culty in giving a practical construction seems to arise more from the complication of the circum stances necessarily involved, than from any re- mediable defects in its provisions or phraseology. New provisions are needed from time to time to adapt the contract to new circumstances. A mistake in filling up a policy may be cor- rected by order of a court of equity or of equity jurisdiction or powers. w Policies of insurance are liberally construed. 1 ABANDONMENT is a term used only in reference to risks in navigation ; but the princi- ple is applicable to fire insurance where there are remnants, and sometimes, also, under stipula- tions in life policies in favor of creditors.' The object of abandonment being to recover the whole value of the subject of the insurance it is requisite only where the lubject itself, or the remains of it, or claims on account of it, sur- vive the peril M'hich is the occasion of the loss.* ?? 70-74 ; 22 Conn. 235 ; 37 Me. 137; 20 Barb. 468; 23 Penn. St. 50; 23 Eng. L. & Eq. 514; 2 M. H. 551 ; 33 Id. 203; 10 Cush. 337. t-i Phill. Ins. Ch. 11, i ; i Ind. 196; 27 Penn. St. 268; 42 Me. 259; 25 Conn. 207; 17 N. Y. 415; 2 Dutch. 268 ; 5 Gray, 52. u-i Phill. Ins. ff 119. T-i Phill. Ins. 26, n. 3; i East. 579 ; 5 Cranch. 342; i Burr. 347. w-i Phill. Ins. f> 117; 5 B. & P. 322; 2 Caines, 339; I Wash. C. C. 415: I Ves. Sr. 317, 456- 2 Cranch. 441 ; 2 Johns. 330; i Ark. 545 ; 1 Paige Ch. 278 ; 2 Curt. C. C. 277. x-i Phill. Ins. j 6 ; i Binn. 98 ; 19 Pf nn. St. 45 ; 23 Id- 262 ; 32 Id. 351 ; 2 Barb. 623; 14 Id. 383; a Duer, 556; 5 Id. 594 : 8" Id. 351 ; 13 Id. 89; 13 B. Mon. 311 ; 16 Id. 242; 3 Ind. 23; ii Id. 171 ; i R. I. 38,426; 27 Ala. (N. S.) 77; 33 Me. 242 ; 37 Id. 137 ; 38 Id. 414 ; 9 Cush. 479 ; Jo Id. 337 ; 2 Gray, 297; 6 Id. 214; 7 Id. 261 ; 19 N. H. 580; 29 Id. 132; 4 Zabr. 447; 22 Mo. 82; 27 Id. 152 ; Ohio St. 458 ; 22 Conn. 235 ; 2 Curt. C. C. 447 ; 22 Mo. 82 ; 27 Id. 152 ; 18 Id. 553 ; 8 ; 22 Conn. 235 ; 2 Curt. C. C. 322 ; 29 Eng. L. & Eq. in ; 33 Id. 514. y-2 'Phill. Ins.jtJ 1490, it 14, '5'S: 3 Kent. Comm. 265; 16 Ohio St. 200. x-2 Phill Ins. j 1507, 1516 ; 36 Eng. L. & Eq. 198. INSURANCE. 465 In such case the assured must elect, immedi- ately upon receiving intelligence of a loss, whether to abandon to the company he can- not delay for the purpose of speculating on the state of the markets.' The right to abandon is waived by commencing full repairs, but not by temporary repairs ; b but is not lost by reason of the enhancement of the loss through the mere negligence or mistakes of the master of the vessel, or of the crew, but it is too late to abandon after the arrival in specie at the port of destination. An inexpedient or unnecessary sale of the subject by the master does not strengthen the right. Abandonment may be made upon informa- tion entitled to credit, but if made specula- lively, upon conjecture, it is void ; and it must be made without delay after reasonable reliable information of loss is received; otherwise the right will be waived, the assured not being per- mitted to wait in order to speculate upon the state of the markets. 4 In the absence of any stipulation on the subject no particular form of abandonment is required ; it may be in writing or oral ; in express terms or by obvious impli- cation ; but it must be absolute and uncondi- tional and the ground for it must be stated." Acceptance may cure a defect in abandon- ment, but is not necessary to its validity. 1 Nor is the underwriter obliged to accept or decline ; he may, however, waive it. But it is not sub- ject to be defeated by subsequent events. 1 * And the subject must be transferred free of incum- brance except expense for salvage. 1 See SALVAGE ; TOTAL Loss, below. Acceptance of abandonment in insurance is in effect an acknowledgment of its sufficiency, and perfects the right of the assured to recover for a total loss if the cause of loss and circum- stances have been truly made known. No particular form of acceptance is necessary, and the underwriter is not obliged to say whether fie accepts.! An acceptance may be a con- structive one, as, by taking possession of an abandoned ship to repair it without authority to do so, k or by retaining such possession an unreasonable time, under a stipulation author- izing the underwriter to take such possession. 1 ADJUSTMENT (determining the amount of loss). 1 There is no specific form essentially requisite to an adjustment. To render it binding, it must be intended and understood by the parties to a policy to be absolute and final. It may be made by indorsement on the policy, or by payment of the loss, or the accep- tance of an abandonment. If there is fraud by a-2 Phill. Ins. g 1667. fo-2 Phill. Ins. g 1540, 1541. C-2 Phill. Ins. 22 1547, 1555, 1570, 1571. d-2 Phill. Ins. g 1666, et seq. e-2 Phill. Ins. gg 1678, 1679, et sea. ; i Curt. C. C. 148. f-2 Phill. Ins. g 1689. g-i Phill Ins. g 1698. h-2 Phill. Ins. g 1704 : 6 Rich. Eq. 146. l-i Gray. 154. j-2 Phill. Ins. j 1689. fe-2 Curt. C. C. 322. l-i6 111. 235 x-2 Phill. Ev. gg 1814, 1815. m-2 Phill. Ev. 1815 ; 4 Burr. 1966 ; iCampb. 134, 274 ; 4 Taunt. r25 ; 13 La. 13; 4 Met. (Mass.) 270; 22 Pick. 191. n-2 Phill. Ins. g 1316; 2 Johns. Cas. 233; 3 Campb. 319. o- i Phill. Ins. g 1817 ; 2 East. 469; 2 Johns. 157; j! Id. 334 ; 4 Id. 331 ; 9 Id. 405 ; 2 Johns. Cas. 233. p-2 Phill. Ins. Ch. 14, 2 i , 2 ; 10 111. 235 ; 16 B. Mon. 242 ; 2 Dutch. either party to an adjustment it does not bind the other. n If one party is led into a material mistake of fact by fault of the other, the adjust- ment will not bind him. 8 The amount of the loss is governed by that of the insurable inter- est, so far as it is covered by the insurance. See ABANDONMENT, above; INSURABLK INTEREST, below. AMOUNT COVERED AMOUNT OF LOSS. THE AMOUNT COVERED or insured is limited by that specified in the policy to be insured, and this limit may be applied to an identical subject only, as a ship, a building, a life, etc. ; or to successive subjects, as successive cargoes on the same ship, or successive parcels of goods transmitted on a certain canal or rail- road during a specified period ; and it may be also limited by the terms of the contract to a certain proportion, as a quarter, half, etc., of the value of the subject or interest on which the insurance is made.P THE AMOUNT OF LOSS is the diminution, destruction, or defeat of the value of, or of the charge upon the insured subject by the direct consequence of the risk insured against, ac- cording to the value of the policy or the con. tribution for loss, so far as the value is covered by the insurance."! DEVIATIONS, or variations from risks d : . scribed in the policy from a necessity which is not inexcusably incurred, does not forfeit the insur- ance; 1 " as to seek an intermediate port for repairs necessary for the prosecution of the voyage ;, changing the course to avoid disaster;* delay i a order to succor those distressed at sea;* damage merely in defence against hostile attacks. Change of risk in insurance against fire, so as to render the insured subject, or its sur- roundings, or the use made of it different from those specified in the application, will discharge the underwriters.' A change of risk under a life policy, in contravention of its express pro- visions, will defeat it in like manner.* Though such a policy does not appear to have any implied condition other than those relative to fraud common to all contracts. The effect of a deviation in all kinds of in. surance is to discharge the underwriters 01 insurers, whether the risk is thereby enhanced or not; and the doctrine applies to lake and river navigation as well as that of the ocean.' INSURABLE INTEREST. It is es- sential to the contract of insurance, as distin- guished from a wager, that the assured should have a legally recognizable interest in the ii ; 6 Gray, 574; 7 Id. 246 ; 13 La. An. 246 ; 34 Me. 487; 39 Eng. L. & Eq. 228. q-2 Phill. Ins. Ch. 15, 16, 17; Parsons Mar. L. Ch. 10, g i,Ch. n, 12; 9 Cush. 415; i Gray, 371; 26 N. H. 389; 31 Id. 238 ; 5 Duer, i; I Dutch. 506; 6 Ohio St. 200; 5 R. I. 426; 2 Md. 217; 7 E. & B. 172. r-i Phill. Ins. ? 1018. s-i Phill. Ins. 9 1019. t-i Phill. Ins. g 1023. X-i Phill. Ins. J 1027 ; 6 East. 54 ; 2 Cranch. 240, 258 ; 2 Wash. C. C. 80 : J Sumn. C. C. 328. U-i Phill. Ins. \ 1030. V-i Phill. Jns. \ 1036 ; 17 Barb, n ; 2 N. Y. 210; 7 Cush. 173; 8 Id. 583 ; 6 Gray, 185 ; 19 Penn. St. 45 ; 13 B. Mon. 282 ; 23 Mo. 453; 4 Zabr. 447; i Dutch. 54; 4 Wis. o. w-i Phill. Ins. \ 1030. y-i Phill. Ins. 987. 4 66 INSURANCE. insured iubject, the pecuniary value of which may be appreciated and computed and valued. It is not requisite that the insured party should have an absolute property in the insured sub- ject, or that the subject or interest should be one that can be exclusively possessed, or be transferable in trade or assignment. The sub- ject or interest must, however, be such that it may be destroyed, lost, damaged, diminished, or intercepted by the risks insured against. The interests usually insured are those of the owner in any species of property, of mortga- gor, mortgagee, holder of bottomry or respon- dentia bond, of an agent, consignee, lessee, factor, carrier, bailee, or party having a lien, or entitled to a rent or income, or being liable to a loss depending upon certain contingencies, or having a certainty or probability of a profit or pecuniary benefit depending on the insured subject.? The certainty or probability, direct or incidental, of pecuniary benefit by the liv- ing, or pecuniary loss or damage to any one by the decease of another, gives an insurable interest in his life. 1 The amount of insurable interest is the value of the insured subject as agreed by the policy, or its market value, or the pecuniary loss to which the assured is liable by the risks insured against, though the insured subject for ex- ample, life or health has not a market value. a LOSS is the destruction of or damage to the insured subject by the perils insured against according to the express provisions and con- struction of the contract of insurance. These accidents, or misfortunes, or perils, as they are sually denominated, are all distinctly enumer- ated in the policy ; and no loss, however great or unforeseen, can be a loss within the policy un- less it be the direct and immediate consequence of one or more of these perils. b Loss under a life policy is simply the death of the subject by a cause, the risk of which is not expressly excepted in the policy, and when the loss is not fraudulent, as when one insured, who in- sures the life of another for his own benefit, procures the death. Loss in insurance against fire must, under the usual form of the policy, be the partial or total destruction or damage of the thing insured against fire. In maritime insurance, in which loss by fire is one of the risks usually included, the loss insured against may be absolutely or constructively told, or a partial or general average loss, or a particular average. Partial losses are sometimes called average losses, because they are often in the nature of those losses which are the subject of average contributions; they are distinguished into gen- eral and particular averages. Total losses in maritime insurance are absolutely such when the entire thing perishes or becomes of no y-i Phill. Ins. Ch. 3 ; u Eng. L. & Eq. 2 : 28 Id. 312 ; 34 Id. 116; 48 Id. 292 ; 5 N. Y. 151 ; 19 Id. 184; li Penn. St. 429 ; ioCusn.37; 6Gray,i92; 2Md.ui; 13 B.,Mon. 311 ; 16 Id. 242 ; 5 Sneed. 139. z-i Phill. Ins. Ch. 3, \ 14 ; 10 Cush. 244 ; 22 Penn. 65 ; 27 Id. 268 ; 23 Conn. 244 ; 22 Barb. ; 28 Mo. 383 ; 28 Eng. L. & Eq. jia. a-a PhiU. Ins. Ch. 14; 13 Barb. 206; 7 N. Y. value. Constructively, a loss may become total where the value remaining is of such a small amount that the whole may be surrendered. See ADJUSTMENT, above. MEASURE OF DAMAGES. In cases of loss of goods which have been insured from maritime dangers when the adjustment is made, the damages are settled by valuing the property, not according to prime cost, but at the price at which it may be sold at the time of selling the average. 8 See ADJUSTMENT, above. MEMORANDUM. A clause in a policy limiting the liability of the insurer i> called a memorandum. Policies of insurance on risks of transportation by water generally contain exceptions of all liability from loss on certain articles other than total, or for contribu- tions for general average, and for liability for particular average on certain other articles supposed to be perishable, or specially liable to damage under specified rates, or each varying from three to twenty per cent., and for any loss, whatever, under three or five per cent. Some seventy or eighty articles are subject to these exceptions of particular average in the divers forms of policy in use in different localities. 4 These exceptions were formerly introduced under a " MEMORANDUM," or " N. B.," and hence have been called " memorandum arti- cles," and the body of exception the " memo- randum." The list of articles and rates of ex- ceptions vary much in different places, and from time to time at the same place.* PART OWNERS. See INSURABLE INTEREST, above. POLICY. See INTRODUCTION, above. PREMIUM is the consideration for a con- tract of insurance. A policy of insurance al- ways expresses the consideration, called the premium, which is a certain amount, or a cer- tain rate upon the value of the risk, paid wholly in cash, or partly so and partly by promissory note (called a premium note, and collaterally secured by a stipulation in the policy for its being forfeited by its non-pay- ment) or otherwise.' By the charters of mutual fire insurance companies the insured building is usually subject to a lien from the premium.* The premium may be payable by service ren- dered. 11 In life insurance the premium is usually payable periodically, 1 and the continu- ance of the risk is usually made to depend upon the due payment of a periodical pre- niium.J So far as the agreed risk is not given in amount or time under a marine policy, the whole, or a proportional, stipulated, or custom- ary part of the premium is either not payable, or, if paid, is to be returned unless otherwise agreed. k REPRESENTATIONS. See APPLICATIONS, ETC., above. 530 ; 13 Id. 31 ; 24 N. H. 234 ; 2 Parsons Marit. L. Ch. 2, Z 2. b-Marshall Ins. i, Ch. 12. c-Marshall Ins. b i, Ch. 14, $2. p. 621. d-i Phill. Ins. % 54, n. 6-19 N. Y. 272. f-2 Parsons Marit. L. 182. g-i Phill. Ins.Ch. 6 ; 19 Miss. 53 ; 21 How. 35. h-5 Ind. 96. l-i8 Barb. 541. J-2 Dutch. 268. U-2 Phill. Ins. Ch. a; Parsons Marit. L. 185 ; 16 Barb. 280; 7 Gray, 246. INSURANCE. 467 RISKS AND PERILS. The risk or peril in an accident policy is the injury or death ; in a life policy, is death ; under a fire policy, destruction or damage by fire; under a marine policy, by perils of the seas, usually including fire; and under a policy upon subjects at risk in lake, river or canal navigation, by perils of the same. Under a marine insurance the risks are from a certain place to a certain other, or from one date to another. The perils usually insured against as " perils of the seas " are : fire, light- ning, winds, waves, rocks, shoals, and col- lisions; and also the perils of hostile capture, piracy, theft, arrest, barratry (seizing and run- ning away with the vessel, negligence, mutiny, etc.), and jettisons (casting the goods away, from necessity, whereby they sink and are lost). 1 But a distinction is made between the extra- ordinary action of perils of the seas, from which insurers or underwriters are liable, and wear and tear, and deterioration by decay, for which they are not liable. 01 Perils of lakes, livers, etc., are analogous to those of the seas." Insurers or underwriters are not liable for loss occasioned by the gross misconduct of the assured, or imputable to him ; but if a vessel is seaworthy, with suitable officers and crew, underwriters are liable for loss, though occa- sioned through the mistakes or want of assiduity and vigilance of the officers or men. Under- writers a/e not answerable for loss directly attributable to the qualifications of the insured subject independently of the specified risks,P or for loss distinctly occasioned by the fraudulent or gross negligence of the party insured. Insurance against illegal risks, such as trad- ing with the enemy, the slave trade, piratical cruisers, and illegal kinds of business, is void.i Policies usually contain express exceptions of some risks besides those impliedly excepted. These may be in maritime insurance, contra- band and illicit interloping trade, violation of blockade, mobs and civil commotions; in fire policies, loss on jewelry, paintings, sculpture, by hazardous trade, etc. ; in life policies, loss by suicide, risks in certain climates or localities, and in certain hazardous employments, without express permission. r See AVERAGE; Loss, above. SALVAGE. See MARITIME LAW. TOTAL LOSS in marine insurance is either the absolute destruction of the insured subject by the direct action of the perils in- sured against, or a constructive sometimes called technical total loss, in which the party insured is deprived of the possession of the subject, still subsisting in specie, or where there l-i Phil) Ir/s. fi 1099, et seq. m-i Phill. Ins. \ 1105. n-i Phill. Ins. j 1099. o-i Phill. Ins. ? 1040.' p-i Phill. Ins. Ch. 13, \ 5. q-i Phill. Ins. ft 210, 691. r- i Phill. Ins. % 55,63,64. s-2 Phill. liis. Ch. 17: 2 Johns. 286. t'-i Phill. Ins ? .106: 2 Eng. L. & Eq. 85 n-2 Phill. Ins. 1608: i Curt. C. C. 148; 9Cush. 415; 5 Denio, 342 : 6 Id. 282: 19 Ala. (N. S.) 108 ; i Johns. Cas. 141 ; 6 Jchns. 219. v-i Phill. ln>. gjj 1601, 1606, 1619; 4 Me. 431 ; 24 Miss. 461 ; 19 N. Y. 272 ; i Mart. may be remnants of it, or claims subsisting on account of it, and the assured by the express terms or legal construction of the policy has the right to recover its value from the under- writers, so far as, and at the rate of which it is insured, on abandonment and assignment of the still-subsisting subject, or remnants or claims arising out of it. 1 A constructive total loss may be by capture ; seizure by unlawful violence, as piracy,* or damage to ship or goods over half the value at the time and place of loss," or a loss of the voyage ; T though the ship or goods may survive in specie, but so as not to be fit for use in the same character for the same service or pur- pose;* or by jettison; 1 or by necessity to sell on account of the action and effect of the peril in- sured against ;* or by loss of insured freight consequent on the loss of cargo or ship. 1 There may be a claim for a total loss in addition to a partial loss.* A total loss of the ship is not necessarily such of cargo, b nor is submersion necessarily a total loss; nor is temporary delay of the voyage. 4 A constructive total loss, and an abandon- ment thereupon of the ship, is a constructive total loss of freight ; and a constructive total loss and abandonment of cargo has a like effect as to commissions or profits thereon ; and the validity of the abandonment will depend upon the actual facts at the time of the abandonment, as the same may subsequently prove to have been. 8 VALUATION. See ESTIMATED VALUE, above. WARRANTY in insurance is a stipula tion or agreement on the part of the insured party, in the nature of a condition. It is ex- press when the stipulation is introduced into the written contract by agreement of the par- ties. It is implied when it naturally results from the nature of the contract ; as, that the ship shall be seaworthy when she sails on the voyage insured. An express warranty must be strictly com- plied with, and the assured is not permitted to allege, in excuse for non-compliance, that the risk was not thereby affected, since the par- ties have agreed that the stipulated fact or act shall be the basis of the contract/ unless com- pliance is rendered illegal by a subsequent statute.^ The most frequent express warranties in mar- itime policies are, the time of sailing, and, in time of hostilities, the national character of the insured subject and neutral insignia and con- duct. In fire and life policies warranties are quite numerous, comprehending all the facts ?2i. W-2 Phill. Ins. 1605: 2 CainesCas. 324; Valin. Tom. 2, tit. Ass. a 46. x-2 Phill. Ins. $ 1616, 1617; i Caines, 196. y-2 Phill. Ins. ? 1623; 5 Gray, 154 : t Cranch. 202. z-2 Phill. Ins. $ 1642, 1645; 18 Johns. 208. a-2 Phill. Ins. ? 1743; 17 How. 595. b-2 Phill. Ins. ?3 1601, etseq., 1622; 3 Binn. 287. c-2 Phill. Ins. 2 1607 ; 7 East. 38. d-2 Phill. Ins. } 1618 : 5 B. & Aid. 597. e-2 Phill. Ins. j) 1610, et ley. ; 3 Johns. Cas. 93. f-Bouv. Inst Index , i Phill. In:,, f 755. g-i PhiU. Ins. g 769. INSURANCE INTEREST. stated by the applicant in his application when incorporated, as it usually is, into the policy, and expressly contracted by reference thereto. In fire insurance express reference is often made to the charter of the company ; specially so in mutual companies, and, in such companies, to rules and regulations, and conditions indorsed upon the policy. 1 A policy of insurance, no less than any other contract, is subject to the oondition of fraud. Intention. See CONTRACTS ; CRIMINAL LAW. i Inter Partes. See CONVEYANCES. INTEREST. See CONTRACTS. INTEREST is the compensation which is paid by the borrower of money to the lender for its use., and, generally, by a debtor to his creditor in recompense for his detention of the debt. It is a payment for the use of money. ALLOWANCE OF INTEREST. The contractor who has expressly or impliedly undertaken to pay interest is, of course, bound to do so. Executors,* administrators,* 1 assign- ees of bankrupts or insolvents,* guardians,* and trustees 8 who have kept money an unrea- sonable length of time,' and have made, or might have made, it productive,* are charge- able with interest. The lender upon an express or implied con- tract for interest is entitled to receive and en- force its payment. Executors, administrators, <:tc., are, in some cases, allowed interest for ad- vances made by them on account of the estates under their charge. h The rule has been ex- tended to trustees, 1 and compound interest even allowed them.} EXPRESS CONTRACTS. When the debtor expressly undertakes to pay interest, he or his personal representatives having assets are bound to pay it. But if a party has accepted ihe principal, it has been determined that he cannot recover interest in a separate action. 1 IMPLIED CONTRACTS where, from the course >f dealings between the parties, a promise to pay is implied, the debtor is bound to pay. 1 So, also, on an account stated, or other liqui- dated sum, whenever the debtor knows pre- x-i Phil!. Ins. Jg 28, 63, 64. -i2 Conn. 350 ; 7 S. & .*. 264. I>-4 Gill. &J. 453; 35 Miss. 321. c-2 W. & S. 557. cl-29 Ga. 82 ; 14 La. An. 764. e-i Pick. 528 ; 10 Gill. & J. 175 ; 15 Md. 75 ; 29 Ga. 82 ; u Cal. 71. f-i8 Pick, i ; i Ashm. 305 ; 29 Ga. 82. jf-4 Gill. & J. 453 ; I Pick. 530. h-io Pick. 77 ; 6 Halst. 44 ; see 9 Mass. 57. i-i Binn. 488. J-i6 Mass. 228. k-i Esp. N. P. no; 3 Johns. 220; see i Campb. 50; i Dull. 315; Stark. Ev. pt. 4, 787 ; 45 Me. 542 ; 9 Ohio St. 452. l-i C'ampb 50; 3 Brown Ch. 436; Kirb. 707; 2 Wend. 501 : 4 Id. 483; 2 Penning. 548 ; 33 Ala. (N. S.) 459 ; 8 Iowa, 163. m-2 W. Bl. 761 ; 3 Wits. 205 ; 2 Ves. Ch. 365; 8 Brown Parl. Cas. 561 ; 2 Burr. 10^5 ; 5 Esp. 114; 2 Com. Contr. 207 ; I Hayw. 173; 2C on bills and notes, if payable at a future day certain, after due; r if payable on demand, after demand made. 1 Where the terms of a promissory note are that it shall be payable by instalments, and on the failure of any instalment, the whole is to become due; interest on the whole becomes payable from the first default.* Where, by the terms of a bond or a promissory note, interest is to be paid annually, and the principal at a distant day, the interest may be recovered before the principal is due. On a deposit by a purchaser, which he is entitled to recover back, paid either to a. principal or an auctioneer. For goods sold and delivered after the customary or stipulated term of credit has expired ; w if there be no credit, then from the time of sale.* On judg- ment debts,? from the rendition of judgment.* On judgment affirmed in a higher court.* On money obtained by fraud, or where it has been wrongfully detained. b For whoever receives money not his own, and detains it from the owner unlawfully, must pay interest therefor. Hence, a public officer, retaining money wrong- fully, is chargeable with interest during the time of such wrongful detainer. So, an agent, unreasonably neglecting to inform his principal of receipt of money, is liable for the interest from the time when he should have communi- cated such information." 1 But an agent is not generally liable for interest on funds in his hands, unless he uses them, or is in default in accounting for them. 8 On money paid by mis- take, or recovered on a void execution/ On money lent or laid out for another's use.* On money had and received after demand. h OB purchase money which has lain dead, where the vendor cannot make a title. 1 On purchase- money remaining in the purchaser's hands to see 4 Ark. 210. t-4 Esp. 147. n-i Binn. 165; 2 Mass. 568 ; 3 Id. 221 ; see 2 Parsons' Notes and B. 391, et scq. V-Sugden Vend. 327; 3 Campb. 258; 5 Taunt. 625; but see 4 Taunt. 334, 341. W-Dougl. 376; 2 B. & P. 337; 2 Pall. 193 ; 4 Id. 289 , 6 Binn. 162 ; u Ala. 451 ; i Mc- Lean C. C. 411 ; 12 N. H. 474 ; 26 Ga. 465 ; 8 Iowa, 163. x-4 Dallas, 286, 289 ; 4 Harring. (Dd.1 30 ; 22 Vt. 191 ; 3 Comst. 502. y-14 Vin. Abr. 458, PI. 15; 4 Dall. 251 ; 2 Ves. Ch. 162 ; 5 Binn. 61 ; i Harr. & J. 754 ! 3 Wend. 496 ; 4 Met. (Mass.) 317 ; 6 Halst. 91 ; j Mo. 86; 4 J. J. Marsh. 244; T. U. P. Charlt. 138; see 3 M'Cord, 166 ; i 111. 52; 14 Mass. 239. z-Laws, 1871, Ch. 95, j> i ; 2t Wend. 157; 4 Mass. 170; i Harris & Johns. 754; 2 N. H. 169; 7 Rich. Eq. 395. -2 Burr. 1097 ; 2 Str. 931 ; 4 Burr. 2128 ; Dongl. 752, n. 3; 2 H. Bl. 267, 284; 2 Campb. 428, n. ; 3 Taunt. 503; 4 Id. 30; see 3 Hill, 426. b-y Mass. 504; i Campb. 129; 3 Cow. 426. c-3 Binncy, 123 ; 4 Wend. 675 ; 9 Johns. 6 N. H. 456. d-o Pick. 368. e-i Met. 112 ; 4 Oilman. 197 ; 6 Johns. Ch. 353. f-i Pick. 212 ; 4 Met. i8t ; i W. & S. 2 35 1 Q S. & R. 409; 3 Sumn. C. C. 336. ir-Bunb Exch. 119; 2 W. Bl. 761 ; i Vcs. Ch. 63; i Binn. 488; 6 Id. 163; i Pall. 349; 2 Hen. & M-. 381; i Hayw. 4; 9 Johns. 71 ; 2 Wend. 413 ; i Conn. 32 ; 7 Mass. 14; II Id. 504; i Mo. 718; 2 Met. (Mass.) 168. h-i Ala. (N S.) 452 ; 4 Blackf. 21, 164. i-Sugdeii. Vend. 327. INTEREST. 469 pay off incumbrances.J Kent from the time that it is due.* Even if the rent is payable otherwise than in money, but is not so paid. 1 Interest cannot, however, be recovered for arrears of rent payable in wheat. When the rate of interest is specified in any contract, that rate continues until full payment is made. JUDGMENTS. Upon a note made payable in a certain number of years, with interest an- nually, judgment can be recovered only for simple interest on the principal sum. n TIME DUE DATE OF ALLOWANCE, ETC. In actions for money had and received, inter- est is allowed from the date of the service of the writ. On debts payable on demand, in- terest is payable only from the demand.* The words " with interest for the same " carry in- terest from date.' The mere circumstances of war existing between two nations is not a suf- ficient reason for abating interest on debts due by the subjects of one belligerent to another. 11 But a prohibition of all intercourse with an enemy during war furnishes a sound reason for the abatement of interest until the return of peace. 8 A debt barred by the statute of limitations, and revived by an acknowledgment, bears in- terest for the whole time.' COMPOUND INTEREST. Interest upon interest is not allowed, except in special cases," and the uniform current of decisions is against it, as being a hard, oppressive exaction, and tending to usury.* If an agreement is made to convert interest already due into prin- cipal, or if accounts between parties are settled by rests, and therefore in effect upon the prin- cipal of compound interest, which may be done by an express accounting," or under a custom of forwarding accounts, quarterly, half- yearly, jr yearly, to the debtor who acquiesces in them by his silence; 1 these transactions are valid, and sanctioned by the law : and such a me' hod of ;omputation is even directed by courts.' If pompound interest has accrued, eve i under a prior bargain for it, and being actually paid, *t cannot be recovered back.* 15u' compound interest cannot be recovered as SUCT, even if it be expressly promised.* But am ual rests in merchants' accounts are al- .1 Sch. & L. 134 : sec i Wash. 125 ; 5 Munf. 342 ; 6 Bin i. 435. k-4 Johns. 183; 7 Wend. 109; 6 Gill & Johns. 383; 6 B. Mod. 462 ; 4 Wharl. 516; Laws 1871, p. ?Vk. 1-4 Wend. 313; 5 Denio, 135; 2 Comst. 135: 2 I'.urG 643; 5 Gratt. 259; 2 Kernan,40. llj-i Johns. 276 ^ee 2 Call, 249, 253; 3 Hen. & M. 463; 4 Id. 470; 5 Mu::f. 21. 11-8 Mass. 4=15. O-i Mass. 436; 15 Pick. 500; 12 N. H. 474. n-Addis. 137; 15 Pick. 500; 5 Corn. 2*2; i Mass. C. C. n?: see 12 Mass. 4. <|- Ad.iis. 321, 324; i Stark. 452, 507. r-i Pet.C. C. 574 ; 4 Jiarr. & M'H. 161. s-Sec on this subject, 2 DaJL 102, 132; 4 Id. 286; i Wash. 172; i Call, 194; 3 Wash. C. C. 396 ; 8 S. & R. 103, and/ Alk. Ch. 382 ; ii Ves. Ch. 314 ; 2 Vern. Ch. 395 ; i Wash. C. C. 521 ; 2 Id. 253; 4 Id. 296; 3 Wheat. 101 ; i? Mass. 4; i I. J. Marsh. 406; 5 Ired. 590; 17 Johns. 511 ; i Paige Ch. 220 : 2 N. H. 42 ; 25 Id. 474 ; I Ala. 587; 13 La. 91 ; 25 Harr. & J. 193; 3 Conn. 253 ; 5 Texas, 87-262. 0-26 Barb. 208 ; 2 Penn. St. 85 ; 14 Vt. 33 : 20 Mart, i ; 2 Johns. Cas. 355; 10 Wheat. 367; see 2 Parsons' Notes & B. 337, 375. I>-3 Campb. 296 : see 8 East. 168; 3 Binn. 295. |-i Call, 133 ; 3 M 'Cord, 340; i Root, 178; but sec o S. & R. 263. r-t Ball. 102 ; i Pet. C. C. 524 ; see also 2 Dall. 132 ; 4 Id. 286. N-i Esp. no; 3 Johns. 229; see 14 Wend. 116. t-2 T. n-4 Cranch. 333 ; 15 Wend. 76 ; 10 Conn. 95 ; R. Paine C. C. 66t ; 6 Me. 14 ; 8 N. H. 491. v-3 Cairies. 49. W-a T. R. 388. X -a Burr. 1094. y-i Vern. 349 ; worth. So, a lender, whether banker, broker,* engaged in trade, or lending his own money,' may charge, in addition to the discount, a rea- sonable compensation for his trouble or sen-ices. But the sum paid as such compensation or com- mission for service and trouble in any case must not exceed the amount usually taken in the course of trade or business ; and if it do, such excess will make the contract usurious.* SALES OF NOTES, Etc. Negotia- ble paper may be sold for less than its face, and the purchaser can recover its whole amount from the maker when it falls due, although he thereby gets much more than legal interest for the use of his money; and this principle ex- tends to bonds and other securities for money loaned. For such paper is property; and one may sell the notes which he holds at a price made low, either by doubts of the solvency of the maker, or by stringency in the money market, as well as his house or his horse at a less than the average price. But the purchase must be actual, and made in good faith, and not merely intended to give efficacy to a usurious contract. For if a person makes his own note, and sells that for what he can get, this, while in appear- ance the sale of a note, is in fact a loan and a borrowing, and nothing else. If the seller of a note acquired it by purchase, or if it is his for money advanced or lent by him to its full amount, he may sell it for what he can get ; but if he be the maker of the note, or the agent of the maker, and receives for the note less than would be paid him if only a lawful discount were made, it is a usurious loan. Where a note has been fairly executed, and where there is no usury between the original parties, so that the payee has acquired a legal right to sue the maker upon the note, he may then dispose of it, at any rate of discount from its face, and the purchaser will have a right to enforce it for its full amount against the maker. k USURIOUS INTEREST. Usury is the taking of more interest than the law allows. The excess over the legal rate charged the bor- rower for the use of money. There must there- fore be the use of money ; which may be by a loan, or by the continuance of an existing debt. To one or the other of these classes all con tracts for the use of money may be referred. 16 Vin. Abr. 303. Z-6 Ves. Ch. 92 ; i Vern. Ch. 349; Show. Parl. Cas. 13. 8-2 Brown. Parl. Cas. 251. fo- ld. 333. C-t East. 436; see also 4 Day, 30; 3 Caines, 49: i Taunt. 218; I Mass. 308; Com. Dig. Chanrrry (3 S. 2) Vin. Abr. //.(.) l-5 Ves. Ch. 329; sec Vin. Abr. Int. (C. 5.) e-2 T. R. 52 ; 2 Anst. 496 ; i B. & P. 156; 3 Camp. 488 ; 17 Ves. 332; i Maddock, 115; * Dea. & Ch. 12 ; 4 M. & S. 196 ; 10 Exch. 581 ; 29 Eng. L. & Eq. 369 ; 2 Day, 483 ; 2 Conn. 341 ; 6 Cowen, 657 ; 7 Johns. Ch. 160; 19 Johns. 160; 4 Hill, 211 ; 10 Paige, 94 ; 1 Hoff. Ch. 294 ; 2 Sandf. Ch. 149 ; n Barb. 80 ; 4 De v. &B. 120; 5 B. Mon. 146; 17 Ala. 774 : i Mont. & A. 385; 2 Camp. 348. f-2 Dea. & Ch. 12; i M. & S. 56. -2 Camp. 348. ll-7 Pet. 107 ; n Id. 345 ; 8 Cow. 685 ; 3 Wend. 65 ; 7^.569; 15 Johns. 55 ; 4 Hill, 472; 10 Pnige, 326; 2 Sandf. Ch. 249; 4 Mass. 162; 2 Conn. 179 : 4 Id. 153; 3 M'Cord, 365; i Dallas, 217; a Id. 92; IS Me. 163; 16 Id. 456; 20 Id. 98; 2 Munf. 36; i J. J. Marsh. 407 : 3 B. Mon. 67; 6 Id. 529 ; 7 Humph. 450 17 Ala. 768. INTEREST LANDLORD AND TENANT. 47 And to constitute nsury, there must be an agree- ment that he who has the use of the money shall pay the owner of it more than the lawful interest therefor. Interference. See PATENTS. Interlineation. See CONTRACTS; CONVEY- ANCES; WRITINGS. Interlocutory. See PRACTICE. International Law. See title LAW, " Inter- national Law." Interpleader. See PRACTICE. Interpretation. See CONTRACTS, "Interpre- tation." Interpreter. See EVIDENCE. . Interrogatories. See EQUITY ; EVIDENCE. Interruption. See LIMITATION. Intestacy, Intestate. See CONVEYANCES, Wills." Inundation. See WATER. Invention. See PATENTS. Inventory. See PRACTICE. Invoice. See COMMERCIAL LAW. In voluntary. See ACTS. Irregularity. See PRACTICE. Irresistible Force. See ACCIDENT. Irrigation. See WATER. Island. See REAL PROPERTY. Issue. See EVIDENCE; PLEADING. Item. See CONTRACTS. Joinder. See PRACTICE. Joint Bond Joint and Several Bond. See BONDS. Joint Contract. See CONTRACTS. Joint Representatives. See ESTATES. Joint Tenants. See CONTRACTS; CONVEY- ANCES. Joint Trustees. See ESTATES, "Trusts." Jointure. See ESTATES. Journal. See ACCOUNTS; LEGISLATION; MARI- TIME LAW, ETC. Judge. See EVIDENCE; OFFICE AND OFFICERS. Judge Advocate. See OFFICE AND OFFICERS. Judges' Notes. See EVIDENCE. Judgment. See PRACTICE. Judicial Proceedings. See PRACTICE. Jurat. See AFFIDAVITS. Jurisdiction. See PRACTICE. Jurisprudence. See LAW. Jury. See PRACTICE. Justice Of the Peace. See OFFICE AND OFFI- CERS. Justification. See PLEADING; PRACTICE. Kidnapping. See CRIMINAL LAW. Knowledge. See CRIMINAL LAW. Laches. See NEGLIGENCE. Land, Lands. See REAL PROPERTY. LANDLORD AND TENANT. See AS- SIGNMENTS; BONDS; CONTRACTS; CONVEYANCES, ETC. LANDLORD AND TENANT is a term used to denote the relation which subsists by virtue of the contract, express or implied, between two or more persons, for the possession or occupa- tion of lands or tenements, either for a definite period, for life, or at will. A LANDLORD is a person who owns or holds lands and tenements which he leases or rents c '\t to others. A TENANT is one who has the temporary use zt.d occupation of lands and tenements which belong to another, the duration and other terms of whose occupation are usually defined by an agreement called a lease, while the parties thereto are placed in the relation of landlord and tenant.' A LEASE is a contract for the possession and profits of lands and tenements on the one side, a-s Mann. & G. 54 ; Bouv. Inst. Index. fo-Bac. Abr. Lease. C-4 Conn 473 ; 4 Pet. 84 ; 3 Wend. 219 ; 7 La. 83: 6 Ad. & E. 854; Tayl. Landl. & Ten. 19. d-is Johns. 505 ; I Denio, 113 ; 4 M'Cord, 59 ; a Esp. 528 ; and a recompense of rent or other income on the other. b The party who leases is called the lessor ; he to whom the lease is made, the lessee ; and the compensation or consideration of the lease is the rent. EXPRESS CONTRACT. When the relation of landlord and tenant is created by an express contract, the instrument made use of for the purpose is called a lease. One of the essential properties of a lease is that its duration must be for a shorter period than the duration of the interest of the lessor in the land; for if he dis- poses of his entire interest, it becomes an assignmenf, and this is not a lease. In other words, the granting of a lease always supposes that the grantor reserves to himself a reversion in the leased premises. See title CONVEYANCES, " Leases," ante. IMPLIED CONTRACT. The relation of land- lord and tenant may arise by necessary impli- cation from the circumstances of the case ana the relative position of the parties to each other; for the law will imply its existence whenever there is an ownership of land on the one hand, and an occupation of it by permis- sion on the other ; and in all such cases it will be presumed that the occupant intends to com- pensate the owner for the use of the premises. 4 This relation may be inferred from a variety of circumstances; but the most obvious ac- knowledgment of its existence is the payment of rent ; and this principle applies even after the expiration of an express term of years ; for if the tenant continues to hold over after his term has run out, the landlord may, if he chooses, consider him a tenant, and he is, in fact, understood to do so, unless he proceeds to eject him at once. If the landlord suffers him to remain, and receives rent from him, or by any other act acknowledges him as tenant, a new tenancy springs up of so definite a charac- ter that it cannot be terminated by either parly, except by a reasonable notice to quit. d The payment of money, however, is only a pritna facie acknowledgment of the existence of a tenancy ; for if it does not appear to have been paid as rent, but stands upon some other con- sideration, it will not be evidence of a subsist- ing tenancy.* Neither does a mere participa- tion in the profits of land, where the owner is not excluded from the possession nor the let- ting of land upon shares, unless the occupant expressly agrees to pay a certain part of the crop as rent, in either case amount to a tenancy.' But the relation of landlord and tenant will not be inferred from the mere occupation of land, if the relative position of the parties to each other can, under the circumstances of the case, be referred to any other distinct cause : as, for instance, between a vendor and vendee of land, where the purchaser remains in pos- session after the agreement falls through. For 4 Camp. 275 ; 2 C. & P. 348. e-3 B & C. 4'3 : 10 East. a6i ; ii Jkd. & E. 307; 4 Bingh. QI. f-i6 Mass. 443; I Speer*, 408; 3 M'Cord, 21 1 ; i Gill. & J. 266; sZabf. 390 ; a Rawle, n ; 3 Hill (N. Y.) 90 . 15 Wend. 3^). 472 LANDLORD AND TENANT. ftie possession in that case was evidently taken with the understanding of both parties that the occupant should be the owner, and not tenant; and the other party cannot, without his con- sent, convert him into a tenant, so as to charge him with rent.* The same principle applies to mortgagor and mortgagee, as well as to that of a mortgagor and the assignee of the mort- gagee ; for no privity of estate exists in either case ; and, as a general rule, a tenancy by implication can never arise under a party who has not the legal estate of the premises in question. 11 RIGHTS AND LIABILITIES GENERALLY. The rights and obligations of the parties will be considered as having commenced from the date of the lease, if there be one, and no other time for its commencement has been agreed upon ; or, if there be no date, then from the delivery of the papers. If, however, there be no writ- ings, it will take effect from the day the tenant entered into possession, and not with reference to any quarter-day. 1 And these rights and duties attach to each of the parties, not only in respect to each other, but also with reference to other persons who are strangers to the con- tract. The landlord retains certain rights over the property, although he has parted with its j>ossession, while the tenant assumes obligations with respect to it which continue so long as he is invested with that character. After the making of a lease, the right of possession, in legal contemplation, remains in the landlord until the contract is consummated by the entry of the lessee. When the tenant enters, this right of possession changes, and he draws to himself all the rights incident to pos- session after this. The landlord's rights in the premises are suspended, or confined to the pro- tection of his reversionary interest; that is, to the maintenance of actions for such injuries as would, in the ordinary course of things, con- tinue to affect his interest after the determina- tion of the lease. Of such are actions for breaking the windows of a house, cutting tim- ber, or damming up a rivulet, whereby the timber on the estate becomes rotten.J The in- jury must be of such a character as perma- nently affects the inheritance; but it may be so if any one interferes with his tenants, and dis- turbs their enjoyment so far as to cause him loss of rent or other damage. k The landlord may, however, go upon the premises peaceably for the purpose of ascertain- ing whether any waste or injury has been com- mitted by the tenant or any other person, first giving notice of his intention. He may also use all ways appurtenant thereto, demand rent, make such repairs as are necessary to prevent ff-6 Johns 46 ; 16 Pet 75 ; i Me. 525 ; 8 M. & W. 118 ; 10 Cush 259. h-2 Mann. & R. 303 ; 6 Ad. & E. *68; Tayl. Landl. & Ten. 25. i-4 Johnf . 230 : 15 Wend. 656; Co. Litt. 46, a. i-n Mass. 519; J M. & S. 234 : 9 Singh. 3 : 4 B. & Aid. 72 ; 3 Me. 6 : 5 Penio, 404. k-i4 East. 489; 4 B. & Aid. 72; i Hall, 214. 1- 3 [ohn*. 408: i Vern.Ch. 575; 7 Pick. 76; i B. & C. 8 ; 7 M. & W. 6ot ; but see 5 Dowl. & R. 442 ; 3 B. & C. 3. IU-4 T. R. 318; a H. fil. 35p; 4 Taunt. 949; i waste, or remove an obstruction. But if rent is payable in hay or other produce, to be de- livered to him from the farm, he is not entitled to go upon the land and take it, until it is de- livered to him by the tenant, or until it has been severed and set apart for his use. 1 The landlord's responsibilities in respect to possession, also, are suspended as soon as the tenant commences his occupation. If, there- fore, a stranger is injured by the ruinous state of the premises, or the tenant creates a nuisance upon them, or if the fences are suffered to fall into decay, whereby the cattle of a stranger stray and are injured or lost, the landlord is in neither case answerable. But it would be otherwise if he had undertaken to keep the premises in repair, and the injury was occa- sioned by his neglect to keep up the repairs, or if he should renew the lease with a nuisance upon it. m TERMINATION OF THE RELATION. The relation of landlord and tenant may be termi- nated in several ways. If it is a tenancy for life, it will, of course, terminate upon the de- cease of him upon whose life the lease depends. If it be for a certain number of years, depend- ing upon some particular event, the happening of that event will determine the tenancy. So if it be for a certain number of years, inde- pendent of any contingency, it will expire at the last moment of the anniversary of the day from which the tenant was to hold in the last year of the tenancy. And in all these cases depending upon the express conditions of the lease, no notice to quit will be necessary in order to dissolve the relation of the parties to each other. But a tenancy from year to year, or at will, can only be terminated by a notice to quit : this notice must be in writing; it must be explicit, and require the tenant to remove from the premises ; it must run in the name of the person to whom possession is to be given, and not of his agent; and, if given by one of several tenants in common, it is valid only to the extent of his share, but if made by one of several joint tenants, it will inure to the benefit of all." So is a notice by one co-partner of a firm.P But notice to quit is not necessary where the relation of landlord and tenant does not subsist/! or where the tenant distinctly disclaims the title of the landlord.' No particular form of the notice is necessary ; but there must be a reasonable certainty in the description of the premises and in the statement of the time when the tenant must quit. If there is more than one tenant, the notice should be addressed to all, but it may be served on either one.' A valid notice, properly served, vests the premises in the Ad. & E. 827. n-Co. Litt. 216; Shepp. Touchst. 187 ; 9 Ad. & E. 879; 5 Johns. 128: i Pick. 43; 2 S. & R. 49 ; 18 Me. 264 ; Tayl. Landl. & Ten. ? 465. O-BlIrr. 1603; 5 Esp. 196; Dougl. 175; 5 Ad. & E. 350; 6 B. & C. 41 ; 10 Johns. 270: 8 Taunt. 241 : 2 Mann. & R. 433 ; 7 M. & W. 139 ; 3 Bingh. (N. C.) 677 : i B. & Ad. 135. p-2 Mann. & R. 483. |-2 Esp.- 501 ; 7 T. R. 8} ; 10 East. (Day's Ed.) 261, n. 2. r-3 East. 260; 10 I'd. 158; a Campb. 505 ; i Stark. 181 ; Id. 308 : 3 Campb. 8 ; j M. & W. 14. B-7 East. 551 ; 5 Esp. 196. LANDLORD AND TENANT. 473 Ian 1 lord, and absolutely terminates the tenant's uglit of possession at the time stated.' But ;;iis and all other effects of the notice may be waived by the landlord, and is so waived by his receiving subsequent rent from the tenant." A tenant who is entitled to notice of the de- termination of his tenancy, must be previously notified of such determination, nor can he be dispossessed by process of law, without that previous notice. Such notice is regulated by statute. T This relation will also be dissolved when a tenant incurs a forfeiture of his lease by a breach of some covenant or condition therein. An- other means of dissolving a tenancy is by an operation of law, termed a merger, which hap- pens when a tenant purchases the estate, or it descends to him as heir at law, the lease becom- ing thereby merged in the inheritance, the lesser estate being absorbed in the greater. In addi- tion to the several methods of putting an end to the tenancy already mentioned, a tenant may surrender his lease to the landlord ; or, if the subject matter of the lease wholly perishes, or is required to be taken for public uses, or if the premises are converted into a house of ill- feme, or the tenant disclaims to hold under his landlord and therefore refuses to pay his rent, asserts the title to be in himself, the tenancy is at an end, and the landlord may forthwith re- sume possession.* After the tenancy has ended, the right of possession reverts to the landlord, who may re-enter upon the premises if he can do so without violence. But if the tenant holds over and the landlord takes possession forcibly so as to endanger a breach of the peace, he is liable to an action for a forcibly entry as well as suf- fering the consequences of an action for his tres- pass. The landlord should therefore, in all such cases, resort to the law, and receive pos- session at the hands of an officer. The tenant is bound quietly to yield up the possession of the entire premises, although he still retains a reasonable right of egress or regress for the purpose of removing his goods and chattels. And for a refusal to perform this duty he will be subjected to all the statutory penalties of holding over. 1 CROPS E MBLEMENT S FIX- TURES, Etc. Generally an out-going tenant cannot sell or take away the manure.? A tenant whose estate has terminated by an uncertain event which he could neither foresee t-i Bingh. 158 ; 7 T. R. 431 ; Peace's Adm. Cas. 210. n-6Cush. 415; 6 E. L. & E. 424; S. C. 13 C. B. 178; ii Barb. 33. v-See GENERAL STATUTES, w-7 Wend, aio ; 24 Id. 454 ; 3 M. & S. 270 ; 5 Ohio, 303 ; n Met. (Mass.) 448; i Esp. 13: 13 Pet. i; 3 A. K. Marsh. 347 ; 10 111. 41 ; 20 Penn. St. 398 ; 6 Yerg. 280. x-i Addis. 14, 43 ; 10 Mass. 409 ; 8 T. R. 357 ; i Dev. & 235; 9 Vt - 352 : i Strobh. 313. y-6 Greenll 222 ; 7 Id. 201 ; 21 Pick. 367, 371 ; 22 Id. 437, 442 ; K. 324; 5 C. & P.,2oi.; i M.^c G. 644 ; i W. & S. 90 ; 13 Johns. 222; 7 Id Wend. 169; 17 Penn. St. 262; j N. H. 503." z-3 East" 38, contra 10 Barb. 496. a-3 East. 38. b-4 B. & Ad. 655. c-2 W. Bl. mi. l-n Rep. 50; 20 Wend. 363, 369. e-Co. Litt. 53, a. f-2 Kern. 170. {-7 C. & \ J . ytj. li-a Ves. & B. 349. i-Cro. J. 121. j-a B. & B. nor control, is entitled to the annual crop which he sowed while his estate continued, by the law of emblements. He may also, in cer- tain cases, take the emblements or annual pro- fits of the land after his tenancy has ended. And, unless restricted by some stipulation to the contrary, may remove such fixtures as he has erected during his occupation, and conven- ience, profit, or comfort. For, in general, what a tenant has added he may remove, if he can do so without injury to the premises, unless he has actually built it in so as to make it an integral part of what was there originally. IMMOVABLE FIXTURES. Agricultural ereo tions. 1 Fold-yard walls, Cart-house, Barns fixed in the ground, Beast house, Carpenter shop, Fuel house, Pigeon house, Pineries sub- stantially fixed, Wagon house.* Box borders not belonging to a gardener by trade, Flowers, Trees, Hedges.* Ale-house bar, Dressers, Partitions.' Locks and keys. d Benches af- fixed to the house.* Statue erected as an or- nament to grounds, Sun-dial. f Chimney piece not ornamental.* Closets affixed to the house. h Conduits. 1 Conservatory, substantially affixed.' Doors." Fruit trees, if a tenant be not a nur- seryman by trade.* Glass windows. 1 Hearths. Millstones. 11 Looms substantially affixed to the floor of a factory. Manure.? Threshing machines fixed by bolts and screws to posts let in^o the ground.i REMOVABLE FIXTURES, THOUGH NOT COM- ING IN THE CLASS OF TRADE FIXTURES. Arras hanging.' Barns resting by weight alone upon foundations let into the ground, or upon blocks. 1 Stables and out-houses.' Granaries resting by weight alone." Gas fixtures. T Beds fastened to the ceiling. w Carding machines. 1 Machinery.' Cotton spinning machines, screwed to the floor. 8 Coffee mills, Malt mills, Windmills on posts.* Ornamental chimney pieces. b Gates (if removable without injury to the premises), Pumps slightly attached. Iron Backs to chimneys, Tapestry. 4 Ornamental cornices." Fire frame/ Furnaces.* Looking- glasses. 11 Movable boards, fitted and used for putting up corn in bins, Padlock for a corn house. 1 Mills on posts.J Ornamental fixtures. k Rails and posts. 1 A ladder fixed on the ground and to a beam above, and which was the only means of access to the room above. A crane nailed at the top and .bottom to keep it in its place, a bench nailed to the 54. s-Moore, 177. fc-4 Taunt. 316. 1-Co. Litt. 53, a. ; 4 Rep. 63. m-i Salk. 368. n-n Rep. 50; 6 Mod. 187; Shep. Touch. 90. 0-20 Barb. 407. |>-2i Pick. 367; 15 Wend. 169; 6 Greenl. 222; 6 Foster, 34S: 7 Gi-eenl. 201. q-i8 E. L. & E. 142, S. C. : i E. & B 674. r-Rolle, 216. 8-4 A. & E. 884 ; B. N. P. 34. t- 10 Barb. 496. u-i8 E. L. & E. 142, S. C. ; i E. & B. 674. V-i Duer, 363. w-i Atk. 477. x-2o Wend. 636; 3 ISlackf. in ; 17 Johns. 116; 14 Mass. 352; 3 Vt. 425. y-io Barb. 157; i Ohio St. 511, 541. z-3 E. L. & E. 562; S. C. ii Exch. 113. a-6 T. R. 379. b-6 Bingh. 437 ; 30 E. L. & E. 595 ; S. C. Exch. 295. c-6 Bingh. 437. d-Stra. 1141. e-3 A. & E 75. f-t-j Pick. 193. Jj-Freera. Ch. 245. h-i P. Wms. 94. i-4 Pick. 310 j-4 Leon, 241. It-Amos & Ferand OB Fixtures, p. 67; i P. Wms. 94. l-i H. BL 5 8. 474 LANDLORD AND TENANT. wall, stables on rollers.J Stoves. k Window blinds.' Trade fixtures held removable. Brewery vessels, Colliery machines, Cider mills. m En- gines." Coppers. 9 Buildings accessory to re- movable trade fixtures.? Dutch barns.6g; 4 Johns. Ch. 520; 14 Eng. L. & Eq. 549 ; i Wall. jr. C. C. 47 : 4 Cow. 526. n-Story Confl. L. 641 ; i Greenl. Ev. g 486 : 14 How. 426; 2 Cranch. 237; 8 Ad. & E. 208; i Campb. 65 ; 6 Wend. 475; 10 Ala. (N. S.) 885 i Texas, 93, 10 Ark. 516. 0-4 Conn. 517; 12 Id. 31 would hold if the assignees had obtained possession. 1 An assignment by operation of law is good so as to vest property in the as- signees by comity of nations.J FOREIGN LAWS* must be proved as matters of fact. 1 Unwritten Laws must be proved by the opin- ion of experts." 1 Written Laws must be proved by the text, or a collection printed by authority, or a copy certified by a proper officer, or, in their aL- sence, perhaps, by opinion of experts as sec- ondary evidence," but the sanction of an oath? is required in such case. JUDGMENTS AND DECREES OF FOREIGN COURTS relating to immovable property within their jurisdiction are binding everywhere. And the rule is the same with regard to mov- ables within their jurisdiction.' Proceedings in rem are held conclusive every- where if the court had a rightful jurisdiction, founded on actual possession of the subject- matter. 1 ' But the decree may be avoided for matter apparently erroneous on the face of the record.* Proceedings under a garnishee process are held proceedings in rem; and a decree may be pleaded in bar of an action against a trustee or garnishee/ But the court must have rightful jurisdiction over the res* unless the court had actual jurisdiction over the person also. Judgments in personam, regular on their face, which are sought to be enforced in another country, are conclusive evidence, subject to a re-examination, in the courts where the new action is brought, only for irregularity, fraud, or lack of jurisdiction of the cause of action or parties thereto.' Any foreign judgment may be impeached for error apparent on its face.* Foreign judgments are admitted as conclusive evidence of all matters directly involved in the case decided where the same question is brought up incidentally.* Under the constitution of the United States, " full force and effect " are to be given the de- crees of the courts of any State in those of all other States. This is construed to mean that the judgment so obtained and properly authen. ticated shall be conclusive evidence of the rights of the parties/ but not unless actual per- 384 ; see 12 Vt. 396 ; Story Confl. L. ? 641 ; i Greenl. Ev. g 488, n. q-Story Confl. L. g 392 ; i Greenl. Ev. g 541. r-4 Cranch. 241, 293, 433; 7 Id. 423; o Id. 126; 4 Johns. 34; 3 Sumn. C. C. 600; i Story C. C. 157, i Johns. Cas. 341 ; I Harr. & J. 142 ; i Binn. 299 ; 3 Id. 220; 6 Mass. 277; 7 Id. 275. 8-7 T. R. 523; 8 Id4 444; i Caines Cas. 21. t-i Greenl. Ev. {542; 4 Cow. 520, n. 0-31 Me. 314; 7 B. Mon. 376; 9 Mass. 498 ; Story Confl. L. g 592 ; Greenl. Er. g 542. v-i Greenl. Ev. g 546 ; Westl. Priv. Int. L. 607; 2 Swanst. Ch. 325; Dougl. 6, . / 3 Sim. Ch. 458; 6 Q. B. 288 ; 16 Id. 717; 4 Munf. 241 ; 15 N. H. 227. That they are printa facie evidence merely, see 2 H. or: Q. Bl. 410; i)ongf. i, 6 ,-"3 Maule & S. 20; 9 Mass. 462 ; 8 Id. 273. w-2i Barn. & Ad. 757 ; i Green!. Ev. 547, n. x-i Greenl. Ev. g 547, and note; 12 Pick. 572 ; 7 Bost. L. Rep. 461. y-'S N. H. 227; 9 Mass. 467 ; n Vt. 425 ; 22 Id. 419 ; 7 Cranch, 481 ; 3 Wheat. 234 ; 15 Johns. 121 ; II How. 165 ; 5 Gill. & J. 300 ; 7 Ohio. 273 ; 9 S. & R. 252 ; 4 B. Mon. 136; 13 III. 436 ; 12 Ark. 756. 4 8o LAW. sonal jurisdiction was obtained. 1 And want of jurisdiction may be shown even to contra- dict the record,* and must be shown affirma- tively, if the record show jurisdiction on its face. The constitution and rules of comity apply only to civil judgments, and not to criminal. PARTICULAR PERSONAL RELATIONS. Executors and administrators have no power to sue or be sued by virtue of a foreign appointment as such d in the absence of a statute authorizing it. But an executor who has so changed his situation towards the action as to render it his own may sue in a foreign court. 8 Administration must be taken out in the situs (place of situation) of the property/ unless otherwise provided by statute. In general, administration is granted as of course to the executor or administrator entitled under the lex domicilii. In such cases the pro- bate granted in the place of domicil is the principal, and that in the situs ancillary.* There is no legal privity between them. h All property of the decedent which is in the jurisdiction of the court granting principal or ancillary administration, or which comes into it if not already taken possession of under a grant of administration, comes under its operation. 1 Ships and cargoes, and the pro- ceeds thereof, complete their voyages and re- turn to the home port.J The property of each jurisdiction is held liable for debts due in that jurisdiction, and the surplus is to be re- mitted to the principal administrator for distri- bution under the lex domicilii.* Each admin- istrator must give priority to claims according to the law of his jurisdiction. 1 But a trans- mission of effects or their proceeds to another jurisdiction does not divest a creditor's prece- dence." 1 Guardians have no power over the property, whether real or personal, of their wards, by virtue of a foreign appointment." Receivers in equity have no extra territorial powers by virtue of their appointment, and z-4 Bradf. Surr. 174"; 9 Mass. 467 ; 15 Johns. 121 ; 4 Conn. 380; 17 Id. 500; 6 Pick. 240; 4 Met. (Mass.) 333 ; 3 Gray, 508 ; it Vt. 425; 5 111. 536; 17 Id. 572 : 4 Harring. 280; 2 Blackf. 108; 29 Me. 19; 3 Ala. (N. S.) 552; 13 Ohio, 209. 11-13 Gray, 597 ; 15 Johns. 121 ; 19 Id. 162; 3 Binn. 241; 9 Mass. 467; 4 Cow. 292 ; 4 Cranch, 241 ; i R. I. 73 ; 2 Ind. 24; 15 111. 415 ; 7 Met. (Mass.) 343, but see 17^1.302; 4 Harring. 230. fo-4 Bradf. Surr. 174. -17 Mass. 515. d-Westlake, Priv. Int. Law, 279; i Greenl. Ev. j) 544; 2 Jones Eq. 276; 10 Rich. 393. It seems to be otherwise where a foreign executor has brought assets into the State. 18 B. Mon. 582; i Bradf. Surr. 241, and see 16 Ark. 28. Itis other- wise by statute in Ohio, 5 McLean C. C. 4. e-Westl. Priv. Int. L. 286; i HareCh. 86; 4 Beav. Rolls. 506. f-i2 Wheat. 109; 20 Johns. 229; i Mas. C. C. 381 ; i Bradf. Surr. 69. jr-3 Bradf. Surr. 233 ; 21 Conn. 577. h-35 N. H. 434. 1-3 Paige Ch. 459. J-Story Confl. Laws, \ 520. k-8 Clark & F. Ho. L. i ; 24 Beav. Rolls. 100 ; 3 Pick. 145 ; 3 Bradf. Surr. 233 ; 21 Conn. 577. In cases of insolvency, it is said the assets would be retained here for an equitable distribution among the creditors of an amount proportioned to Ihe whole amount of assets and claims. 3 Pick. 147. 1-Story Confl. L. 524 ; 5 Pet. 518; 20 Johns. 265. m-7 L. Jour. Ch. 135: Westl. Priv. Int. L. 293. 11-4 Cow. 52; i lohns. Ch. 153 ; Story Confl. L. J 504. As to the re- the comity of the States and Territories wi.'l hardly help a receiver.!" An appointment of a receiver does not vest the funds of a foreign jurisdiction.' Sureties come under general rules, and their contracts are governed by the Ux loci ; but in case of government bonds the seat of government is held to be the lex loci. T PERSONAL PROPERTY. Bills of exchange and promissory notes are to be governed, as to validity and interpreta- tion, by the law of the place of making, as are other contracts. The residence of a drawee of a bill of exchange, and the place of making a promissory note, where no other place of payment is specified, is the locus con- tractus,* where the place of address is said to be the place of making. As between the drawee and drawer and other parties (hut not as between an indorser and indorsee),* each in- dorsement is considered a new contract." The place of payment is, however, to be considered as the place of making. T The better rule as to the rate of interest to be allowed on bills of exchange and promissory notes, where no place of payment is specified, and no rate of interest mentioned, seems to be the interest of the lex loci.' 9 The damages recoverable on a bill of exchange not paid are those of the place where the plaintiff is entitled to reimbursement, and are generally fixed by statute. 1 Where the place of payment is specified, the interest of that place must be allowed.* Chattel mortgages, valid, and duly registered under the laws of the State in which the prop- erty is situated at the time of the mortgage, will be held valid in another State to which the property is removed, although the regulations there are different.* The registration of chattel mortgages and transfer of government and local stocks are frequently made subjects of positive law, which then suspends the law of the domicil. Such mortgage will be respected in preference to claims of citizens of the State into which the property is removed.' lations of foreign and domestic guardians, see 14 B. Mon. 544. 0-17 How. 3*2. p-3 Wend. 538; 3 Fla. 93. q. 17 How. 322; see 2 Paige Ch. 615. r-6 Pet. 172; 7 Id. 43-; Story Confl. L. 3 290. s-io Barn. & C. 21 ; i Woodb. & M. C. C. 381 ; 4 Carr. & P. 35 ; 4 Mich. 450 ; 6 McLean C. C. 622 ; 9 Cush. 46; 26 Vt. 698; n Gratt. 477; 3 Gill. 430; 8 Conn. 138; 6 Ind. 107; see n Texas, 54; 17 Miss. 220. t-io N. Y. 436, but see 14 Vt. 33. 11-14 B. Mon. 556; 5 Sandf. 330; 2 Ga. 158; 3 McLean C. C. 397. V-30 Miss. 59; 7 Ohio St. 134; 4 Mich. 450; 5 McLean C. C. 448; 13 N. Y. 290; 25 Barb. 383 ; 5 Sandf. 326 : 3 Gill. 430; 8 B. Mon. 306; 14 Ark. 189 ; 17 Miss. 220; 13 Grav. 597. but see 4 N. J. 319. w-6 John. 183 ; 5 Clark & F. Ho. L. I, 12 ; 6 Cranch. 221 ; 3 Wheat. 101 ; i Dall. 191 ; 12 La. An. 815 ; and see 9 Gratt. 31 ; 24 Miss. 463 ; 24 Mo. 65 ; Parsons' Contr. 238. x-4 Johns. 119; 6 Mass. 157; 3 Wash. C. C. 167; 3 Sumn. C. C. 523. y-i4Vt. 33; tt Barb. 115 ; contra 21 Ga. 135. It seems to be undecided whether the rate of interest which is legal by the lex loci, but higher than that allowed at the place of pay- ment, maybe reserved where a place of payment is spe- cified. That it may, Parsons' Contr. 06, n. ; 20 Mar- tin, i. That it may not, Story .Confl. Laws, \ 298. m/- 37 N. H. 86 ; 7 Ohio St. 134^ ; 12 Barb. 631 ; 8 Humph. 542. a-3o Vt. 42; overruling 23 Vt. 279 ; 7 Ohio St, 134; 12 Barb. 631 ; 8 Humph. 542. LAW. Questions of priority of liens and other claims are, in general, to be determined by the lex ret sitet, even in regard to personal prop- erty.* The existence of the lien will depend on the lex loci. 9 Movables in general. Personal property follows the owner, and hence its disposition and transfer are to be determined by the law of domicil. 4 CRIMINAL LAW is that branch of jurisprudence which treats of criminal offences. The extreme importance of a knowledge of criminal law is self-evident; for a mistake in point of law, which every person of discretion not only may know, but is bound and presumed to know, is in criminal cases no defence. This law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. 8 This doctrine has been carried so far as to include the case of a foreigner charged with a crime which was no offence in his own country.' And further, the criminal law, whether common or statute, is imperative with reference to the con- duct of individuals ; so that, if a statute forbids or commands a thing to be done, all acts or omissions contrary to the prohibition or com- mand of the statute are offences at common law, and ordinarily indictable as such.s When a statute punishes a crime by its legal designa- tion without enumerating the acts which con- stitute it, then it is necessary to resort to the common law for a definition of the crime with its distinctions and qualifications. So if an act is made criminal, but no mode of prosecution is directed or no punishment provided, the com- mon law (in the absence of a statute to the con- trary) furnishes its aid, prescribing the mode of prosecution by indictment, its mode of punish- ment by fine and imprisonment. So far, there- fone, as the rules and principles of the common law are applicable to the administration of the criminal law, and have not been altered or modified by legislative enactment or judicial decisions, they have the same force and effect as laws fihally enacted. 11 The following are some of the leading principles of the criminal law : 1. Every man is presumed to be innocent till the contrary is shown ; and if there is any rea- sonable doubt of his guilt, he is entitled to the benefit of the doubt. 2. In general, no person can be brought to trial till a grand jury on examination of the charge has found reason to hold him to trial. 3. The prisoner is entitled to trial by a jury of his peers, who are chosen from the body of the people with a view to impartiality, and whose decision on questions of fact is final. 4. The question of his guilt is to be deter- b-5 Cranch. 389 ; 4 Binn. 353 ; 14 Martin, 93 ; 2 Harr. & J. 193, 224 ; 3 Pick. 128 ; 3 Rawlc. 312 ; 13 Pet. 312 ; 17 Ga. 491 ; 4 Rich. 561 ; 13 Ark. 543; 3 Barb. 89. c- Story Confl. ^322, b.; 5 Cranch. 289. cl-4 Kent Comm. 428. e-Per Tindal, C. J. ; 10 Clark & F. 210. f-i El. ft B. i ; Dearsl. 51 ; 7 C. & P. 456 ; Russ. & R. Cr. Cas. mined without reference to his general char- acter, previous history or habits of life. 5. The prisoner cannot be required to crimi- nate himself, nor be compelled to exculpate himself by giving his own testimony on trial. 6. He cannot be twice put in jeopardy for the same offence. 7. He cannot be punished for an act which was not an offence by the law existing at the time of its commission; nor can a severer pun- ishment be inflicted than was declared by law at the time of its commission. The elements of criminal offences are, in general, as follows : CRIMES OR PUBLIC OFFENCES are wrongs which the State or Commonwealth notices as injurious to the public, and punishes in what is called a criminal proceeding in its own name. 1 Crimes are defined and punished by statutes and by the common law. Most common law offences are as well known and as precisely ascertained as those which are defined by statutes. Yet from the difficulty of exactly defining and describing every act which ought to be punished, the vital and preserving principle has been adopted that all immoral acts which tend to the prejudice of the com- munity are punishable criminally by courts of justice.^ Criminal offences are, in general, de- fined, and the mode of punishment prescribed by statute. Crimes are sometimes classified according tc the degree of punishment incurred by their commission. They are more generally ar- ranged according to the nature of the offence The following is, perhaps, as complete a clas- sification as the subject admits : I. Offences against the sovereignty of the State. 'I. Treason; 2. Misprision of treason. II. Offences against the lives and persons oj individuals. I. Murder; 2. Manslaughter) 3. Attempt to kill or murder; 4. Mayhem; 5, Rape; 6. Robbery; 7. Kidnapping; 8. Fatat imprisonment; 9. Abduction; 10. Assault and battery. III. Offences against public property. 4. Burning or destroying public property ; 2. In- jury to the same. IV. Offences against private property, I. Arson ; 2. Burglary ; 3. Larceny ; 4. Obtain- ing goods under false pretences; 5. Embezzle- ment ; 6. Malicious mischief. V. Offences against public justice. I. Per- jury; 2. Bribery; 3. Destroying public rec- ords; 4. Counterfeiting public seals; 5. Jail breach ; 6. Escape ; 7. Resistance to officers ; 8. Obstructing legal process ; 9. Barratry ; 10. Maintenance; n. Champerty; 12. Contempt of court; 13. Oppression; 14. Extortion; 15. Suppression of evidence; 16. Compounding felony; 17. Misprision of felony. 4. ff-Broom Comm. 865 ; Hawkins PI. Cr. Bk. 2 Ch. 25, ? 4 1 8 O. B. 883 ; see 15 M. & W. 404. h-s Cush. 303,304; 4 Met. (Mass.) 358 ; 13 Id. 69,70. j-i Bishop Cr. L. 43: see 4 Denio, 260; 6 Ark. 187,461. J-2 Rev. Swift Dig. 284; 2 East. 5, 21 ; 7 Conn. 386; j Cow. 258; 5 Pick. 26. LAW. VI. Offences against the public peace. I. Challenging or accepting a challenge to a duel; 2. Unlawful assembly; 3. Rows; 4. Riot; 5. Breach of the peace ; 6. Libel. VII. Offences against chastity. I. Sodomy; 2. Bestiality; 3. Adultery ; 4. Incest; 5. Big- amy ; 6. Seduction ; 7. Fornication ; 8. Las- civious carriage; 9. Keeping and frequenting houses of ill fame. VIII. Offences against public policy. I. False currency ; 2. Lotteries ; 3. Gambling ; 4. Immoral shows; 5. Violation of the right of suffrage; 6. Destruction of game, fish, etc. ; 7. Nuisance. IX. Offences against the currency, and pub- lic *nd private securities* I. Forgery; 2. Counterfeiting ; 3. Passing counterfeit money. X. Offences against religion, decency, and morality. \. Blasphemy; 2. Profanity; 3. Sabbath-breaking; 4. Obscenity; 5. Cruelty to animals ; 6. Drunkenness ; 7. Promoting intemperance.* XI. Offences against the public , individuals, pr their property. I. Conspiracy. ABDUCTION is the taking and carrying away of a child, a ward, a wife, etc., by force, fraud, persuasion, or open violence. 1 ABORTION is the criminal act of miscarrying or producing young before the natural time or before the foetus is perfectly formed, and before it has acquired the power of sustaining an in- dependent life. When in consequence of the means used to procure an abortion, the death of the mother ensues, it is murder. If the person, intending to procure an abortion, does an act which causes a child to be born so prematurely that it dies in consequence thereof, the person so bringing the child into the world, so putting it in a situa- tion in which it cannot live, is guilty of murder; and this guilt is not lessened from the mere existence of a possibility that something might have been done to prevent its death. ABUSE is to treat rudely, or with reproachful language, to revile. See AFFRONT, below. A person is liable for whatever injury arises from the abuse of property, while in his control or custody, unless it is occasioned by inevit- able accident or causes wholly beyond their control. An ACCESSORY is an abettor ; an accomplice. One who is guilty of a felony, misdemeanor, or treason ; not by committing the offence in person or as principal, but by advising, assisting, or commanding another to commit the crime, or assisting him to escape, or concealing him. One who not being the principal is in some way con- cerned in the commission of the offence, either before or after its commission. No one who is principal can be accessory. In many States all are considered principals. An accessory after the fact is one who, knowing an offence to have been committed, assists, comforts, con- k-See a Sharsw. Bl. Conn. 42, et seg. I-B1. Comm. m-2 Carr. & K. 784. 11-4 Bl. Comm. 37. O-i Hale PI. Cr. 615. p-i Id. 618. q-i Russ. & R. Cr. Cas. $63; i Den. Cr. Cas. 37; i Carr. & K. 589. r-i Fast ceals, receives or relieves the offender." An accessory before the fact is one who, being ab- sent at the time an offence is committed, yet commands, counsels, or procures another to commit it. When the act is committed through the agency of a person who has no legal dis- cretion nor a will, as in the case of a child or insane person, the inciter, though absent when the crime was committed, will be considered not an accessory, for no one can be an accessory to the acts of a madman, but a principal.? But, if the instrument is aware of the consequences of his act, he is a principal, and the employer, if absent when the offence is committed, is an accessory before the fact,i or, if he is present, a principal in the second degree,' unless the instrument concur in the act merely for the pur- pose of detecting and punishing the employer, in which case he isconsidered as an innocent agent.' An accomplice is an abettor, an accessory, and confederate; an associate in crime ; a part- ner or partaker in guilt. One who is in some way concerned in the commission of a crime, though not as a principal. All persons who have been concerned in the commission of a crime, all particeps criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as ac- cessories before or after the fact.* It is a rule of practice that a jury should not convict on the unsupported evidence of an accomplice; and the judge will, in general, advise the jury to acquit, unless the testimony of the accomplice is corroborated, not only as to the circumstances of the offence, but also as to the participation of the accused in the trans- action ; and where several parties are charged, that it is not sufficient that the accomplice should be confirmed as to one or more of the prisoners, to justify a conviction of those prison- ers with respect to whom there is no confirma- tion. 11 AN ACCUSATION is a charge, in writing, upon oath or affirmation, against one or more persons of a felony or misdemeanor. An ac- cusation is generally made in the form of an affidavit or complaint before some magistrate authorized to try, acquit, bind over, or convict the offender. In courts of competent and general jurisdiction the accusation is presented in the form of an indictment or information. An indictment is based upon the finding of a grand jury. An information is based upon the affidavit or complaint of any competent person supported by his oath or affirmation. In an accusation before a magistrate, it is sufficient, as a general rule, to describe the of-' fence in the words of the statute.' The essential requisites of an accusa- tion are : I. It must be presented to some court having jurisdiction of the offence stated therein. Cr. Cas. 349. 8-2 Mood. Cr. Cas.joi ; i Carr. & K. 395. t-Fost. Cr. Cas. 341 ; i Russ. Cr. 21 ; 4 Bl. Comm. 331; i Phill. Ev. 28; Merlin Rep. Compile. 0-7 Cox Cr. Cas. 20; Dearsl. Cr. Cas. 555; 20 Pick. 397; 10 Cush. 535 ; see i Fost. & F. Cr. Cas. 388. v-8 Ras. 288. LAW. 483 2. // must be made by a person competent to testify. 3. It must be made in writing, under oath or affirmation of the accuser. 4. It must charge the person accused with the commission of a felony or misdemeanor ; for this purpose, the charge must contain a certain description of the felony or misdemeanor of which the defendant is accused, and a state- ment of the facts by which it is constituted, so as to identify the accusation. 1 * 5. // must be in the English language ; but if any document in a foreign language be necessarily introduced, it should be set out in the original tongue, and then translated, show- ing its application. 1 6. It must be subscribed by the accuser. 7. // must be sworn to before an officer z.athorized to administer an oath. The formal requisites of an accusation are : 1. The venue must always be laid in the county where the offence has been committed, although the charge be in its nature transitory, as a battery J The venue is stated in the mar- gin, thus : " State of , County, ss." 2. The name of the defendant ; but in case an error has been made in this respect, it is cured by the plea of the defendant, 1 and the facts are entered accordingly. 3. The names of third persons, when they must be necessarily mentioned in the complaint, should be stated with such certainty as to sufficiently inform the defendant who are his accusers. When, however, the names of third persons cannot be ascertained, it is sufficient, in some cases, to state " a certain person or persons to this affiant unknown."* 4. The time when the offence -was committed should, in general, be stated to be on a specific year and day; b but, though it is necessary that a day certain should be stated in the complaint, yet, in general, the prosecutor may give evidence of an offence committed on any other day previous to the making of the accusation. 5. The offence should be properly described. And, as a general rule, it is sufficient to de- scribe the offence in the words of the statute. The whole facts of the case necessary to make it appear judicially to the court that the accuser has gone upon sufficient premises, should be set forth ; but there should be no un- necessary matter, nor anything which, on its face, makes the accusation repugnant, incon- sistent, or absurd. The offence must not be stated in the dis- junctive; as, that the defendant committed, or caused to be committed, etc., so as to leave it W-Cowp. 682; 2 Hale PI. Cr. 167; i Binn. 201 ; Id. 533; 4 S. & R. 194; 6 Id. 398; 4 Sharsw. Bl. Comm. . t~* 1_ _^_ T^ r> _^ TT 1 Tl /-* R. 489! R-Hawk. PI. Cr. 'b. *,<:. 25 Jj 71 ; 2' East. PI. Cr. 651, 781 ; 2 Hale PI. Cr. 181 ; Pl'owd. 85 ; Dyer, 97, 286 ; 8 C. & P. 773. D-In some offences, as in per- jury, the day must be precisely stated, 2 Wash. C. C. }a. c-$ S. & R. 316; see ix Id. 177; i Chitty Cr. L. uncertain on what it is intended to rely as an accusation. d The following rules should be observed in drawing an accusation : 1. Keep near the words of the statute. The pleader must keep reasonably near the words of the statute, or there will be a variance, and on this ground the accusation will be defective.* 2. Negative averments to show affirmatively an offence. No accusation is sufficient which alleges an act or omission in itself innocent, unless it proceed to disclose circumstances which render such act or omission illegal.* It is not necessary that the negative aver- ments should be made in strict conformity to the exact words of the statute; whatever amounts to a substantial negative is sufficient.' An unnecessary negative will be rejected as surplusage; it needs no proof. 3. If there is an exception in the enacting clause of the statute, the party pleading must show that the defendant is not within the ex- ception ; but if there be an exception in a sub- sequent claitse, or a subsequent statute, that is matter of defence, and is to be shown by the other party. 11 4. Matters of defence are never necessary in an accusation. Commencement and Conclusion of an Accusation. State of , county, ss. A. B. , being duly sworn, says: That C. D., on the day of , A. D. , in the county of , and State of , did then and there unlawfully (or feloniously, etc.), (here de- scribe the offence committed). A. B. Subscribed and sworn to, before me, this day of , A. D. . M. R., Mayor, or P. J., Police Judge, or J. P., Justice of the Peace, etc. See INDICTMENT; INFORMATION, below. Amendment of Accusation. The accusation, the accused being present and consenting, may, of course, be amended to an extent to which it is not easy to set limits; 1 or if the evidence satisfies the magistrate that a crime different from the one charged against the prisoner has been committed by him, he may hold him until a fresh accusation is drawn, covering the crime as proved.J In this case the prisoner is held on the original accusation, which, under such circumstances, the magistrate is not bound to dismiss until the proper accusation is made against him. But if a person known to the magistrate happens to be in his court, and he suspects an absent person has an accusation to make against him for a misdemeanor, he cannot detain him and send for the person. The magistrate should have the charge actually made before he detains the party.* Unless it for a felony. 217,224; i Chitty PI. Index, Time; 17 Wend. 475; 2 Dev. 567 ; 6 Miss. 14 ; 4 Dana, 496; i Cam. & N. 369; i Hawks, 460. d-6 Dowl. & R. 143; 2 Str. 900; Rolle Abr. 31. 6-29 Vt. 60, 66 ; 34 Me. 500; 34 N. H. 495. f-Starkie Crim. PI. (2d Ed.) 171. -34 Me. 500; 12 Gray, 132 : 5 Humph. 102 ; 3 Ind. 193 ; 12 Gill. & J. 262. h-8 Am. Jur. 234; i Ben. & H. L. Cas. 255, 256. i-nCal.28o. J-4lnd. 428. fc-s C. & P, 206 ; i Moody & R. 169, 4*4 LAW. ACQUITTAL is a deliverance from the charge of an offence. A judicial decree of innocence, by a finding of the court, or the verdict of a jury. Acquittals in fact are those where upon the trial the defendant is pronounced innocent of the offence with which he is charged. Ac- quittals in law are those which take place by operation of law, as where one is charged as an accessory or accomplice, and the principal is acquitted. 1 An acquittal by a court of com- petent jurisdiction is a bar to any prosecution for the offence alleged in the first accusation, or for any inferior degree thereof. AN ADMONITION is a reprimand from a judge to a person accused, on being discharged, warning him of the consequences of his con- duct, and intimating to him that should he be again guilty of the same fault for which he is admonished, he will be punished with greater severity. 1 " ADULTERATION is the unlawful act of cor- rupting, or debasing, or rendering an article impure and unwholesome. Converting a pure and genuine article into something of less value for the purpose of deceit and gain, as an adulteration of food or drink. ADULTERY is the voluntary sexual inter- course of a married person with a person other than the offender's husband or wife." Viola- tion of the marriage bed ; a civil injury and crime which introduces or may introduce into a family illegitimate or spurious offspring. It is a criminal offence, punishable by fine or im- prisonment, or both. AFFRAY is a fight between two or more per- sons, by agreement, in a public place. No quarrelsome or threatening words will amount to an affray ,P there must have been a fight, and in a public place, for fighting in private is assault and battery, and not an affray .* AFFRONT is uncivil encounter; ill treat- ment; insult; offence; outrage. Anything contemptuous or reproachful that excites or jus- tifies resentment, as foul language or personal abuse. It usually expresses a less degree of abuse than insult. r " It appears probable that judicial combat was originally permitted in order to determine the points respecting personal character or reputa- tion of individuals, and was afterwards ex- tended not only to criminal cases but to ques- tions concerning property. Thus : If any man shall say to another these reproachful words : ' You are not a man equal to other men ; ' or, ' You have not the heart of a man ; ' and the irther shall reply : ' I am as good a man as you.' Let them meet upon the highway. If he who first gave offence appear, and the per- son offended absent himself, let the latter be deemed a worse man than he was called; let him not be admitted to giva evidence in judg- 1-Co. ad Inst. 364. m-Merlin Repert. n-Bishop Marr. & D. 415 ; 6 Met. 243 ; 36 Me. 261 ; n Ga. 56; ! Strobh. 174. o-i Blackf. 377; see Hawk. PI. Cr. Bk. iCh. 65, 3; i Bl. Comm. 146; i Russ. Cr. 271. p- Hawk. PI. Cr. Bk. i Ch. 63, J 3. q-Id. fc i ; i Crompt. M. & R. 757; i Co* Cr. C"as. I77 . r -S ee Merlin Rep. ment, either for man or woman ; and let him not have the privilege of making a testament. If he who gave the offence be absent, and only the person offended be present, etc., then let him who absented himself be deemed infa- mous, because he uttered words he durst not support. If both appear, properly armed, and the person offended shall fall in the combat, let a half compensation be paid for his death. But if the person who gave offence shall fall, let it be imputed to his own rashness. ' The petulance of his tongue hath been fatal to him.' Let him lie in the field without any compensation being demanded for his death."' This mode of settlement in modern times takes the form of the duel, a practice without sanction of law or morals, and prohibited under heavy penalties. By the laws of the Salians, if any person called another a "hare" (i. t., a timid, cowardly fellow), or accused him of having left his shield on the field of battle, he was or- dained to pay a large fine.* So, if one called another "Cettitlts" (a term of reproach equiva- lent to " Arga" below), he was bound to pay a high fine. And by the law of the Lom- bards, if one called another "Arga" (i. e., a good-for-nothing fellow), he might immediately challenge him to combat. T Courts Military and Chivalry, as courts of honor, were to give satisfaction to such as were aggrieved on that point ; a point of a nature so nice and delicate that its wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. Such, for instance, as calling a man a coward, or the more modern villifying epithets, or giving him the lie ; they are productive of no immediate damage to his person or property, yet they are such injuries as will prompt every man of spirit to demand some honorable amends.* The statutes of many of the States take cognizance of these offences in some general form. AFORETHOUGHT is premeditation. It is the length of time during which the accused has en- tertained the thought of committing the offence. The length of time is not very material, pro- vided he has in fact entertained such thought or premeditation ; he is thereby rendered crim- inal in a greater degree than if he had com- mittejd the offence without premeditation. 1 AGGRAVATION is the act or quality of in- creasing enormity, heinousness, severity, or wrong. In criminal actions one of the rules respecting variances is, that cumulative allega- tions, or such as merely operate in aggravation, are immaterial, provided that sufficient is proved to establish the same right, offence, or justifica- tion included in the charge, claim, or defence set up. The rule runs through the whole crimi- nal law, that it is invariably enough to prove so much of the charge as shows that the defendant 8-Vide Lex Uplandica, Stiernhook. p. 76. 1-Vide Leg. Sal. tit. XXXII, 29 4,6. u-ld. ? i. v-Vide Leg. Longob. lib. I, tit. V, | i. W-3.B1. Comm. 104. X-See 2 Chitty Cr. L. 783 ; 4 Bl. Comm. 199 ; Foster Cr. Cas. 132,291,292; Cro. Cur. 131 ; Palm. 545; W. Jones, 198; 4 Ball. 146, LAW. 485 rommitted a substantive crime therein speci- fied.' Thus, on an indictment for murder, the prisoner may be convicted of manslaughter, for the averment of malice aforethought is merely matter of aggravation. 1 AIDING AND ABETTING is the act of being in such communication, and so situated during the perpetration of a crime, as to readily aid the perpetrators thereof. Actual presence is not necessary; it is sufficient if so situated as to come readily to the assistance of his fellows.* Although not the direct perpetrator of a crime, yet if the person be present at its commission doing some act to render aid to the perpetrator thereof he is, in contemplation of the law, an aider and abettor. b AID AND COMFORT is assistance or encour- agement, either by furnishing strength or means to effect a purpose, or to prevent or remove evil. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. AMERCEMENT is the pecuniary penalty or fine imposed upon an offender by a judicial tribunal. AMNESTY is an act of oblivion; a general pardon of the offences of subjects against the government, and usually upon condition that they return to their allegiance within a given period. It is the proclamation of such act. Amnesty is either express or implied, general or limited : express when in direct terms ; im- plied when it results from a treaty of peace made between the contending parties ; d general when it applies to all; limited when certain classes are excluded from its operation. It differs from pardon, for pardon is given to one who is certainly guilty, or has been convicted, while amnesty is given to those who may have been so. Amnesty is the act of the sovereign power whose object is to efface and cause a crime or misdemeanor to be forgotten ; pardon is the act of the same power whose object is to exempt the individual from the punishment which the law applies for the crime he has committed. 8 Pardon remits a part or the whole of punish- ment awarded. Amnesty destroys the effect of the criminal act. Pardon is given to individuals after conviction Amnesty is granted either before or after. AMOTION is the unlawful taking of personal property out of the possession of the owner, or of one who has a special authority in them. AMMO; ANIMUS. See INTENTION, below. ARRAIGNMENT is the act of calling a defend- ant before the court or tribunal to answer to the accusation, charge, or impeachment contained in the information or indictment. Arraignment consists: I. In calling the y-Per Ld. Ellenborotigh ; 2 Campb. 583 ; 4 B. & C. 379 ; 21 Pick. 525 ; 4 Gray, 18; 7 Id. 49, 331 ; i Tayl. Ev. \ 215. J5-Co. Liu. 282, a., a-13 Mo. 382. b-4 Sharsw. Bl. Comm. 34 ; Russ. & R. Cro. Cas. 363, 421 ; 9 Ired. 440 ; i Woodb. & M. C. C. 221 ; 10 Pick. 477 ; 13 \Vhart. 460; 16 Miss. 299. c-Const. U. S. Art. 3, \ 3; tte post, TREASON. 74, p. 307. So A>ng as a party liable to arrest endeavors peaceably to avoid it, he may not be killed ; but whenever by his conduct he puts in jeopardy the life of any attempting to arrest him, he may be killed, and the act will be ex- in the case of a breach of the peace, or any other misdemeanor, short of felony,' if the offi- cer should pursue a defendant flying in ordef to avoid an arrest, and should kill him in the pursuit, this will be murder or manslaughter, according to the circumstances by which such homicide may have been attended. b If a man is committing a felony, and an officer attempts to arrest him, yet he runs away, and the officer calls on him to stop, if ht will not stop, the officer is justified in snooting at him to compel him to stop ; but if the of- fence is a misdemeanor, he has no right to take this extreme measure. Where the arrest has actually been made, whether for felony or misdemeanor, if the per- son attempts to break away, he may be killed to prevent it, provided this extreme measure is necessary." 1 Where there is an attempt at an unlawful arrest, as, for instance, where an officer under- takes to arrest without a warrant, and not on fresh pursuit, one whose crime is no more than a misdemeanor, the person on whom the at- tempt is made may lawfully resist, Uicyugh not to the taking of life ; e and if, in such resist- ance, he takes the officer's life, his crime will only be manslaughter. 1 So, the person thus unlawfully arrested is justified in escaping if he can ;* and an attempt to re-arrest him will be equally unlawful wiih the first arrest. h But there are circumstances in which, if the person arrested submits, he waives an objection which he might have taken ; and in these circum- stances, he has no right afterward to escape.' One having custody of an arrested person should treat him well, but may even inflict death to prevent his escape, where no other means are available. A fortiori, an officer who has a prisoner under arrest may tie him if this is necessary ; and where an officer acts honestly and from pure motives, he is to be himself the sole judge of the necessity of such a measure as this.J If, then, having arrested the prisoner lawfully, the latter breaks away, he may retake him without any fresh warrant, k and this even where the officer has consented to the escape. 1 ARREST WITHOUT A WARRANT. By private persons. In felonies and in treason. If the offence has been in fact com- mitted, and a private person has reasonable cause to suspect a particular person to be guilty of its commission, he may, acting in good faith, disable, State vs. Anderson : i Hill, 327. b-RussclI Crimes, Vol. i, B. Ill, $ 3. C-2 Den. C. C. 35 ; com- pare with Bishop Cr. L. Vol. 1, 528, II, g. Cr. so must violence as is necessary to retake it, and no more; " but if he cannot retake it by reason of its destruction, or otherwise, he may still execute the command of the warrant, and return the facts. The officer should, as soon as he conven- iently can, though he may do so at any time afterward until the object of the warrant is satisfied,? proceed with secrecy to find out and actually arrest the party ,1 not only in order to secure him, but also to subject him, and all other persons, to the consequences of escape and rescue. And if he refuse or neglect to execute the warrant, he will be punishable for his disobedience or neglect. 1 " Breaking Doors, etc. To make an ar- rest in criminal actions the officer may break open any outer or inner door or window of a dwelling-house, or other building, or any other enclosure, if, after notice of his office and pur- pose, he be refused admittance. 8 But this does not authorize any officer executing a search- warrant to enter any house or building not de- scribed in the warrant. A private individual, in order to justify breaking open doors without a warrant, must, in general, prove the actual guilt of the party arrested; and it will not suffice to show a felony has actually been committed, or that reasonable ground of suspicion existed. But an officer acting bona fide on the positive charge of another will be excused, and the party making the accusation will alone be liable.* The breaking of an outer door is, in general, so violent, obnoxious, and dangerous a pro- ceeding that it should be adopted only in ex- treme cases, where an immediate arrest is requisite. The house of a third person, if the offender fly to it for refuge, is not privileged, but may be broken open after the usual demand ; for it may even be so upon civil process." But it is at the peril of the officer, that the party against whom he obtained the warrant be found there. T This doctrine is also recognized as respects civil process." If a party be once actually arrested and escaped from custody, any door may be broken open to retake him, after proper demand of admittance. 1 When an officer, after obtaining admittance, is locked in, or otherwise prevented from re- tiring, and whether executing civil or criminal process, he may break out by any means in his power. And a sheriff may break open the Stat. L. (2d Ed.) 69. O-T Hayw. 471 ; 13 Mass. 321 : 10 Wend. 514. p-Peake,2^4. q-Dalt. Just. 169; Dick. Just. Arrest IIL r-Cro. Eliz. 664; I Hals. P. C. 581. 8-2 B. & Aid. 592 ; 14 East. 163 ; Foster, 329 ; 2 Hawk. P. C. c. 14, 2 i : 3 B. & P. 229 ; Barl. Just. Arrests ; Dick. Just. Arrests. t-Dougl. 358; Dick. Just. Ar- rests, III. M-5 Co. 91 ; a Hale P. C. 117. V-2 Hale P. C. 117; 5 Co. 63, a. ; i Marsh. 565; 6 Taunt. 246. W-i Marsh. 565; 3 B. & 6.223; Dick. Just. Arrest, III ; 13 Mass. 520; 10 Wend. 300; 14 B. Mon. 395 ; see post title ARREST. x-Foster, 320 ; 6 Mod. 173, 174; Salk. 179 ; i Hale P. C. 459; a Hawk. P. C. C. 14, g 9 ; Dick. Just. Arrest, III. LAW. 489 door of a house to rescue his bailiffs, unlawfully detained within it.' An officer, once entering a house, either upon civil or criminal process, may, after ineffectually demanding admittance, break open any inner door that obstructs his progress. 1 DISPOSITION OF ARRESTED PERSON. When Arrested without a Warrant. When a private person arrests a man without a war- rant, he should cause him w as soon as conven- ience will permit, to be brought before some justice of the peace, by whom the prisoner may be examined and bailed, orcommitted to prison.* Where a private person has apprehended an- other assisting in an affray, he may lawfully de- tain him till the heat is over, and then deliver him to the constable. 1 * An officer having arrested the offender, in case of an affray, may confine him till the heat of his passion, or intemperance is over, or till he can bring him before a justice of the peace ; and in all cases, he should carry the offender before a justice of the peace as soon as circum- stances will permit. 3 And a constable arrest- ing a man on suspicion of felony, must take him before a justice of the peace to be examined as soon as he reasonably can ; and cannot justify handcuffing a prisoner, unless it be necessary to prevent his escape. 9 When Arrested under a Warrant. " When an officer has made his arrest, he is, as soon as possible, to bring the party to the jail, or the justice, according to the import of the war- rant,"' if permitted or required by the law. If he be guilty of unnecessary delay, it is a breach of duty.' But if the time be unseasonable, as in or near the night, whereby he cannot attend the justice, or, if there be danger of a rescue, or the party be ill, and unable at present to be brought, he may, as the case require, secure him or detain him in a house till the next day, or until it may be reasonable to bring him. h When brought before the magistrate the pris- oner is still considered to be in the custody of the officer, until he has been discharged, bailed, or committed to prison. 1 And the officer may keep his warrant for his own justification, and need only return to the magistrate what he has done in pursuance of his commands.! ARSON is the malicious burning of another's house* out-house, ship or shipping, store- house, or other property. The term " house " comprehends not only the very mansion-house, or residence itself, but all out-houses which are a part thereof, though not contiguous thereto, nor y-Cro. Jac. 555: Foster, 319 ; 6 Mod. 173 ; 2 Hawk. P. C. c. 14, ? ii : i Hale P. C. 459 : Dick. Just. Arrest, HI. -i Hale P. C. 459 ; Foster, 319 ; 3 B. & P. 229. a-i Hale P. C. 589; 2 Id. 77-81 ; 2 Hawk. P. C. c. 13, \-j; Id. C. l6,f3. fo-2 Hawk. P. C. c. 13, j! 8. c-i Chitty Cr. L. 23, 24. d-2 Hale P. C. 951, et seq. ; see 10 Wend. 514. e-4 B. & C. 596 : 6 D. & R. 623 ; see 24 How. (U. S.) 544 ; see also 2 Wash. C. C. 353. f-i Chitty Cr. L. 59. g-Fortes. 143; 2 Hale P. C. 119; see 5 Foster, 251 h-2 Hale P. C. 95, 96, 119, 120. l-i Chitty Cr. L. 60 : 2 Hale P. C. 120. 1-2 Ld. Raym. 1196; Dick. Just. Arrest, IV.. It-Co, jd Inst. 66; Bishop Cr. L. 2 415 ; 4 Bl. Comm. 220 ; 2 Pick. 320 ; 10 Cush. 470 ; 7 Gratt. 619 ; 9 Ala. 175 ; 7 Blagkf. j68 ; i under the same roof, such as the barn, cow- house, dairy-house, mill-house, sheep-house, stable, or the like, being within the dwelling- house enclosure, or same common fence as the dwelling or mansion itself. 1 The burning must have been both malicious and wilful, m that is, it must be done intention- ally, not accidentally. Generally, if the act is proved to have been done wilfully, it may be inferred to have been done maliciously, unless the contrary is proved." An intent to injure or defraud will be conclusively inferred from the wilful act of firing. But this inference will only arise where the act is wilful ; therefore, if the fire appears to be the result of accident, the party who is the cause of it will not be liable. The subject of arson is very generally regulated by statute. ASPORTATION is the felonious removal of goods from the place where they were depos- ited. A theft, though the goods are not car- ried from the house or apartment.? ASSASSINATION is murder committed for hire, without provocation or cause of resent- ment given to the murderer by the person upon whom the crime is committed/i AN ASSAULT is an unlawful setting upon one's person ; an attempt or offer to beat an- other without touching his person.' It is an unlawful offer or attempt, with force or vio- lence, to do a corporal hurt to another. It is force unlawfully directed or applied to the person of another, under such circumstances as to cause a well-founded apprehension of imme- diate peril. Aggravated assault is one committed with the intention of committing some additional crime. Simple assault is one committed with no in- tention to do any other injury. Any act causing a well-founded apprehen- sion of immediate peril from a force already partially or fully put in motion, is an assault,' unless justifiable. But if justifiable, it is not necessarily a battery or an assault. There are many other acts which are in the eye of the law assaults. Thus, if a master takes indecent liberties with a female scholar, without her consent, it is an assault.* If a medical practitioner unnecessarily strips a fe- male patient naked under pretence that he cannot otherwise judge of her illness, it is an assault, if he assisted in taking off her clothes." And carnal connection with a girl fourteen Leach Cr. Cas. C4th F.d.) 218. l-i C. & K. 533 ; 14 M. & W. 181 : 4 C. & P. 245; 20 Conn. 245; 16 Johns. 203; 18 Id. 115: 3 Jred. 570; 3 Rich. 242 ; 5 Whart. 427 ; 4 Leigh. 483 ; 4 Call. 109. m-Rosc. Cr. Ev. 272 : 2 East. PI. Cr. 1019, 1031 ; i Bishop Cr L. ? 259. n-i Ru?s. & R. Cr. Cas. 26. o-i Russ. & R. Cr. Cas. 207 ; i Mood. Cr. Pas. 263; 2 B. & C. 264. p-Bl. Comm |-Erskine Inst. b. 4, torn. 4, n. 45. r-As by lifting the fist or a cane in a threatening manner, or by striking at him and missing him. If the blow takes effect it is a battery. Bl. Comm. s-4 C. & P. 349; 9^.483,626; i Ired. 125, 375 ; n Id. 475 ; i S. & R. 347 ; 3 Strobh. 137; 9 Ala. 79; 2 Wash. C. C. 435- t-Russ. & R. Cr Cas. 130 ; Cox Cr. Cas. 64 ; 9 C. & P. 722, |i-i Moody, 19 ; i Lewis, is. 490 LAW. years of age, under pretence of thereby treat- ing her medically, she making no resistance from a bone fide belief that such was the case, was held an assault.* An unlawful imprison- ment is also an assault.* Assault is generally coupled with battery, and for the excellent practical reason that they generally go together; but the assault is rather the initiation or offer to commit the act of which the battery is the consummation. An assault is included in every battery.* Where a person is only assaulted still the form of the complaint is the same as where there has been a battery : " That the defendant assaulted, and beat, bruised, and wounded the plaintiff."? One who incites or procures another to commit an assault, though not present at its commission, nor otherwise participating therein, may be in- dicted and punished as a principal." AN UNLAWFUL ASSEMBLY is the meeting of three or more persons to do an unlawful act although they may not carry their purpose into execution. It differs from a riot or rout, be- cause in each of the latter cases there is some act done besides the simple meeting.* ATTAINDER upon a felon is, in effect, in gen- eral terms, that all his estate, real and per- sonal, is forfeited to the State; that his blood is corrupted, and so nothing passes by inherit- ance to, from, or through him; b that he can- not sue in a court of justice. The effect of attainder is abrogated by the constitution, q. v. AN ATTEMPT is an endeavor to accomplish a crime, carried beyond mere preparation, but falling short of its execution or any part of it. d It is an intent combined with an act which falls short of the offence intended.* There must be an intent to commit some offence which would be punishable if committed, either from its own character or that of its natural or probable con- sequences ; r and the offence intended must at least be a misdemeanor.* BANISHMENT is a punishment inflicted upon criminals by compelling them to quit a city, place, or country for a specified period of time, or for life.* BARRATRY is the offence of frequently ex- citing and stirring up quarrels and suits, either at law or otherwise. 1 An indictment for this offence must charge the offender with being a common barrator.^ and the proof must show at least three instances of offending.* An at- V-i Denio Cr. Cas. 580; 4 Cox Cr. Cas. 220; Tempi. &M.Cr. Cas.2i8. w-i Hawk. Pl.Cr. Ch.6i,?2. x-i Hawk. PI. Cr.c. 62, gi. y-i Saund.(6th Ed.) 14, a. z-i2 Ohio St. 214. a-See i Ired. 30 ; 9 C. & P. 91, 431 : 5 Id. 154: i BishopCr. L. 395; 2ld.{S 1039,1040. fo-i Wins. Saund. 361, n. ; 6 Co. 63, a, 68, b. ; i Rob. Eccl. 547 ; 24 Eng. L. & Eg. 598. c-Co. Litt. 130, a. d-s Cush. 367. e-i Bish. Cr. L. 510; 1463. 55; 14 Ala. (N. S.) 411. f-3 Harring. 571; 18 Ala. (N. S.) 532; i Park. Cr. Cas. 327; 9 HTumphr. 455 ; 7 C. & P. 518; 8 Id. 541 ; i Crawf. & D. Cr. Cas. 156, 186 ; i Bish. Cr. L. ?? 53-5'8. g-i Crawf. & D. Cr. Cas. 149; i Ct. M. 661, n. ; i Dall. 39 ; i Bish. Cr. L. ? 528. h-See 4 Dall. 14. i-4 Bl. Comm. 134; Co. Litt. 368. j-i Sid. 282; Train & H. Free. 55. k-is Mass. 227; i Cush. 23; i Ball. 37V. I-i Bail. 379 ; see i Bishop Cr. L. $ 401, 645, 646 ; W> '& 57" 61 J * Co. 36 b; 9 Cow. 587; 15 Mass. 229 ; torney is not liable to an indictment for main- taining another in a groundless action. 1 BATTERY is an unlawful beating, or other wrongful physical violence or constraint in- flicted on a human being without his consent." It must be either wilfully committed, or pro- ceed from the want of due care. n Hence, an injury, be it never so small, done to the person of another in an angry, spiteful, rude, or insolent manner, as by spitting in his face,* or on his body, * or in any way touching him in anger, r or violently pushing him, are batteries in the eye of the law.* And any- thing attached to the person partakes of its irrriolabilty. If, therefore, A. strikes a cane in the hands of B. it is a battery." A battery may be justified : 1. As a mode of correction a parent may correct his child ; a master his apprentice ; a school-teacher his scholar/ and a superior officer one under his command. w 2. As a necessary means of defence of the per- son against the plaintiff's assault in the follow- ing instances : in defence of himself, his \vife, x his child, and his servant^ So, likewise, the wife may justify a battery in defending her husband, 1 the child its parent,* and the servant his master or mistress. In these relations the party need not wait until a blow has been given, for then he might come too late, and be disabled from warding off a second stroke, or from protecting the person assailed. Care, however, must be taken that the battery do not exceed the bounds of necessary defence and protection; for it is only permitted as a means to arrest an impending evil, which might otherwise overwhelm the party, and not as a punishment, retaliation, or revenge, for the injurious attempt. The degree of force neces- sary to repel an assault will naturally depend upon and be proportioned to the violence of the assailant ; but with this limitation any de- gree is justifiable. 3. As a defence to one's property. If the plaintiff is in the act of entering peaceably upon the defendant's land, or, having entered, is dis- covered, not committing violence, a request to depart is necessary in the first instance." 1 And if the plaintiff refuses, the defendant may then, gently lay hands upon the plaintiff and remove him from the premises, and for this purpose may use, if necessary, any degree of force short of striking the plaintiff; as, by thrusting him off. 8 If the plaintiff resists, the defendant may ir Pick. 432 ; 13 Id. 362. m-2 Bishop Cr. L. ? 62 ; 17 Ala. 540; 9 N. H. 491. n-Strange, 596; Hob. 134; Plowd. 19; 3 Wend. 391. 0-9 Pick. i. p-6 Mod. 172. |-i Swint. 597. r-i Kuss. Cr. 751. s-See 4 Hurlst. & N. 481. t-i Hawkins PI. Cr. 263; see i Selwyn N. P. 33. U-i Dall. 114; i Penn. 380; i Hill (S. C.) 46; 4 Denio, 453 ; 4 Wash. C. C. 534 : i Baldw. C. C. 600. V-24 Edw. IV; 4 Gray. 36; 2 Dev. & B. 365. W- Keilw. 136; B. N. P. 19; Bee Ad m. 161 ; i Bay. 3; 14 Johns, no; 15 Mass. 365. X-3 Salk. 46. y-Ow. 150; but see i Salk. 407. z-Ld. Ra laym. 62. a-3Salk. 46. b- Strange. 593 : i Comst. 34 ; 4 Vt. 629 ; 4 J. J. Marsh. 578; 2 Bish. Cr. L. 561. c-i Ld..Raym. 177; 2 Salk. 642 ; ii Humphr. 200 ; 4 Barb. 460 ; 2 N. Y. 193 ; i Ohio St. 66; 23 Ala. (N. S.) 17, 28; 14 B. Mon. 614; 18 Id. 49; 16 111. 17; jGa, 85. 4-2 Salk. 641. e-Skiua. 8. LAW. 49 force to force/ But if the plaintiff is ;n the act of forcibly entering upon the land, or, having entered, is subverting the soil, cutting down a tree or the like,* a previous request is unnecessary, and the defendant may immedi- ately lay hands upon the plaintiff. 11 A man may justify a battery in defence of his personal prop- erty without a previous request, if another forci- bly attempt to take away such property. 1 4. As a means of preserving the peace, in the exercise of an office, under process of court, and in aid of an authority at law. See ARREST, below. BAWDY HOUSES are houses of ill-fame, kept for the resort and unlawful commerce of lewd people of both sexes. It must be reputed of ill-fame ;J it may be a single room; k but more than one woman must live and resort there. 1 It need not be kept for lucre. Such a house is a common nuisance, 11 and the keeper may be indicted ; and, if a married woman, either alone or with her husband. One who assists in establishing such a house is guilty of an indict- able misdemeanor ,P including a lessor who has knowledge.^ A charge of keeping a bawdy house is actionable, because it is an offence which is indictable at common law as a com- mon nuisance, and clearly involves moral tur- pitude.' See BROTHEL, below. BIGAMY is the wilfully contracting a second marriage, when the contracting party knows that a first is subsisting the state of a man hav- ing two wives, or of a woman having two hus- bands, living at the same time. When the man has more than two wives, or the woman more than two husbands, living at the same time, then the party is said to have committed polygamy; but the name of bigamy is more frequently given to this offence in legal pro- ceedings.* If a woman who has a husband living marries another person, she is punish- able, though her'husband has voluntarily with- drawn from her, and remained absent and un- heard of for any term of time less than seven years, and though she honestly believes, at the time of her second marriage, that he is dead.* On trial of a woman for bigamy, whose first husband had been absent from her for more than seven years, the jury found that they had no evidence at the time of her second marriage she knew that he was alive, but that she had means of acquiring knowledge of that fact, had she chosen to make use of them. It was held upon this finding that the conviction could not be supported. If a man is prosecuted for bigamy, his first wife cannot be called to prove her marriage with the defendant^ Where the first marriage was made abroad, it must be shown to have been valid when made." Repu- f-8 T. R. 78 ; 2 Met. (Mass.) 23. g-2 Salk. 641. h- 8 T. R. 78. i-2 Salk. 641 ; see 7 Met (Mass.) 596; 12 Id. 482 ; 4 Cush. 608 ; 6 Cox Cr. Cas. 461. j-i7 Conn. 467: butsee 4CranchC. C. 338, 372. fc-i Salk. 382 ; 2 La. Raym. 1197. 1-s Ired. 603. nt-2i N. H. 435; 2 Gray, 357; 18 Vt. 70. n-i Russ. Cr. 299 ; Bac. Abr. Nuisances. O-i Met. Mass. 151. p-2 B. Mon. 417. q-3 Pick. 26 ; 6 Gill, 425. r-13 Johns. 275 ; 5 M. W. 249. s-i Russ. Cr. 187. t-? Met. (Mass.) 472. u-i tation is not sufficient to establish the fact of th first marriage. 1 If the second marriage be a foreign State, it is not bigamy,' except statute. 1 The second marriage is not neces- sarily valid.' The punishment of this offence varies in the different States. BILLS OF INDICTMENT are written accusa- tions of one or more persons of a crime or misdemeanor, lawfully presented to a grand jury. If twelve or more members of the jury are satisfied that the accused ought to be tried, the return is made, " A true bill ;" but when no sufficient ground is shown for putting the accused on trial, a return is made, " Not found," "Not a true bill," or " Ignoramus."* See ACCUSATION, above. BILL OF PAINS AND PENALTIES is a special act of the legislature which inflicts a punish- ment less than death upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. It differs from a bill of attainder in this, that the punish- ment inflicted by the latter is death. It has been thought by some that the clause in the federal constitution prohibiting bills of at- tainder includes bills of pains and penalties." 1 BLASPHEMY consists of speaking evil of the Deity with an impious purpose to derogate from the divine majesty, and to alienate the minds of others from the reverence of God. It is purposely using words concerning God calculated and designed to impair and destroy the reverence, respect, and confidence due to him as the intelligent Creator, ruler, and judge of the world. It embraces the idea of detrac- tion, when used towards the Supreme Being; as " calumny " usually carries the same idea when applied to an individual. It is a wilful and malicious attempt to lessen men's rever- ence of God by denying his existence, or his attributes as an intelligent Creator, governor, and judge of men, and to prevent their having confidence in him as such. 8 The statutes of the different States enacted against this offence are not understood in all cases to have abrogated the common law ; the rule being that where the statute does not vary the class or character of an offence, but only authorizes a particular mode of proceed- ing and of punishment, the sanction is cumula- tive, and the common law is not taken away. Neither these statutes nor the common lew doctrine is repugnant to the constitutions of those States in which the question has arisen/ BREAKING BULK. This doctrine proceeds upon the ground of a determination of the Dearsl. & B. Cr. Cas. 98. v-T. Raym. i ; 2 Taylor Ev. 1228. w-5 Mich. 340. x-i Park. Cr. Cas. 378 ; see 13 Ired. 289. y-2 Park Cr. Cas. 195. 85-36 Eng. L. & Eq. 614. a-i Carr & K. 144. fo-See n Cush. 473; 13 N". H. 488; 5 Me. 432, Bennett's note, c-2 Wooddeson Sect. 625. d-6 Cranch. 138 ; Story Const. ? 1338. e- Per SHAW, C. J. ; 20 Pick. 211, 212 ; see Evlyn's Pref. to Vol. 8, St. TV; 20 Pick. 244. f-Heard Lib. & S. J 343; 20 Pick. 206; ii S. & R. 394; 8 Johns. 290; 4 Sandf. 156; 2 Harring. 553; a How. 127. 49* LAW. purity of the bailment by the wrongful act of the ba>lee. Thus, where a carrier has agreed to carry certain bales of goods which were de- livered to him, to Southampton, but carried them to another place, broke open the bales, took the goods contained in them feloniously, and converted them to his own use, the ma- jority of the judges held that if the party had old the entire bales it would not have been felony ; " but as he broke them, and took what was in them, he did it without warrant," and was so guilty of a felony.* If a miller steals part of the meal, " although the corn was given to him to grind, nevertheless if he steal it, it is a felony, being taken from the rest." h BREAKING DOORS. See ARREST, above. BRIBERY is the (giving or) receiving or offering any undue reward by or to any person whomsoever, whose ordinary profession or business relates to the administration of public justice (as well as all other officers), in order to influence his behavior in office, and to in- duce him to act contrary to his duty, and the known rules of honesty and integrity. 1 An attempt to bribe, though unsuccessful, has been holden to be criminal, and the offender may be indicted.* BROTHEL is a bawdy house; a common habitation of prostitutes. Such places have always been deemed common nuisances. For a history of these pernicious places. k BUGGERY. See SODOMY, below. BURGLARY is the breaking and entering the house of another in the night time, with intent to commit a felony therein, whether the felony be actually committed or not. 1 1. To be burglary the breaking and entry must be felonious ; if a felony, however, be committed, the act will be prima facie evi- dence of an intent to commit it. If the breaking and entry be with an intention to commit a trespass, or other misdemeanor, and nothing further is done, the offence will not be burglary." 2. To be burglary, there must be both a breaking and an entry, or an exit. An actual breaking takes place when the burglar breaks or removes any part of the house or the fastenings provided for it, with violence. Breaking a window, taking a pane of glass out, by break- ing or bending the nails or other fastenings ;P cutting and tearing down a netting of twine U-i3 Edw. IV, Fol. o. h-Rolle Abr. 73, PI. 16 ; i Pick. 375. i-Co. 3d Inst. 149 ; i Hawk. PI. Cr. Ch. 67, a ; 4 Bl. Comm. 139 ; i Russ. Cr. 156. j-a Dall. 184; 4 Burr. 2500; Co. 3d Inst. 147; 2 Campb. 229; a "(Vasti. 88; i Va. Cas. 138; 2 Id. 460. k-See Merlin Repert ; Bordtl ; Parent Duchatellet ; De La Prosti- tution dans la Legislation sur its Fentnies Publiquts, >tc., par M. Sabatier. 1-Co. 3d Inst. 63; i Hale PI. Cr. 549; i Hawk. PI. Cr. Ch. 38, \ 124 ; Bl. Comm. 224: 2 East. PI. Cr. Ch. 15, i, p. <8 4 ; 2 Russ. Cr. 2 ; Rose. Cr. Ev. 252 ; i Coxe, 441 ; 7 Mass. 247. m-i Gabhett Cr. L. 192. n-7 Mass. 245 ; 16 Vt. 551 ; I Hale PI. Cr. 560; East. PI. Cr. 509, 514, 515 ; 2 Russell Cr. 33. O-i Bishop Cr. L. g 190. |>-i C. & P. 300; 9 Id. 44 ; i Russ. & R. 341, 499; i Leach Cr. Cas. 406. q-8 Pick. 354, 384. r-i Strange, 481 ; 8 C. & P. 747 ; Coxe, 439 : i HiU, 336; 4 Id. 437; 25 Me. 500. s-i Russ. & R. iSS 45 1 - t- Mood. Cr. Cas. 377 ; but see 4 Carr. & nailed over an open window ;i raising a latch, when the door is not otherwise fastened? picking open a lock with a false key ; putting back the lock of a door, or the fastening of a window, with an instrument * lowering a win- dow fastened only by a wedge or weight ; turning the key when the door is locked on the inside, or unloosening any other fastening which the owner has provided ; lifting a trap door; 1 are several instances of actual breaking. 11 Constructive breakings occur when the burglar gains an entry by fraud ; v by conspiracy ; or threats." The breaking of an inner door of the house will be sufficient to constitute a burglary. 1 And even the least entry, with the whole or any part of the body, hand, or foot, or with any instrument or weapon introduced for the purpose of committing a felony, will be sufficient to constitute the offence.' But the introduction of an instrument in the act of breaking the house will not be sufficient entry, unless it be introduced for the purpose of com- mitting a felony. 1 The whole physical frame need not pass within. 1 3. To be burglary, it must, in general, be committed in a mansion or dwelling-house, actually occupied as a dwelling ; but if it be left by the owner with an intention of return- ing, though no person resides in it in his ab- sence, it is still his mansion or residence.' But burglary may be committed in a church at common law, b or in a store, warehouse, barn, vessel, or railway coach or car. It must be in the dwelling, etc., of another person. 8 4. To be burglary, the offence must be com- mitted in the night ; for in daytime there can be no burglary. 4 For this purpose it is deemed night, when by the light of the sun a person cannot clearly discern the face or countenance of an- other. 8 This rule does not apply to moonlight.' The breaking and entering need not be done the same night,* but it is necessary the break- ing and entering should be in the night-time; for if the breaking be in daylight, and the entering be in the night, or vice versa, it will not be burglary. h CALENDAR is a record containing a list of prisoners, their names, the time when they were committed, and by whom, and the cause and time of their commitments. CAPAX DOLI. When one has sufficient mind and understanding to be made responsible for & P. 231. n-i Mass. 476. T-I Crawf. & D. Cr. Cas. my ; Hob. 62 ; 18 Ohio, 308 ; 9 Ired. 463. W-i Russ. Cr. (Graves Ed.) 792; 2 Id. 2 : 2 Chitty Cr. L. 1093. Hale PI. Cr. 553 ; i Strange, 481 , 8 C. & P. 747; i HiU & D. 63 ; 2 Bishop Cr. L. 84. y-Co. 3d lust 64 ; 4 Bl. Comm. 227; Bac. Abr. Burglary (B); Com. Dig. Justices (V, 4.) z-i Leach Cr. Cas. ( 4 th Ed.) 406; i Mood. Cr. Cas. 183; i GabbettCr. L. 174. x-i Bishop Cr. L. gg 81-83; * Gabbett Cr. L. 176. a-Fost 77; 3 Rawle, 207 ; 10 Cush. 478. b-3 Cox Cr. Cas. 581 ; Co, 3d Inst. 64. c-i Bishop Cr. L. 801 ; 2 East. PI. Cr. 502. d-4 Bl. Comm. 224 ; i C. & KL. 77 ; 16 Conn. 33 10 N. H. 105. e-i Hale PI. Cr. 550 ; Co. jjd Inst. 63; 1 C. & P. 297; 7 Dane Abr. 134. f-4 Bl. Comm. 224; 2 Ross. Cr. 32 ; 10 N. H. 105 ; 6 Miss. 20; see a Cush.. 582. B--I Russ. & R. 417. h-i Hale PI. Cr. $51 ; t Russ. Cr. 32 ; but see \V ilmot Burg. 9 ; COB. Dig. ?* tices (P a) ; a Chitty Cr. L. 1093. LAW. 493 hi actions, he is deemed capax doli (capable of committing crime.) CARNAL KNOWLEDGE is sexual connection ; ' this term is generally, if not exclusively, ap- plied to the act of the male. The term " car- nally knew," is a technical phrase essential in an indictment to charge the defendant with the crime of rape. No other words, nor circum- locution will answer, 1 their omission renders the indictment bad on demurrer, but is cured by a verdict.1 CARRYING AWAY is such a removal of, or taking into possession, personal property as is required in order to constitute the crime of larceny. Any removal, however slight, of the entire article, which is not attached either to the soil or to any other thing not removed, is sufficient, 11 thus, to snatch a diamond from a lady's ear, which is instantly dropped among the cutls of her hair ;' to remove sheets from a bed and carry them into an adjoining room ; m to take plate from a trunk, and lay it on the floor with intent to carry it away ; n to remove a package from one part of a wagon to another, with a view to steal it ; have respectively been holden to be felonies. But nothing less than such a severance will be sufficient.? CASTRATION is the act of gelding. When this act is maliciously performed upon a man, it is a mayhem, and punishable as such, although the sufferer consented to it ;i the punishment is, generally, fine and imprisonment. By the ancient law of England the crime was pun- ished by retaliation member for member. r -8 C. & P. 541; 2 Mood. Cr. Cas. 53; i Taylor Ev. 152. x-i Bennett & H. Leading Cr . Cas. 76-87. q-Bishop Cr. L. 147. I*-i2 committed, and renders it certain or probable that it was committed by the person named or described in the complaint. The general and specific requisites of a complaint are stated at length under the title ACCUSATION, above. See EXAMINATION, be- low. COMPOUNDING A FELONY is the act of the party immediately aggrieved, or of the officer in charge of the prosecution, who agrees with the thief or other felon that he will not prosecute him, on condition that he return to him the goods stolen, or who takes a reward not to prosecute. This is an offence punishable by fine or imprisonment, or both, and at common law rendered the person committing it an acces- sory.* A failure to prosecute for an assault with an intent to kill is not compounding a felony." The accepting of a promissory note, signed by a party guilty of a larceny, as a con- sideration for not prosecuting, is sufficient to constitute the offence. T The mere retaking by the owner of stolen goods is no offence, unless the offender is not to be prosecuted.* The compounding a felony is an indictable offence, and no action can be supported in anv contract of which such offence is the considera- tion in whole or in part. 1 COMPOUNDING OF MISDEMEANORS is also a perversion or defeating of public justice, and is in like manner an indictable offence at common law.* But the law will permit a compromise of any offence, though made the subject of a criminal prosecution, for which the injured party might recover damages in a civil action. But if the offence is of a public nature, no agreement can be valid that is founded on the consideration of stifling a prosecution for it.- T A receipt in full of all demands given on con- sideration of stifling a criminal prosecution is void. 1 CONFEDERACY is an agreement between two or more persons to do an unlawful act, or an act which, though not unlawful in itself, be- comes so by the confederacy. The technical term usually employed to signify this offence is conspiracy. CONFESSION. See title EVIDENCE, ante. CONSPIRACY is a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to ac- complish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.' The terms "criminal" and "unlawful" are used because it is manifest that many acts are unlawful which are not punishable by indict- ment or other public prosecution, and yet there S. & R. 220; 3 Cranch, 620; see i T. R. 748; 6 Mod. ii ; 4 Roe. 90; i Russ. Cr. 302 ; Roscoe Cr. Ev. 665. g-ii Pick. 436. t-Hawkins PI. Cr. 125. 11-20 Ala. (N. S.) 628. v-i6 Mass. 91. w-Hale PI. Cr. 546; i Chitty Cr. L. 4. X-i6 Mass. 91 ; 18 Pick. 440 ; 5 Vt. 42; 9 Id. 23; 5 N. H. 553; 2 South. 578; 13' Wend. 592 ; 6 Dana, 338. x-i8 Pick. 440. y-6 Q. B. 308; 9 Id. 371 ; 2 Bennett & H. Lead. Cr. Cas. 258, 262. z-n Vt. 252. a-2 Mass. 337, 538 ; 4 Met. (Mass.) in ; 4 Wend. 229; 15 N. H. 396; 5 Harr. & J. 317; 3 S. & R. 220; 12 Conn. 101; ii Clark & F. Ho. L. 155; 4 Mich. 414. LAW. 495 is no doubt that a combination by numbers to do them is an unlawful conspiracy, and pun- ishable by indictment. 6 Of this character was a conspiracy to cheat by false pretences without false tokens, when a cheat by false pretences only, by a single person, was not a punishable offence. 8 So a combination to destroy the reputation of an individual by verbal calumny, which is not indictable. 4 So, a conspiracy to in- duce and persuade a young female, by false pre- tensions, to leave the protection of her parents' house, with a view to facilitate her prostitution. 8 So, a conspiracy by false and fraudulent repre- sentations that a horse bought by one of the defendants from the prosecutor was unsound, to induce him to accept a less sum for the horse than the agreed price.' So, a conspiracy by traders to dispose of their goods in contem- plation of bankruptcy, with intent to defraud their creditors.' A combination to go into a theatre to hiss an actor ; h to indict for the purpose of extorting money; 1 to charge a person with being the father of a bastard child ;> to coerce journeymen to demand a higher rate of wages ; k to charge a person with poisoning another; 1 to effect the price of public stocks by false rumors ; m to prevent competition at an auction ;* have each been held indictable. In order to render the offence complete, it is not necessary that any act should be done in pursuance of the unlawful agreement entered into between the parties, or that any one should have been defrauded or injured by it; the con- spiracy is the gist of the crime. A wilful and corrupt conspiracy to cast away, burn, or otherwise destroy any ship or vessel, with intent to injure any underwriter thereon, or the goods on board thereof, or any lender of money on such vessel on bottomry or re- spondentia, is a felony, and the offender pun- ishable by fine, not exceeding ten thousand dollars, and by imprisonment and confinement at hard labor not exceeding ten years.? CONTAGIOUS DISORDERS are those diseases which are capable of being transmitted by mediate or immediate contact. Persons sick of such disorders may remain in their own houses,*! but are indictable for exposing them- selves in a public place, endangering the pub- lic.' Nuisances which produce such diseases may be abated. 1 CONVICTION is that legal proceeding of record l>-i2 Conn. 101 ; 15 N. H. 396; t Mich. 216; Dearsl. Cr. Cas. 337; IT Q. B. 245; 9 Penn. St. 24; 8 Rich. 72 ; i Dev. 357. c-u Q. B. 245. d-Per Shaw, C. J. ; 4 Met. (Mass.) 123. e-s W. & S. 461 ; 2 Denio Cr. Cas. 79 ; sec 5 Rand. 627 ; 6 Ala. (N. S.) 763 : 2 Yeates, 1 14. f-i Dearsl. Cr. Cas. 337. g-i Post. & F. Cr. Cas. 33. h-2 Campb. 369 ; 6 T. R. 628. i-4 B. & C. 329. j- 1 Salic. 174. fc-6 T. R. 619; 14 Wend. o. 1-F. Moore, 816. m-3 M. & S. 67. n-6 C. & P. 0-2 Mass. 337, 538; 6 Id. 74; 7 Cush. 514; 3 S. & R. 220; 8 Id. 420: 23 Penn. St. 355; 4 Wend. 259; i Halst. 293; 3 Zabr. 33; 3 Ala. 360; 5 Harr. & J. 317; but see 10 Vt. 353. p-U. S. Stat. 1825, c. 76, 23: 3 Story Laws U. S. 2006. q-2 Barb. 104. r-See 4 Maule & S. 73, 272. 8-15 Wend. 397 : see 4 M'Cord, 472 ; 2 Dougl. 332 ; i Greene, 348 ; 3 Hill (N. Y.) 479 ; 25 Penn. St. 503. t-i Caines, 72 ; 34 Me. 594; 16 Ark. 601. u-i which ascertains the guilt of the party and upon which the sentence or judgment is founded. Summary conviction is one that takes place before an authorized magistrate or court without the in- tervention of a jury. Conviction must precede judgment or sentence,* but is not necessarily followed by it." Generally, when several are charged in the same indictment, a part may be coBvicted and the others acquitted/ but not where a joint offence is charged.* A person cannot be convicted of part of an offence charged in an indictment, except by statute. 1 A conviction prevents a second prosecution for the same offence.' Summary convictions, being obtained by proceedings in derogation of the common law, must be obtained strictly in pur- suance of the provisions of statute; 1 and the record must show fully that all the proper steps have been taken,' and especially that the court had jurisdiction. 1 * Conviction of certain crimes when accom- panied by judgment disqualifies the person convicted as a witness, and renders him incapable of holding any office of trust or profit. COOL BLOOD is the condition of one who has the calm, deliberate, and undisturbed use of his reason. In cases of homicide it frequently becomes necessary to ascertain whether the act of the person killing was done in cool blood or not, in order to ascertain the degree of his guilt.* COOLING TIME is the time for passion to sub- side and the reason to interpose. Cooling time destroys the effect of provocation, leaving homi- cide murder the same as if no provocation had been given. 9 CORPUS DELICTI (the body of the offence ; the essence of the crime). It is a general rule not to convict unless the corpus delicti can be established, that is, until the fact that the crimp has been actually perpetrated has been first proved. Hence, on a charge of homicide the accused should not be convicted unless the death be first distinctly proved, either by direct evidence of the fact, or by inspection of the body.' Instances have occurred of a person being convicted of having killed another, whr^ after the supposed criminal has been put to death for the proposed offence, has made his appearance alive. Hence the wisdom of the rule; but it has been questioned whether, in extreme cases, it may not be competent to Denio Cr. Cas. 568 ; 14 Pick. 88 ; 17 Id. 296 ; 8 Wend. 204; 3 Park Cr. Cas. 567 ; Dudl. 188; 4111.76. y-z Den. Cr. Cas. 86; 4 Hawks. 356; 8 Blackf. 205; see 2 Va. Cas. 227; 3 Yerg. 428; 3 Humphr. 289. w-u Ohio, 386; 6 I red. 340. x -7 Mass. 250; 2 Pick. 506. 19 Id. 479; 7 Mo. 177; i Murph. 134; 13 Ark. 712. y- 1 McLean C. C. 429 ; 7 Conn. 414 ; 14 Ohio, 295 ;* 2 Yerg. 24 ; 28 Penn. St. 13 ; see 2 Gratt. 558. z-i Burr. 613. a-R. M Charlt. 235; i Coxe, 392; i Ashm 410; 2 Bay, 105 ; 19 Johns. 39, 41 ; 14 Mass. 224 : 10 Met. (Mats.) 222 : 3 Me. 51 ; 4 Zabr. 142. l-2 Tyl. 167; 4 Johns. 292 ; 14 Id. 371 : 7 Barb. 462 ; 3 Yeates, 475. c- 18 Miss. 192 ; see n Met. (Mass.) 302. d-Bacon Abr. Murder (B); Kel. 56; Sid. 177: Lev. 180. e-i Russ Cr. 525: Wharton L. of Horn. 179; 3 Gratt. 94. f-Best Pres.220i; I Starkie Ev. 575; see 6 C. & P. 176; 3 Hale PL Cr. 290. 49 6 LAW. prove the basis of the corpus delicti by pre- sumptive evidence.* The presumption arising from the possession of the fruits of crime recently after its com- mission, which in all cases is one of fact, rather than of law, is occasionally so strong as to render unnecessary any direct proof of what is called the corpus delicti. Thus, if a man were to go into a wine-cellar wherein much wine was stowed, quite sober, and shortly after- wards were to be found very drunk, staggering out of such cellar, this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof were given that any particular vat had been broached, and that any wine had actually been missed. h CORRUPTION is an act committed with an intent to give some advantage inconsistent with official duty and the rights of others. It in- cludes bribery, but is more comprehensive; because an act may be corruptly done, though the advantage to be derived from it be not offered by another. 1 CUCKING STOOL, called also a trebucket- tumbril, and castigatory, was an engine or machine for the punishment of scolds and unquiet women. Bakers and brewers were formerly also liable to the same punishment. Being fastened to the machine, they were im- mersed over head and ears in some pooU CULPRIT is a person guilty, or supposed to be guilty, of a public offence. DEAD BODY. To take up a dead body with- out lawful authority, even for the purpose of dissection, is a misdemeanor for which the of- fender might be indicted at common law, 1 This offence is, in general, punishable by statute. There can be no larceny of a dead body/ but may be of the clothes or shroud upon it. 1 Removing a dead body from its place of burial is an indictable offence. But when the master of a workhouse, having as such the lawful possession of the bodies of paupers who died therein, and who, therefore, was au- thorized by statute to permit the bodies of such paupers to undergo anatomical examination, unless to his knowledge the deceased person had expressed in his lifetime, in the manner therein mentioned, his desire to the contrary, " or unless the surviving husband or wife, or any known relative of the deceased person, should require the body to be interred without such examination," in order to prevent the relatives of the deceased paupers from making this requirement, and to lead them to believe that the bodies were buried without dissec- tion, showed the bodies to the relatives in coffins, and caused the appearance of a funeral to be gone through, and having by this fraud prevented the relatives from making the re- g-3 Bentham Jud. Ev. 234; Wills Circ. Ev.' 105 ; Best Pres. ? 204. h-Dearsl. Cr. Cas. 284 ; i Taylor Ev. g 122. i-Merlin Repert. j-Blount; Co. jd Inst. 219 ; 4 Bl. Comm. 168. X-i Russ. Cr. 414; i Dowl. & R. 13 ; Russ. & R. 366, n. b. ; 2 Chitty Cr. L. 35. y-z East. PI. Cr. 652 ; 12 Co. 306. z-13 Pick. 402 ; 12 Co. 113; Co. 3d Inst. no. -i Dearsl. & B. Cr. Cas. 590. l>-2 T. R. 734 ; 4 East. 460; t Russ. Cr. 415, 416, n. a. quirement, then sold the bodies for dissection, he was held not to be indictable at common law. s The preventing a dead body from being interred is also an indictable offence. b To inter a dead body found in a river would, it seems, render the offender liable to indict- ment for a misdemeanor, unless he first sent for a coroner. The leaving unburied the corpse of a person for whom the defendant is bound to provide Christian burial, as a wife or child, is an indictable misdemeanor, if he is shown to have been of ability to provide such burial . d See MEDICAL LAW; DEATH, below. DECLARATIONS. See title EVIDENCE, ante. DEFAULTING. A public officer or any other person acting in a fiduciary capacity becoming a defaulter is liable to indictment therefor. DELIBERATION. See AFORETHOUGHT, above ; PREMEDITATION, below. DESERTION is an unlawful abandonment of the public service in the army or navy ; the unlawful abandonment of a wife or child. DISCRETION is the ability to know and dis- tinguish between good and evil, between what is lawful and unlawful. The age at which children are said to have discretion is not very accurately ascertained. Under seven years it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence which is raised by an age so tender. 8 Between the ages of seven and fourteen, the infant is, prima facie, destitute of criminal design; but this presumption diminishes as the age increases, and even during this interval of youth may be repelled by positive evidence of vicious inten- tion ; for tenderness of years will not excuse a maturity in crime, the maxim being, " malice supplies the want of age." At fourteen chil- dren are said to have acquired legal discre- tion.' DISORDERLY HOUSE is a house the inmates of which behave so badly as to become a nuisance to the neighborhood. The keeper of such a house may be indicted for maintain- ing a public nuisance. 1 DISORDERLY PERSONS. See GENERAL STATUTES. DISSUADING a witness from giving evidence against a person indicted is an indictable offence at common law.* The mere attempt to stifle evidence is also criminal, although the person should not succeed, on the general principle that an incitement to commit a crime is in itself criminal. 11 DUELLING is the fighting of two persons, one against the other, at an appointed time and place, upon a precedent quarrel. It differs from an affray in this : that the latter occurs on C-i Keny. 250. d-i Denio Cr. Cas. 325. e-i Hale PI. Cr. 27, 28; 4 Bl. Comm. 23. f-i Hale PI. Cr. 25. x- Hardr. 344; Hawk. PI. Cr. B. i, Ch. 78, W i, 2 ; Bac. Abr. Inns, A ; i Russ. Cr. 298 ; i Wheel. Cr. Cas. 290 ; 1 S. & R. 342; 2 Id. 298; Bac. Abr. Nuisances : 4 Sharsw. Bl. Comm. 167, 168, n. g-Hawk. PI. Cr. B. i, Ch.2i,jSi5. b-i Russ. Cr. 44 ; 2 East. 5, 21; 6 Id. 464; 2 Strange, 904 ; 2 Leach Cr. Cas. 925. LAW. 497 a sudden quarrel, while the former is always the result of design. When one of the parties is killed, the survivor is guilty of murder. 1 Fighting a duel, even where there is no fatal result, is of itself a misdemeanor;J by statute in many States a felony. EAVESDROPPERS are such persons as wait under walls or windows, or the eaves of a bouse, to listen to the discourses within and thereupon to frame mischievous tales. The common law punishment for this offence is fine and a finding of sureties for good behavior.* , ELECTION. See PRACTICE. EMBEZZLEMENT is the fraudulently removing and secreting of personal property, with which the party has been intrusted, for the purpose of applying it to his own use. The principles of the common law not being found adequate to protect general owners against the fraudulent conversion of property by persons standing in certain fiduciary relations to those who were the subject of their peculations, certain statutes have been enacted creating new criminal of- fences, and annexing to them their proper punishment. A taking is requisite to consti- tute a larceny ; an embezzlement is in sub- stance and essentially a larceny, aggravated rather than palliated by the violation of a trust or contract, instead of being, like larceny, a trespass. The administration of the common law has been not a little embarrassed in dis- criminating the two offences. But they are so far distinct in their character that, under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction ; and in cases of embezzlement the proper mode is to allege sufficient matter in the indictment to apprize the defendant that the charge is for embezzlement. Although the stat- utes declare that a party shall be deemed to have committed the crime of simple larceny ; yet it is a larceny of a peculiar character, and must be set forth in its requisite and distinctive character. 1 When embezzlement of a part of the cargo takes place on board of a ship, either from the fault, fraud, connivance, or negligence of any of the crew, they are bound to contribute to the reparation of the loss in proportion to their wages. When the embezzlement is fixed on any individual, he is solely responsible ; when it is made by the crew, or some of the crew, but the particular offender is unknown, and, from circumstances of the case, strong pre- sumptions of guilt apply to the whole crew, all must contribute. The presumption of inno- cence is always in favor of the crew, and the guilt of the parties must be established beyond all reasonable doubt before they can be re- quired to contribute. 1 " i-i Russ. Cr. 443 ; i Yerg. 228. J-See 2 Com. Dig. 252 : Roscoe Cr. Ev. 610 ; 2 Chitty Cr. L. 728, 848 ; Co. 3d Inst. 157; 3 East. 581 ; 6 Id. 464; Hawk. PI. Cr. B. i, Ch. 31, 4 21 ; 3 Bulstr. 171 ; Const. 167 ; 2 Ala. 506 ; 2 Johns 457; see i Russ. Cr. 495; 2 Bishop Cr. L. \ 268; 3 Cow. 686. li-4 Bl. Comm. 167: Dane Abr. In- dex; i Russ. Cr. 302; 2 Overt. 108. 1-8 Met. (Mass.) 247; Q Id. 138; 9 Cush. 284. m-i Mas. C. C. 104 ; 4 Bos. & P. 347 ; 3 Johns. 17 : i Marshall Ins. 241 ; Dane Embezzlement of arms, munitions, and ha- biliments of war, property stored in the public storehouses, letters, precious metals, and coins from the mint are prohibited by acts of Con- gress under severe penalties. 1 EMBRACERY is an attempt to corrupt or in- fluence a jury, or in any way incline them to be more favorable to one side than to the other, by money, promises, threats, or persuasions, whether the juror on whom such attempt is made give any verdict or not, or whether the verdict be true or false." ENGROSSING is buying up such large quanti- ties of an article as to obtain a monopoly of it for the purpose of selling at an unreasonable price, especially provisions. Merely buying for the purpose of selling again is not neces- sarily engrossing.? ENTRY is the act of entering a dwelling- house, or other building, vessel, or enclosure in order to commit a crime. In cases of burglary, the least entry of the whole, or any part of the body, hand, or foot, or with any instrument, or weapon, introduced for the purpose of com- mitting a felony, is sufficient to complete the offence.i It is an entry where the person descends a chimney but is arrested before he can get low enough to enter any room ; it is an entry to open a window entirely, but not to push it up or down when partly opened ; put- ting a finger or pistol over a threshold is an entry, but not a centre-bit or crowbar, these instruments being intended for breaking, and not for committing a felony. It is not neces- sary in all cases to show an actual entry by all the prisoners, there may be a constructive entry as well as a constructive breaking. A., B., and C. come in the night, by consent, to break and enter the house of D., to commit a felony; A. only actually breaks and enters the house; B. stands near the door, but does not actually enter; C. stands at the lane's end, or orchard gate, or field gate, or the like, to watch that no help come to aid the owner, or to give notice to the others if help comes ; this is burglary in all, and all are principals though one only did actually enter. r See BURGLARY, above. ESCAPE is the departure of a prisoner from custody before he is discharged by due course of law. It is the voluntarily or negligently allowing any person lawfully in confinement to leave the place." The deliverance of a person who is lawfully imprisoned out of prison before such person is entitled to such deliverance by law.* Escape takes place without force ; prison breach, with violence ; rescue through the in- tervention of third parties. Actual escape takes place when the prisoner in fact gets out of the prison and unlawfully regains his liberty. Abr. Index; Weskett Ins. 194: 3 Kent Comm. 151; Hardin, 529 : Parsons' Marit. L. Index. x-See Revi- sion U. S. Laws 1873-4. ii-Hawk. PI. Cr. 259; Bac. Abr. Juries, M. 3 ; Co. Litt. 157 b, 369 a; Hob. 294 ; Dyer, 84 , pi. 19; Noy. 102 ; i Str. 643; n Mod. in, 118: Comb. 601 ; 5 Cow. 503. O-i East. 143. p-i4 East. 406 ; 15 Id. 511 ; see 4 Sharsw. Bl. Comm. ITO, n, for the law on this subject. q-Co. 3d. Inst. 64. r-i Hale PI. Cr. 555. S-2 Bishop Cr. L. 917. t-$ Mass. 310. LAW. Constructive escape tikes place when the pris- oner obtains more liberty than the law allows, although he still remains in confinement.* Negligent escape takes place when the prisoner goes at large, unlawfully, either because the building or prison in which he is confined is too weak to hold him, or because the keeper by carelessness lets him go out of prison. Vol- untary escape takes place when the prisoner has given to him voluntarily any liberty not author- ized by law." When a man is imprisoned in a proper place under the process of a court having jurisdiction in the case, he is lawfully imprisoned, notwith- standing the proceedings may be irregular; 7 but if the court has not jurisdiction the impris- onment is unlawful, whether the process be regular or otherwise. 1 Letting a prisoner, con- fined under final process, out of prison for any, even the shortest time, is an escape, although he afterwards return ; w and this may (as in case of imprisonment under the civil writ of capias ad satisfaciendum), although an officer may accompany him. x In criminal cases the pris- oner is indictable for a misdemeanor, whether the escape be negligent or voluntary ;? and the officer is also indictable. 1 If the offence of the prisoner was a felony, a voluntary escape is a felony on the part of the officer ; a if negligent, it is a misdemeanor only in any case. b Nothing but an act of God, or the enemies of the coun- try, will excuse an escape. It is the duty of the officer to rearrest after an escape/ 1 See GENERAL STATUTES. EXACTION is a wilful wrong done by an offi- cer, or by one who, under color of his office, takes more fee or pay for his services than the law allows. Between extortion and exaction there is this difference, that in the former case the officer extorts more than his due where something is due to him ; in the latter, he exacts what is not his due, when there is nothing due to him." EXAMINATION ; PRELIMINARY EXAMINA- TION. See title EVIDENCE, " Examination," ante. EXCUSABLE HOMICIDE is the killing of a human being when the party killing is not altogether free from blame, but the necessity which renders it excusable may be said to have been partly induced by his own act. f EXECUTION is the putting of a convict to death in pursuance of his sentence. " When- ever any person is condemned to suffer death by hanging, for any crime of which he shall have been convicted, the punishment is gener- ally inflicted within the walls or yard of the t-Bac. Abr. Escapes (B) ; Plowd. 17: 5 Mass. 310; 2 Mas. C.C. 486. u-s Mass. 310; 2 N. Chip. n. V-i Crawf. & D. Cr. Cas. 203. X-Rac. Abr. Escape in Civ. Cas. (A i) ; 5 Johns. 89 ; 13 Id. 378 ; i Cow. 300 ; 8 Id. 192 ; i Root, 288. w-2 W. Bl. 1048 ; i Rolle Abr. 806. x-3 Co. 44, a ; Plowd. 37 ; Hob. 202 ; i Bos. & P. 24 : 2 W. Bl. 1048. y-2 Hawk. PI. Cr. (Cumm. Ed.) 189; Cro. Car. 209; 7 Conn. 384; 16 Id. 47. z-2 Bishop Cr. L. g 924. a-2 Hawk. PI. Cr. Ch. 10, 25. fo-a Bishop Cr. L. 925. c-24 Wend. 381 ; 2 Murph. 386; i Brev. 146; see 5 Ired. 702 ; g W. & S. 455; 17 jail of the county in which he is convicted ; and the sheriff or coroner of the said county attends such execution, to which he invites the pres- ence of a. physician, the prosecuting attorney of the couniy, and twelve reputable citizens, se- lected by himself; and the sheriff, at the request of the criminal, permits such ministers of the gospel, not exceeding two, as he may name, and any of his immediate relatives, to attend and be present at the execution, together with such officers of the prison, and such of the sheriff's deputies as the sheriff or coroner, in his discretion, may think it expedient to have present." No person under age is permitted, on any account, to witness the execution. EXPOSURE OF PERSON is such an intentional exposure, in a public place, of the naked body as is calculated to shock the feelings of chastity or to corrupt the morals. This offence is indict- able on the ground that every public show and exhibition which outrages decency, shocks humanity, or is contrary to good morals, is pun- ishable at common law.s An indecent exposure, though in a place of public resort, if visible by only one person, is not indictable as a common nuisance. An omnibus is a public place suf- ficient to support an indictment. 11 EXTENUATION is that which renders a crime or wrong less heinous than it would appear or be without it; it is opposed to aggravation. In general, extenuating circumstances go in miti- gation of punishment in criminal cases, or of damages in those of a civil nature. EXTORTION is the unlawful taking by an officer, by color of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due. 1 To constitute extortion, there must be the receipt of money or something of value; the taking of a promissory note which is void, is not sufficient to make an extortion .J It is an extortion and oppression for an officer to take money for the performance of his duty, even though it be in the exercise of a discretionary power. k EXTRADITION ; see FUGITIVE FROM JUSTICE, below. FALSE PRETENCES are false representations and statements, made with a fraudulent design to obtain " money, goods, wares, and merchan- dise," with intent to cheat. 1 It is a representa- tion of some fact or circumstance, calculated to mislead, which is not true. m The pretence must relate to past events. Any representation or assurance in relation to a future transactio* may be a promise, or a covenant, or warranty, but cannot amount to a statutory false pretence.* It must be such as to impose upon a person of Wend. 543. d-6 Hill & Y. 344. e-Co. Litt. 368. f-i East. PI. Cr. 220. -2 BishopCr. L. ((318. ll-iDenioCr. Cas. 23 ; 2 C. & K. 933 ; 2 Cox Cr. Cas. 376 ; 3 Id. 187 ; Dearsl. Cr.Cas. 207 ; but see i Dev. & B. 2c8. i-4 Bl. Comm.i 4 i ; i Hawk. PI. Cr. Ch. 68, ? i ; i Russ. Cr.* 144. j-2 Mass. 523 ; 16 la. 93, 94 ; see Bac. Abr. ; Co. Litt. 168. It-2 Burr. 927 ; see 6 Cow. 661 ; i Caines, 130; I3S.& R. 426; 3Penn. 183 ; i Yeates, 71 ; i South. 324; i Pick. 171 ; 7 Id. 279 ; 4 Cox Cr. Ca*. 387. 1-a Bouv. lust. n. 2308. JUl-iy Pick. 184. n-iu Pick. 185; 3 T. R. 98. LAW. 499 ordinary strength of mind; 8 and this will doubt- less be sufficient.* But although it may be dif- ficult to restrain false pretences to such as an ordinarily prudent man may avoid, yet it is not every absurd or irrational pretence which will be sufficient.' It is not necessary that all the pre- tences should be false, if one of them, by itself, is sufficient to constitute the offence. 1 " And although other circumstances may have induced the credit, or the delivery of the property, yet it will be sufficient if the false pretences had such an influence that without them the credit would not have been given, or the property de- livered." The false pretences must have been used before the contract was completed.* There must be an intent to cheat or defraud some per- son. This may be inferred from the false rep- resentation. 1 The intent is all that is requisite ; it is not necessary that the party defrauded should sustain any loss. T This offence is modified in the different States by the wording of the statutes, which vary from each other slightly. The interpreta- tion of the words "by any false pretence" in such statutes is, that wherever a person fraudu- lently represents as an existing fact that which is not an existing fact, and so gets money, etc., he is guilty of the offence embraced in the statute." FAI.SIFY. The alteration or making false a record is punishable at common law and by sla'.ute, both State and federal. 1 FEAR is an emotion excited by an expecta- tion of evil or apprehension of danger. Anx- irty, dread, solicitude. Fear in a person robbed is one of the ingredients required to constitute a robbing from the person, and with- out this the felonious taking of property is a larceny. It is not necessary that the owner of the property should be in fear of his own per- son ; but fear of violence to the person of his child/ or to his property* is sufficient.' FELONIES are offences punishable by death, or imprisonment in the State prison or peni- tentiary. They are offences of great gravity. At the common law it occasioned a total for- feiture of lands or goods, or both, to which capital or other punishment was superadded, according to the degree of guilt. b It is clearly defined by the statutes of most States. See ARREST WITHOUT PROCESS, above. FINES are pecuniary punishments imposed by a lawful tribunal upon a person convicted of a criminal offence. The amount of the fine is generally left to the discretion of the court. 0-3 Hnws.62o ; 4 Pick. 178. p-n Wend. 557. <|-See 14111.348; T7Me. 211 ; 2 East. PI. Cr. 828 ; iDenioCr. ('as. 592 : Russ.&R. 127. r-i4\Vend. 547. s-n Wend. 5-7; 13 Id. 87: 14 'd. 547. t->3 Wend. 311; 14 Id. =.,6. ii-Russ. & R. Cr. Cas. 317 : i Stark. 396. x-i3 Wend. 87. v-ii Wend.iS; i C. & M. 516, 537: 4 Pick. 177. w-See i Denio Cr. Cas 559; 3 C. & K.gS. x- Laws U. S. 1790, April 30 ; i Story U. S. Stat. 86. y-2 East. PI. Cr. 718. z-Id. 731; 2 Russ. Cr. 72. a-2 Russ. 71-92. l>-4 Bl. Comm.94, 95 ; i Russ. Cr. 42; i Cliitty Pr. 14 ; Co. Litt. 301 ; i Hawk. PI. Cr. Ch. 37; 5 Wheat. 153, 159. x-Cnnst. U. S. Amendment Art. 8. '-4 Kl. Comm. 387. l-Cowel, Blount; 4 61. Comm. 1(8. e-Co. 3d. Inst. 196 ; j Russ. Cr. 169 ; 4 Bl. Comm. To prevent the abuse of power to fine, the Constitution of the United States directs that " excessive bail shall not be required, nor ex- cessive fines imposed, nor cruel and unusual punishment inflicted." 1 When, therefore, the offence committed, for which the penalty is by statute excessive or cruel, the court will pro- nounce a nominal sentence only, for the law will not suffer cruelty, but tempers its punish- ment with reason and justice. FLIGHT is the evading of the course of jus- tice by a man's voluntarily withdrawing,* and this, though the withdrawal be for an hour, a day, a week, etc. See ESCAPE, above ; FUGITIVE FROM JUS- TICE, below. FORESTALLING THE MARKET is the buying of victuals on their way to market before they reach it, with the intent to sell again at a higher price. 4 It is every device or practice by act, conspiracy, words, or news, to enhance the price of victuals or other provisions. These acts must be in themselves an unlawful, un- reasonable, unconscionable, and prohibited by statute, for a legitimate purchase in the ordi- nary course of trade, to sell again at reasonable and usual prices, is at all times lawful. FORFEITURE is a punishment annexed by law to some illegal act or negligence. It is a sum of money paid by way of penalty for a crime/ FORGERY is falsely making or materially al- tering, with intent to defraud, any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.* The fraudulent making and alteration of a writing to the prejudice of another man's right. h The intent must be to defraud another; but it is not requisite that any one should have been injured : it is sufficient that the in- strument forged might have proved prejudicial. 1 Most States have passed laws making certain acts to be forgery, and the national legislature has also enacted several on this subject, which are here referred to; but these statutes do not take away the character of the offence as a misdemeanor at common law, but only provide additional punishment in the cases particularly enumerated in the statutes.^ The making of a -whole -written instrument in the name of another with a fraudulent intent is a sufficient making ; but a fraudulent inser- tion, alteration, or erasure, even of a letter, in any material part of the instrument, whereby a new operation is given to it, will amount to a 158 ; Hawk. PI. Cr. B. i, Ch. 80, i. f-2i Ala. (N. S.)672; 10 Gratt. 700. }f-2 Bishop Crim. Law, g 432. I-4 Blackstone Comm. 247. Bishop 2 Crim. Law, J 432, has collected seven definitions of forgery, and justly remarks that the books abound in definitions. Coke says the term is " taken metaphorically from the smith, who beateth upon his anvil and forgeth what fashion and shape he will." Coke 3d Inst. 169. 1-3 Gill. & J. Md. 220 ; 4 Wash. C. C. 726. j-3 Cush. Mass. 150; 3 Gray, Mass. 441 ; Act of March 2, 1803, 2 Story U. S. Laws, 888 ; Act of March 3, 1813, 2 Story U. S. Laws, 1304 ; Act of March i, 1823, 3 Story U. S. Laws, 1889; Act of March 3, 1825, 3 Story U. S. Laws, 2003; Act of Oc- tober 12, 1837, 9 U. S. Stat. at Large, 696 5 oo LAW. forgery,* and this, although it be afterwards executed by a person ignorant of the deceit. 1 The fraudulent application of a true signature to a false instrument for which it was not in- tended, or vice versa, will also be a forgery. For example, it is forgery in an individual who is requested to draw a will for a sick person in a particular way, instead of doing so, to insert legacies of his own head, and then procure the Signature of such sick person to be affixed to '.the paper without revealing to him the lega- cies thus fraudulently inserted." A party who makes a copy of a receipt and adds to such copy material words not in the original, and then offers it in evidence on the ground that the original has been lost, may be prose- cuted for forgery. It is a sufficient making where, in the writing, the party assumes the name and character of a person in existence. P But the adoption of a false description and ad- dition where a false name is not assumed and there is no person answering the description, is not a forgery.' Making an instrument in a fictitious name, or the name of a non-existing person, is as much a forgery as making it in the name of an existing person,' and although a man may make the instrument in his own name, if he represent it as the instrument of another of the same name, when in fact there is no such person, it will be a forgery in the name of a non-existing person. 8 But the cor- rectness of this decision has been doubted. 1 Though, in general, a party cannot be guilty of forgery by a mere non-feasance, yet if in drawing a will he should fraudulently omit a legacy which he had been directed to insert, and by the omission of such bequest it would cause a material alteration in the limitation of a bequest to another, as, where the omission of a devise of an estate for life to one causes a devise of the same lands to another to pass a present estate which would otherwise have passed a remainder only, it would be a for- gery.' With regard to the thing forged, it may be observed that it has been holden to be forgery at common law fraudulently to falsify or falsely make records and other matters of a public nature, 1 a parish register," a letter in the name of a magistrate, or of the governor of a gaol directing the discharge of a prisoner. T With regard to private writings, forgery may be com- mitted of any writing which, if genuine, would operate as the foundation of another man's liability or the evidence of his right, w as, a letter of recommendation of a person as k-i Strange, 18 : i And. 101 ; 5 Esp. 100 ; 5 Strobh. 'So. C. 581. 1-2 East. PI. Cr. 855. Ul-n Grau. Va. 822 ; i Add. Penn. 44. n-Noy. 101 ; F. Moore, 759, 760 ; Coke, 3d Inst. 170 ; i Hawkins PL Cr. c. 70, s. 2 ; a Russell Crimes, 318 ; Bacon Abr. Forgery (A). 0-5 Esp. 100. p-a Russell Crimes, 327. q-i Kuss. & R. 405. r-2 East. PI. Cr. 957; 2 Russell Crimes, 328. 8- 2 Leach Cr. Cas. 775 ; 2 East. PI. Cr. 963. x-Roscoe Crim Ev. 384. t-F. Moore, 760; Noy, 101; i Haw- kins PI. Cr. c. 70, s. 6 ; 2 East. PI. Cr. 856; 2 Russell Crimes, 320. x-i Rolle Abr. 65, 68. n-i Hawkins PI. Cr. c. 70. v-6 Carr. & P. 129 ; Mood. Cr. Cas. 379. W-J GreenJeaf Ev. \ 103 ; Mass. 397 ; 12 Serf. & R. a man of property and pecuniary responsibility, 1 an acceptance of a conditional order for the delivery of goods/ a false testimonial to character, 1 a railway-pass,* a railroad-ticket, or fraudulently to testify or falsely to make a deed or will. 4 Forgery may be of a printed or engraved as well as of a written instrument.' A forgery must be of some document or writ- ing : therefore the printing an artist's name in the corner of a picture, in order falsely to pass it off as an original picture by that artist, is not a forgery/ FORNICATION is unlawful carnal knowledge by an unmarried person of another, whether the latter be married or unmarried. Fornication is distinguished from adultery from the fact that the guilty party is not married. Four cases of unlawful intercourse may arise : I. Where both parties are married. 2. Where the man only is married. 3. Where the woman only is mar- ried. 4. Where neither is married. In the first case such intercourse must be adultery; in the second case the crime is fornication only on the part of the woman, but adultery on the part of the man ; in the third case it is adultery in the woman and fornication (by statute in some States adultery) in the man ; in the last case it is fornication only in both parties. By the statutes of m?ny of the States fornication is an indictable offence by statute;* and where it is there may be a conviction for this offence on an indictment for adultery. 1 * FRAUD includes all deceitful practices in de- frauding or endeavoring to defraud another of his known right by means of some artful de- vice, contrary to the plain rules of common honesty. In considering fraud in its criminal aspect it iff difficult to determine whether facts in evidence constitute a fraud, or amount to a felony. In general, if the property obtained, whether by means of a false token or false pre- tence, be parted with, absolutely, by the owner it is a fraud; but if the possession only be parted with, and that possession be obtained by fraud, it will be felony. 1 Examples of gross frauds are: uttering a fictitious bank bill;J sell- ing unwholesome provisions ; k malpractice of a physician j 1 rendering false accounts, and other frauds, by persons in official situations ; m fabrication of news tending to the public in- jury;" cheats by means of false weights and measures ; and generally, the fraudulent ob- taining the property of another by any deceitful or illegal practice or token (short of felony) which affects or may affect the public,? as with Penn. 237 ; 8 Yerg. Tenn. 150. x-2 Greenleaf Ev. 365. y-3 Cush. Mass. 150. SE-Templ. & M. Cr. Cas. 207; i Den. Cr. Cas. 492; Dearsl. Cr. Cas. 285. a-2 Carr. & K. 604. -3 Gray, Mass. 441. d-i Hawkin* PI. Cr. b. i, c. 70, j> 10. e-3 Gray, Mass. 441 ; 9 Pick. Mass. 312. f-i Dearsl. & B. Cr. Cas. 460. g-6 Vt. 311 ; 2 Taylor, 105; 2 Gratt. 555. h-2 Dall. 124 ; 4 Ird. 231 ; 2 Bishop Cr. L. g 12. i-Bac. Abr. Frnuid; * Leach Cr. Cas. 1066 ; 2 East. PI. Cr. 673. j-2 Mass. 77. k-4 Bl. Comm. 162. l-i Ld. Raym. 213. ni-a East. 136 ; 5 Mod. 179 ; 2 Campb. 269 ; sChitty C. L. 666. it-Stark. Bk. 546; HaleSumn. 132. 0-2 East. PI. Cr. Ch. 18, J 3. p. 820. p-a East. PL Cr. Ch, 8, $ a, p. 818, LAW. the common cases of obtaining property under false pretences. FUGITIVES FROM JUSTICE are those who, hav- ing committed crime, flee from the jurisdiction within which the offence was committed to escape punishment. As one State cannot pur- sue those who violate its laws into the territories of another, and as it concerns all that those guilty of the more atrocious crimes should not go unpunished, the practice prevails among the more enlightened nations of mutually sur- rendering such fugitives to the justice of the injured State. This practice is founded on na- tional comity and convenience, or on express compact. The United States recognizes the obligation only when it is created by express agreement, and have contracted this obligation with several foreign States by treaty, and with one another by their federal constitution and laws. The various treaties with foreign powers ennmerate the crimes for which persons may be surrendered, and limit in other particulars their application. Before any person can be surrendered a demand for him must be made upon the executive by the executive power of the State whose laws have been violated. It is usual to make this demand before judicial proceedings are instituted for the arrest of the fugitive ; but this is not required by act of Congress.? The usual method of aation is for same police officer or other special agent, after obtaining the proper papers in his own country, to repair to the foreign country, carry the case through with the aid of his minister, receive the fugitive, and conduct him back to the country having jurisdiction of the crime.i The expense of the apprehension must be borne and fi defrayed by the party making the requisitio'n. Under the United States Constitution and i'aws, etc^ "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, and to be removed to the State having jurisdiction of the crime." r On demand of the executive au- thority of a State, and production of a copy of the indictment found, or an affidavit made before a magistrate charging the person de- manded with treason, felony, or other crime certified as authentic by the governor or chief magistrate of the State from whence the person so charged fled, that the executive authority of the State or Territory to which such person shall have fled shall cause the person charged to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and cause the fugitive to be delivered to such agent O-8 Opinions Aty's Gen. 521. p-Id. 240. q-Id. 521. r-Constitution U. S. Art. 4, (>2. s-Laws U. S. 1793, February 12, Vol. i, p. 302. t-6 Penn. L. Jur. 412 ; i Kent Comm. (9 Ed.) 42, n; 6 Am. Jour. 226; 9 Wend. i2; i An. L. Jour. (N. S.) 271; 13 Ga. 97; 3 Zabr. jii ; Hurd Habeas Corp. 597. u-6 Penn. L. Jour. when he shall appear; but if such agent do not appear within six minutes, the prisoner shall be discharged.' The treason, felony, or other crime, extends to and embraces all acts which by the laws of where they were committed are made criminal.' The accusation must be in the form of an affi- davit, or indictment found and duly authenti- cated. If by affidavit, it should be sufficiently full to justify arrest and commitment for hear- ing." The accused must have fled from the ' State in which the crime was committed; and' of this the executive authority of the State upon' which the demand is made should be reason- ably satisfied. This is sometimes done by affi- davit. In the absence of direct evidence on the question of flight, if it appear from the in- dictment or affidavit produced that the crime charged is atrocious in its nature, and recently committed, and the prosecution promptly insti- tuted, the unexplained presence of the accused in another State immediately after the commis- sion of the crime may be regarded as prima facie evidence of flight, sufficient at least to warrant an order of arrest. The order of sur- render is not required, by act of Congress, to be made at the same time with the order of arrest, and time, therefore, can be taken in doubtful cases, after the accused is arrested, to hear proofs to establish or rebut such prima facie evidence.* The surrender of the accused must be made to an agent of the executive authority of the demanding State, duly appointed to receive the fugitive. The proceedings of the executive authority are subject to be reviewed on habeas corpus by the judicial power, and if found void the prisoner may be discharged.' Any person setting at liberty or rescuing a fugitive from an agent while transporting a fu- gitive to the State or Territory from which he . fled is liable to a fine of five hundred dollars and imprisonment not exceeding one year. x GAME LAWS. See GENERAL STATUTES. GAMING is an agreement between two or more persons to play by certain rules at cards, dice, or other contrivance that the result shall determine the owner of the amount staked, contributed, or wagered upon the game. In general, at common law, all games are lawful, unless some fraud has been practised, or such games are contrary to public policy. Each of the parties to the contract must have a right to the money or thing played for. He must have given his full and free consent, and not have been entrapped by fraud. There must be equality in the play. The play must be con- ducted fairly. But even when all these rules have been observed, the courts will not coun- tenance gaming by giving too easy a remedy for the recovery of money won at play.' But 412 ; 3 McLean C. C. 121 ; i Sandf. 701 ; 3 Zabr. 311 ; Hurd Habeas Corp. 605. v-6 Am. Jur. 226 ; 7 Boston L. Rep. 386. w-3 McLean C. C. 121 ; 3 Zabr. 311; 9 Texas, 635 ; 4 Harr. 575 ; 2 Mo. 26 ; Hurd Habeas Corp. 615. x-Laws V. S. I 793, February 12, Vol. i, 302. y- Bac. Abr. 502 LAW. where fraud has been practised, as in all other cases, the contract is void ; and in some cases when the party has been guilty of cheating, by playing with false dice, cards, and the like, he may be indicted at common law, and fined and imprisoned, according to the heinousness of the offence. 1 For the laws forbidding gaming, see the GENERAL STATUTES. GAMING HOUSES are houses kept for the purpose of permitting persons to gamble for money or other valuable things. They are nuisances in the eye of the law, being detri- mental to the public, as they promote cheating and other corrupt practices.* GAOL. See JAIL; PRISON, below. GOOD BEHAVIOR. Surety for good behavior may be demanded from any person who is justly suspected, upon sufficient grounds, of intending to commit a crime or misdemeanor. Surety for good behavior is somewhat similar to surety of the peace, but the recognizance is more easily forfeited, and it ought to be de- manded with greater caution.* GOODS AND CHATTELS. Choses in action, as bank notes, mortgage deeds, and money, do not fall within the technical definition of "goods and chattels;" and if described in an indictment as goods and chattels, these words may be rejected as surplusage. GRAND LARCENY. Simple larceny is divided into grand larceny and petit larceny. Grand larceny is made a felony in most States, while petit larceny is made a misdemeanor the for- mer embraces larcenies from a prescribed minimum (e. g. five dollars in value) to any amount in value, however great ; the latter is any amount in value less than the prescribed maximum (e. g. five dollars in value). GRAVE. The violation of the grave, by taking up a dead body, or stealing the coffin or grave clothes, is a misdemeanor at common law. 4 Penalties for violation of the grave, desecration of cemeteries, etc., are exacted in most of the States. See DEAD BODY, above. GUILT is criminality ; offence ; liability to punishment; it is opposed to innocence. In general, every one is presumed innocent until guilt has been proved ; but in some cases the presumption of guilt overthrows that of inno- cence ; as, for example, where a party destroys evidence to which the opposite party is entitled. The spoliation of papers material to show the neutral character of a vessel furnishes strong presumption against the neutrality of the ship. 6 HARD LABOR is, in general, a part of the sentence of convicts in States where the peni- tentiary system has been adopted. This labor is such as is ordinarily performed voluntarily by laborers and mechanics, and is generally z-t Rust. Cr. 406. a-i Russ. Cr. 299 ; Roscoe Crim. Ev. 663; 3 Denio, 101. b-i Binn. 98, n ; 2 Yeates, 437 ; 14 Vin. Abr. 21 ; Dane Abr. Index. As to what is a breach of good behavior, see 2 Martin (N. S.) 683 ; Hawk. PI. Cr. B. x, Ch. 61, ? 6 ; I Chitty Pr. 676. C-4 Gray, 416 ; 3 Cox Cr. Ca*. 460 ; i Denio Cr. Cas. 460 ; i Dearls. & B. Cr. Cas. 426; a Zabr. 207; i Leach Cr. of the same character. It mny be any of the common industries, such as the working of wood, metals, weaving, quarrying, and the like employments. HANGING. See EXECUTION, above. HEARING. See title, EVIDENCE; EXAMI- NATION, ante. HIGHWAY ROBBERY. See ROBBERY, below. HOMICIDE is the killing of a human being," by human agency/ Excusable homicide takes place under such circumstances of accident or necessity that the party cannot. strictly be said to have commitled the act wilfully and intentionally, and whereby he is relieved from the penalty annexed to the commission of a felonious homicide. Felonious homicide is that committed wilfully under such circum- stances as to render it punishable. Justifiable homicide is that committed with full intent, but under such circumstances as to render the act one proper to be performed. The distinction be- tween justifiable and excusable homicide is that in the former the killing takes place without any manner of fault on the part of the slayer; in the latter there is some slight fault; between justifi- able or excusable and felonious homicide there is a great and important distinction. For example : " If a person driving a carriage happen to kill another, if he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it would be murder; if he might have seen ihe danger, but did not look before him, it will be manslaughter ; but if the accident hap- pened in such a manner that no want of due care could be imputed to the driver, it will be accidental death and excusable homicide."* To constitute the offence of homicide there must be a person in actual existence ; h but the destruction of human life at any period after birth is homicide, however near it may be to extinction from any other cause. 1 The person killed, to constitute the homicide felonious, must have been entitled to his existence. Thus, a soldier of the enemy in time of v/ar has no right to life, but may be killed. A criminal sentenced to death has no right to life ; but no person can take life but the authorized officer, and in the manner prescribed by law. See MURDER ; MANSLAUGHTER ; SELF- DEFENCE. HOUSE OF CORRECTION is an asylum or prison for incorrigibles or those who have com- mitted minor crimes. HOUSE OF ILL-FAME is a house resorted to for the purpose of prostitution and lewdness.i Keeping a house of ill-fame is an offence at common law. k So, the letting of a house to a woman of ill-fame, knowing her to be such, with the intent that it shall be let for purposes of prostitution, is an indictable offence at com- mon law. 1 If a lodger lets her room for the Cas. 241. d-i Russ. Cr. 414. e-2 Wheat. 227. x-See 4Bl.Comm.i77. f-i Hawkins PI. Cr. Ch.8,#2: 5 Cush. 303. g-i East. PI. Cr. 260 ; see 4 Sharsw. Bl. Comra. 176-204; Roscoe Cr. Ev. 580. h-6C. & P. 349- 7 Id. 814, 850 ; 9 Id. 25. 1-2 C. & R. 784 ; 2 Bisl.op f >. L. ? 582. j-5 Ired. 603. Is-3 Pick. 26; 17 Id. 80 ; i Russ'. Or- (Greaves Ed.) 322. 1-3 Pick. 26; n Curt. 600. LAW. purpose of indiscriminate prostitution, she is guilty of keeping a house of ill-fame as much as if she were the proprietor of the whole house. m A married woman who lives apart from her husband, may be indicted alone, and punished for keeping a house of ill-fame. 11 The house need not be kept for lucre to constitute the offence.* HOUSE OF REFUGE is an asylum or prison for juvenile delinquents. v HOUSEBREAKING is the breaking and enter- ing the dwelling-house of another by night or by day, with intent to commit some felony within the same, whether such felonious intent is executed or not. Housebreaking by night is burglary. This crime is of a local character and the evidence respecting the place must correspond with the allegation in the indict- ment. IMPEACHMENT is a written accusation by the State or federal house of representatives to the senate thereof against a State or federal officer. The cause for, mode of, and trial of impeach- ments is provided for by both State and federal constitutions. INCEST is cohabitation or sexual commerce between persons related within the degrees wherein marriage is prohibited by the law.P It is punished by fine or imprisonment, or both, in the respective States. INDECENCY is that which is unfit to be seen, offensive to modesty and delicacy .1 The ex- posure by a man of his naked person on a bal- cony to public view, or bathing in public/ or the exhibition of bawdy pictures, 8 are examples of indecency. Such indecencies are punish- able by indictment. INDICTMENT is a written accusation or for- mal charge of a crime or misdemeanor pre- ferred to a court by a lawfully constituted grand jury under oath.' The essential re- quisites of a valid indictment are: I. That the indictment be presented to some court having jurisdiction of the offence stated there- in. 2. That it appear to have been found by the grand jury of the proper county or district. 3. That it be found a true bill, and signed by the foreman of the grand jury, and when re- quired by law the prosecuting attorney. 4. That it be framed with sufficient certainty, con- taining a description of the crime or mis- demeanor charged, and of facts constituting the offence. Where the offence is created by statute, a description in the terms of the statute m-2 Ld. Raym. 1197. n-i Met. (Mass.) 151 ; see n Mo. 27; 10 Mod. 63. 0-21 N. H. 345 ; 2 Gray, 357 ; 18 Vt. 70. p-Bishop Marriage & Div. 214,221. <|-See2S. &R.9I. r-z Campb. 89 ; 3 Day, 103 ; i Dev. & B. 208 ; 18 Vt. 574 ; 5 Barb. 203. s-2 Chitty Cr. L. 42 ; 2 S. & R. 91. t-4 Bl. Comm. 299 ; Co. Litt. 126 ; i Chitty Cr. L. 168. n-6 T. R. 162. v-Hawk. PI. Cr. Bk. 2, Ch. 2 S 2 35- W-i Ark. 171 ; 9 Yerg. 357 ; 6 Met. (Mass.) 225. x-Hob. 134 ; Ambl. 307 ; Russ. & R. 196, 154 ; t Leach Cr. Cas. (4th Ed.) 280, 284 ; 2 Id. 10, 19; 7 C. & R. 428; 8 Id. 136; i Den. Cr. Cas. 387; Paine C. C. 16 r 2 McLean C. C. 14 ; 2 Ind. 207 ; 30 Me. 132 ; i Rice, 145; 4 Marring. 315; 19 Vt. 564; 3 Dev. 114; i Bishop Cr. L. 221, it sey. y-Caldw. 397 ; j Str. 644 ; Id. 1074; 9 Co. 8x, a. ; i El. & Bl. 435 ; 2 C. & P. is sufficient. 5. It must be in the English language. But any document in a foreign language, as a libel, may be set out in the original tongue, and then the translation show- ing its application. 11 The formal requisites of an indictment are: I. The name, which, at common law, should always be laid in the county where the offence has been committed, although the charge be in its nature transitory, as a battery.* The venue is staled in the margin (i.e., at the beginning), thus: State of , county of , ss., or city and county of , to wit. See title AFFIDAVITS, ante.' 2. The presentment, which must be in the present tense, and is usually expressed as fol- lows: "The grand jury of the State (or com- monwealth) of .inquiring in and for the (city and) county of , aforesaid, upon their oaths and affirmations, present." 3. The name of the defendant. 4. The time when the offence was committed. 5. The place where the of- fence was committed. 6. The offence must be sufficiently described. If the offence be statutory, a description in the terms of the statute is sufficient. See ACCUSATION, above. INDUCEMENT. See CONFESSIONS. INFORMATION is in the nature of an indict- ment, with this exception : it is preferred by the attorney of the State instead of by a grand jury. The prosecuting witness or witnesses make oath in writing that a public offence has been committed, naming the accused, and stating the time and place of its commission. Upon this affidavit the prosecuting attorney bases his information returning both affidavit and in- formation to court. See ACCUSATION, " Indictment," above. INTENTION is aim, design, determination, or purpose. To render an act criminal, a wrongful intent must exist.* And this must be combined with a wrongful act ; as mere intent is not punishable/ but a wrongful intent may render an act otherwise innocent criminal. 1 Generally, where any wrongful act is com- mitted, the law will infer conclusively that it was intentionally committed,* and also that the natural, necessary, and even probable conse- quences were intended. 1 * Where by the common law or by the provi- sion of a statute, a particular intention is essen- tial to an offence, or a criminal act is attempted but not accomplished, and the evil intent only can be punished, it is necessary to allege the 414; 7 Id. 156; 2 Mass. 138; 28. Mon. 417; x Dall. 33; 9 Ark. 42; 10 Vt. 353; i Dev. & B. 121; Gilp. Dist. Ct. 306; 5 Cranch, 311 ; but see Jebb. Cr. Cas. 48, .; Russ. & R. 308 ; i El. & Bl. 435 ; i Lew. Cr. Cas. 42 ; i Russ. Cr. (Greaves Ed. 48. *-i Carr. & K . 600; Carr. & M. 236; 2 Allen, 181 ; i East. PI. Cr. 255; 1 Bishop Cr. L. 229, 253. -2 Gratt. 594 ; 4 Ga. 14 : 2 Allen, 179. b-i Greenl. Ev. J 18 : 3 Id. 13 ; 3 Dowl. & R. 464; 2 Lew. Cr. Cas. 237; 3 Mnule & S. u, 15 ; 5 C. & P. 538; 8 Id. 143, 148; 9 Id. 258, 499; 3 Wash. C. C. 515: 13 Wend. 87; 3 Pick. 304; 15 Id. 337: f Met. (Mass.) 410; 2 Gratt. 594 ; i Bay, 245 ; 9 Humph. 66 ; i Overt, 305 ; see also 8 C. & P. 143, 274, 582 : 2 C 6 K. 356, 777 ; Baldw. C. C. 370 ; 4 N. H. 239 ; 8 Id. 240; i I red. 76; 2 Id. 153; 5 Id. 350; 18 Johns. 115; tf Blackf. 299 ; 3 Hairing. 571 ; 13 Ala. N. S. 413. 5-2 East. PI. Cr. 553; 4 Wash. C. C. 700. q-i C. & K. 518; 2 Denio Cr. Cas. 449. r-io Wend. 165 ; 14 Mass. 217 ; 13 Ala. 115 ; 4 Hairing. 570; 6 Hill N. Y. 144 ; 9 C. & P. 44. 8-8 C. & P. 201 ; 9 Id. 365 ; i Denio Cr. Cas. 381 ; Overt. 68 ; 9 Yerg. 198 ; 20 Ala. (N. S.) 428 ; i Rich 30; 2 Nott. & M'Cord, 174 ; Coxe, 439. t-is S. & R. 93 ; 9 C. & P. 741 : 4 Taunt. 258; 7 Cox Cr. Cas. 289. U-24 Eng. L. & Eq. 562 ; 4 C. & P. 545 ; 5 Id. 533 : J Pick. 375; 20 Ala. (N. S.) 428; 17 N. V. 14. v-tf Moor. 130; i Denio, 120; n Q. B. 929; i Demp Cr- Cat. 584. w-9 C. & P. 39 ; Ky. & M . 349. LAW. 505 tried in the county where arrested with the goods; as, by construction of law, there is a fresh taking in every county in which the thief carries the stolen property. T There must be an actual taking away of the article," but a very slight removal, if it amounts to a taking into possession, is sufficient. 1 The property must be personal,' and it must be of some value though but slight. 1 Things annexed to the freehold, as growing grain, grass, trees, and the like, or lead, or fixtures attached to a house, are not the subject of larceny until severed.* Nor can larceny be committed of things which are not the subject of property, such as the dead body of a human being. Animals of a wild nature unreclaimed, cannot be the subject of larceny, for there is no prop- erty in them absolute or qualified, b it is other- wise if they are reclaimed or confined. And animals may be of so base a nature as not to be the subject of larceny, though tame and salable, as tame bears, cats, dogs, and mon- keys^ LEAGUE. See CONSPIRACY, above. LEVYING WAR. See TREASON, below. LIMITATION is a time within which an ac- cusation may be made, or an indictment found or an information made against a person for the commission of a crime or misdemeanor. Limi- tation never expires during the life of the of- fender for treason or murder. Limitation in cases of felony varies from ten to two years ; for misdemeanors or the lesser offences it is generally from two years to sixty days. LYING IN WAIT is ambuscade for the pur- j)ose of murder. Lying in wait is evidence of premeditation, malice, intention, deliberation. MAIM; see MAYHEM, below. MAINTENANCE is an officious interference in n suit in which the offender has no interest, to assist one of the parlies against the other, with money or advice, to prosecute or defend the action, without any authority or interest, at law. 6 It is the intermeddling of a stranger in a suit for the purpose of stirring up strife and continuing the litigation.' There are many acts in the nature of maintenance which become justifiable from the circumstances under which they are performed. They may be justified : I. Because the party has an interest in the matter in vari- ance; as, when he has a bare contingency in the lands in question, which possibly may never develop into being.* 2. Because the party is of kindred or affinity, as father, son ; heir ap- parent, husband, wife, etc. h 3. Because the relation of landlord and tenant, master or ser- vant, etc., subsists between the party to the suit and the person who assists him. 4. Because T-7 Met. (Mass.) 175. w-i Leach Cr. Cas. (4 Ed.) 436, n. 320; s^Greenl. Ev. 154: 7 C. & P. 552 ; 8 Id. eqi ; 8 Ala. (N. S.) 328; 12 Ired. 157 ; 9 Yerg. 98. x-2 East. PI. Cr. 556, 617; i C. & 1C. 245 ; i Dearsl. Cr. Cas. 421. y-n Ired. 70; 3 Hill, 395 ; i Mod. 89; 2 Rolle, 89; 7 Taunt. 188. z-4 Rich. 356; 3 Harring. 563 ; 7 Met. (Mass.) 475. a-i Hale, 510. fo-2 B. & C. OH: 4 D. &S. 518. c-i Ha!, 511. d-R.&R. 250;! Hale, 512. e-i Russ. Cr. 176. f-2 Parsons' Contr. 66. ff-Bac. Abr. Maintenance. 11-3 Cow. 633. i-i the money is given out of charity.' 5. Because the person assisting the party to the suit is an attorney or counsellor; the assistance to be rendered must, however, be strictly professional, for a lawyer is no more justified in giving his client money than another man.J See title CON- TRACTS, " Maintenance," ante. MALPRACTICE. See MEDICAL LAW, below. MALICE is the' intentional doing of an un- lawful or felonious act without just cause or excuse.* Express malice exists when the party evinces an intention to commit the crime. Im- plied malice is that inferred by law from the facts proved. 1 Malice is implied in every case of intentional homicide; and the fact of kill- ing being first proved, all the circumstances of accident, necessity, or informality are to be satisfactorily established by the party charged, unless they arise out of the evidence produced against him to prove the homicide, and the cir- cumstances attending it. If there be in fact circumstances of justification, excuse, or pallia- tion, such proof will naturally indicate them. But where the fact of killing is proved by satis- factory evidence, and there are no circum- stances disclosed tending to show justification or excuse, there is nothing to rebut the natural presumption of malice. It is material to the just understanding of this rule, that it only ap- plies where the killing, and nothing further, is shown. For if the circumstances disclosed tend to extenuate the act, the prisoner has the full benefit of such facts. m It is a general rule that when a man commits an act unaccom- panied by any circumstances justifying its com- mission, the law presumes that he has acted advisedly, and with an intent to produce the consequences which have ensued. And there- fore the intent to kill is conclusively inferred from the deliberate violent use of a deadly weapon. MALICIOUS INJURIES are those committed wilfully and wantonly without cause. MALICIOUS MISCHIEF is unlawful, wilful, wanton, or reckless destruction of property. In order to a conviction of the offence of malicious mischief, the jury must be satisfied that the injury was done either out of a spirit of wanton cruelty, or wicked revenge.? MALICIOUS TRESPASS is a wilful, malicious, or mischievous injury of private or public prop- erty, real or personal.' MANSLAUGHTER is the unlawful killing of one human being by another, without malice or intention. 1 " The distinction between man- slaughter and murder is, that in the former, though the act which occasions the death be Bail. 401. J-i Russ. Cr. 179; Bac. Abr. Maintenance ; Broke. Abr. Maintenance, lt-4 B. & C. ^25; 9 Met. Mass. 104. 1-n Humphr. 172; 6 Blackf. 299; i East. PL Cr. 371. m-9 Met. 93 ; 5 Cnsh. 295 ; 3 Gray, 46:- ll-o Met. (Mass.) 103; 5 Cush. 305. O-Chitty Pr. 13^:. p-Jac. L. Diet. Mischief, Malicious; Alison. Sc. L. 448 ; 3 Cush. 558 ; 2 Met. (Mass.) 21 ; 3 Dev. & B. 130 ; Slrecf. 364; 8 Leigh. 719; 3 Me. 177. -i3 Ind. 375 7 Blackf. 157 ; 5 Id. 314: 3 Id. 346; 2 Id. 371 : 8 Ind. 499 ; 14 Id. 590; 21 Id. 206; 8 Id. 499 : 7 Id. 270; i Id. 511 ; z Id. 377. r-4 Bl. Comra. igo; i Hale PI, Cr. 466, LAW. unlawful, or likely to be attended with bodily mischief, yet the malice, express or implied, which is the very essence of murder, is pre- sumed to be wanting in manslaughter. In manslaughter there can be no accessories be- fore the fact, because there has been no time for premeditation. 1 Involuntary manslaughter happens without intention to injure. Voluntary manslaughter happens from intention to pro- duce the injury. Homicide may become man- slaughter in consequence of provocation ; by mutual combat; resistance to public officers, etc.; killing in the prosecution of an unlawful or wanton act ; or killing in the prosecution of a. lawful act improperly performed, or per- formed without lawful authority. The provo- cation which reduces the killing from murder to manslaughter is an answer to the presumption of malice, which the law raises in every case of homicide ; it is, therefore, no answer where ex- press malice is proved.* And to be available the provocation must have been reasonable and recent; for no words or slight provocation will be sufficient, and if the party has had time to cool, malice will be inferred. In cases of mutual combat it is manslaughter only when one of the parties is killed. T When death en- sues from duelling the rule is different; and such killing is murder. The killing of an offi- cer by resistance to him while acting under lawful authority is murder; but if the officer be acting under a void or illegal authority, or out of his jurisdiction, the killing is man- slaughter, or excusable homicide, according to the circumstances of the case. w When death ensues from the performance of a lawful act, it may in consequence of the negligence of the offender amount to manslaughter. For instance, if the death has been occasioned by negligent driving.* Again, when death ensues from the gross negligence of a medi- cal or surgical practitioner, it is manslaughter. It is no crime for any person to administer medicine, but it is a crime to administer it so rashly and carelessly, or with such criminal inattention, as to produce death; and in this respect there is no difference between the most regular practitioner and the greatest quack.' MAN-STEALING. See KIDNAPPING,* above. MAYHEM. Simple mayhem consists in vio- lently and unlawfully depriving another of the use of any bodily member, or in unlawfully and wilfully disabling the tongue or eye; slit- ting or biting the nose, ear, or lip of another. Malicious mayhem consists in the purposely, and with premeditation, committing any of the above acts. See GENERAL STATUTES. -i Hale PI. Cr. 218; Foster, mo: 5 Cush. 304. t-x Russ. Cr. 440; Foster, 132; i East. PI. Cr. 239. n-3 Wash. C. C. 515: 4 Penn. St. 264; 2 N. Y. 193; 25 Miss. 383 ; 3 Gratt. 594 ; 6 Blackf. 299 ; 8 Ired. 344; 18 Ala. (N. S.) 720 ; 15 Ga. 223 ; 10 Humphr. 141 ; i C. & K. 556; sC. & P. 324; 6 How. St. Tr. 760; 17 Id. 57; i Leach Cr. Cas. (4 Ed.) 151. v-J. Kel. 58, 119; 4 Dev. & B. lot ; i Jones, 280 ; 2 C. & K. 814. w-t Mood. Cr. Cas. 80, 132 ; i Hale PI. Cr. 458; i East. PI. Cr. 314; a Stark. N. P. Cas. ao$. X-i East. PI. Cr. At common law mayhem was an injury to any part of a man's body which might render him, in fighting, less able to defend himself, or annoy his adversary.* So, the cutting off the ear or nose was not held mayhem at common law. b MENACE. See ABUSE; AFFRONT; ASSAULT, above. MERGER is the absorption of a less offence in a greater. When a man commits a great crime which includes a lesser the latter ismerged in the former. Murder when committed by blows necessarily includes the assault and bat- tery; battery necessarily includes an assault; a burglary when accompanied with the felo- nious taking of personal property necessarily includes such larceny. In all these and simi- lar cases the lesser crime is merged in or swal- lowed up by the greater. But when one of- fence is of the same character with the other, there can be no merger, as in case of a con- spiracy to commit a misdemeanor, and the subsequent commission of the misdemeanor in pursuance of the conspiracy; the two crimes being of equal degree, there can be no legal merger. Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute is not merged in another. A defendant is liable in a civil action to the party injured either after his conviction," 1 or acquittal. 8 MISDEMEANORS are offences punishable by fine, or imprisonment in the common jail, or both. They are all offences inferior to felo- nies. MURDER is the act of unlawfully killing a human being with premeditated malice, by a person of sound mind or in possession of his reason.' See GENERAL STATUTES. MUTILATION. See MAYHEM, above. MUTINY is the unlawful insurrection 01 revolt of soldiers or seamen against the author- ity of their commanders; open resistance of officers or opposition to their authority. A mutiny is properly the act of numbers ; but by statutes and ordinances for governing the army and navy, the acts which constitute mutiny are multiplied and defined ; and acts of indi- viduals, amounting to a resistance of the au- thority or lawful commands of officers, are de- clared mutiny. Officers beginning, causing, exciting, or joining mutiny are guilty of the offence. Mutiny is punishable in the navy by fine or imprisonment, or both.* And in the army by death or such other punishment as a court martial shall direct. 11 NECESSITY is that which must not and cannot 263 ; i C. & P. 320; 6 Id. 129. 521 : 3 C. & K. 202 ; 4 C. & P. . . Cr. Cas. 46-48. W.-4 Bl. Comm. 219. -i How. Ch. y-i Fost. & F. 519, 440 , i Bennett & H . L 21 ; 3 C. & K. 202 ; 4 C >. Cas. 46-48. J5-4 Bl. 44. i ; C. & M. 209. b-4 Bl. Comm. 205. -4 Wend 265. 1- Latch, 144; Noy,82; W Jones, 147 ; Styles, 346 ; i Mod. 282 ; i Hale PI. Cr. 546. e-i2 East 409 . iTayl. 58; 2 Hayw. 108. f-Co. 3d Inst. 47: 48!. Comm. 195; 2 Chitty Cr. 1.. 724 |f-Laws U. S. 1790. Vol. i, Ch. 9, $ Q, 12, pp 113, 115 ; Revision 1873-4, \ S359, 5360. h-Laws U. S. 1815, Vol. 3, Ch. 38, jj 7, Revision 1873-4, 1342, Arts. 21, 22, 23. LAW. be otherwise, that which makes the contrary of a thing impossible. If man's actions are determined by causes beyond his control he acts from necessity, and is not responsible nevertheless, no man can plead necessity in excuse for crime. NIGHT WALKERS are those who sleep by day and walk by night for some unlawful pur- suit. They are liable to arrest. 1 OBSCENITY. See INDECENCY, above. OBSTRUCTING PROCESS is any act by which cne or more persons attempt to prevent, or do prevent the due execution of lawful process. This is an offence against public justice of a very high and presumptive nature; and more partic- ularly so where the obstruction is upon crimi- nal process ; a person opposing an arrest upon criminal process becomes thereby an accessory in felony, and a principal in high treason.^ The officer must be prevented by actual vio- lence, or by threatened violence, accompanied by the exercise of force, or by those having capacity to employ it, by which the officer is pre- vented from executing his writ. The officer is not required to expose his person by a per- sonal conflict with the offender. k OBSTRUCTIONS TO HIGHWAYS; NAVIGATION; STREAMS; RAILWAYS; ETC. See GENERAL STATUTES. OVERT ACTS are those which are open to view, apparent, unconcealed. Thus, an overt act of treason is distinguished from a secret design or intention not carried into effect; and even from words spoken. An overt act of treason is proof of the intention of the traitor, because it opens his designs ; without an overt act, treason cannot be committed. 1 PARDON is an act of grace proceeding from the power intrusted with the execution of the laws (or a body having power therefor) which exempts an individual upon whom it is be- stowed from the punishment the law inflicts for a crime he has committed. 01 Absolute pardon frees the criminal unconditionally. Conditional pardon frees the criminal upon performance of the conditions annexed, and not otherwise." General pardon extends to all offenders of the same kind ; and is either ex- press, as, when a general declaration is made that all offenders of a certain class shall be pardoned, or implied, as in case of the repeal of a penal statute. The pardoning power is lodged in the ex- ecutive of the United States and of the various States, and in boards established by law. In some Slates a concurrence of one of the legis- i-See 2 Hawk. PI Cr. 120; 3 Taunt. 14; Hammond N. P. 135. j-4 Bl. Comm. 128; Hawk. PI. Cr. Ch. 17, I i ; i Russ. Cr. 360. lt-z Wash. C. C. 169 ; see 3 Id 335 ; 12 Ala. (N. S.) 199. 1-2 Chitty Cr. L. 40; Arch Cr. PI. 379; 4 Sharsw. Bl. Comm. 79 ; Co. 3d Inst. 12 i Dall. 33 : 2 Id. 346; i Cranch, 75; 3 Wash. 234; 2 Gabbett Cr. L. 890, 891. m-7 Pet. 160. n-i Bail 283; 10 Ark. 284; i M'Cord, 176; i Park. Cr. Cas. 47 0-2 Overton, 423. p-4 Sharsw. Bl. Comm. 400; 3 Wash. C. C. 335: 7lnd. 359; i Jones, i. q-i M'Cord, 176; i Bail. 283; 2 Id. 516; 2 Caiiies, 57; i Park. Cr. Cas. 47; sec 3 Johns. Cas. 333; 9 Part. (Ind.)2o; i Bay. 334- r-ioAla. 475; i Bay, 34. s-ia Pick. 496; lative bodies is required. It is to be exercised in the discretion of the power with whom it is lodged. In order to render pardon valid, it must express with accuracy the crime intended to be forgiven.? In case of a conditional par- don, if there be a breach of condition, the pardon is avoided.i The effect of pardon is to protect from punishment the criminal for the offence pardoned, but for no other.' But par- don for an assault and battery which afterwards becomes murder will not operate as a pardon of the murder. 8 In general, the effect of a full pardon is to restore the convict to all his rights ; but to this there are some exceptions. I. It does not restore civic capacity.* 2. It does not affect a status of other persons which has been altered, or a right which has accrued, in consequence of the commission of the crime or its punishment." When pardon is general, either by an act of amnesty, or by the repeal of a penal law, it is not necessary to plead it ; because the court is bound, ex-officio, to take notice of it; T and the criminal cannot waive such pardon, because by his admittance no one can give the court power to punish him when it judicially appears there is no law to do it. But when the pardon is special, to avail the criminal it must judicially appear that it has been accepted, and for this reason it must be specially pleaded, w and if he has obtained a pardon before arraignment, and instead of pleading it in bar he pleads the general issue, he is deemed and taken to have waived the benefit of it, and he cannot afterwards avail himself of it in arrest of judgment. 1 All contracts made for buying or procuring a pardon for a convict are void.* PENALTIES are pecuniary punishments for the commission of public offences. See FINES, above. PERJURY is the act or crime of (wilfully and corruptly) making a false oath when lawfully administered 1 in any judicial proceeding.' The intention must be wilful; the oath must be taken and the falsehood asserted with delib- eration and consciousness of the nature of the statement made ; for if it has arisen in consequence of inadvertency, surprise or mis- take of the import of the question, then there is no corrupt motive. 1 * The oath must be false; the party must believe that what he is swearing is false. The party must be lawfully sworn ; an oath therefore taken by a private person or before an officer having no jurisdic- tion will not amount to perjury. The pro- ceedings must be judicial; and perjury cannot see Plowd. 401 ; i Hall, 426. t-2 Leigh, 724 ; see i Strobh. 150; 2 Wheel. Cr. Cas. 451; 33 N. H. 388. u- 10 Johns. 232 ; 4 Wash. C. C. 64 ; 2 Bay, 565 ; 5 Oil- man, 214. v-i Baldw. C. C. 91. W-7 Pet. 150, 162. X-i Rolle, 297 ; see i Dyer, 34, a; Keilw. 58 : T. Raym. 13 ; 3 Met. (Mass.) 453. y-4 Bouv. Inst. n. 3857. z-Co. a-2 Bishop Cr. L. 860 ; 4 Blackf. 355 ; 7 Id. 25, 49 ; 8 Id. 452. b-Hawk. PI. Cr. Bk. j, Ch. fo, 2 2 ; Coke Eliz. 492 ; 2 Shaw. 165 ; 4 McLean C. C. 113 ; 3 Dev. 114:7 Dowl. & R. 665 : 5 B. & C. 346 ; 7 C. & R. 17; ii Q. B. 1028; i Rob. 729; 3 Ala. (N. S.) 602. c-s Mo. 21 ; i Bail. 595 ; n Met. (Mass.) 406; 5 Humph. 83 ; i Johns. 49 ; Wright, 173 ; Russ. & R. 459. LAW. be committed when the matter is not regularly before the court. 4 The assertion must be ab- solute; but if a man swears that he believes that to be true which he knows is false, it will be perjury, 6 and it is immaterial whether the testimony is given in answer to a question or voluntarily.' On a question of estimation of the value of a thing in question, there can be no perjury,* unless in some cases a false state- ment of opinion may become perjury . h The oath must be material to the question depending. 1 Perjury may be committed by making a false affirmation as well as a false oath, by an atheist, heathen, Jew, etc., as well as a Christian. PERSONATION (false) is the assumption of the character of another without lawful author- ity, for the purpose of committing some act to the prejudice of him personated, without his consent. This was a misdemeanor at common law and punishable as such.* See GENERAL STATUTES. PETIT LARCENY. See GRAND LARCENY, above. PETIT TREASON. See OVERT ACT, above ; TREASON, below. PIRACY is the unlawful act, practice, or crime of robbery or forcible depredation on the high seas ; a crime that answers to robbery on the land.* The penalty for this offence is death. 1 See title COPYRIGHT, above. POLYGAMY. See BIGAMY, above. PREMEDITATION. See INTENTION; MAL- ICE, ETC., above. PRESENTMENT. See INDICTMENT, above. PRINCIPAL. See ACCESSORY, above. PROFANITY. See GENERAL STATUTES. PROSECUTOR. See ACCUSATION, above. PROSTITUTION. See HOUSE OF ILL- FAME; LEWDNESS ; NIGHT-WALKER, above. PROVOCATION is that which excites anger; the cause for resentment. No words, epithets, or vituperation whatever will justify an assault, or assault and battery. Provocation simply, unaccompanied by a crime or misdemeanor, will not justify any breach of the peace. In case of homicide, provocation shewn to be sufficient may reduce the offence from murder to manslaughter. But when the provocation is given for the purpose of justifying or excusing an intended murder, and the party provoked is killed, it is no justification. 1 " PUNISHMENT is some fine, forfeiture, or pen- alty prescribed or warranted by law, inflicted upon and suffered by a person for the commis- sion of a public offence, or for the omission of some duty or act required by law, lawfully im- posed by a competent judicial tribunal. The d-4 Hawks. 182; 2 Hayw. 56; 3 M'Cord, 308 : 8 PicU. 453 : i Nott. & M'C. 546 ; 9 Mo. 824 ; 18 Barb. 407; 10 Johns. 167; 26 Me. 13; 7 Blackf. 25 ; 5 B. & Aid. 634; i C. &P. 258; 9 Id. 513. e-ioO. B. 670; 3 Wils.427; a W. Bl. 881; i Leach, 242 : 6Binn. 249 ; Gilbert Ev. (Lofft Ed.) 662. f-3 'Zabr. 49 ; 12 Met. (Miss.) B-Sid. 146; i Kebl. 510. h-io Q. B. 670; 15 III. 357 ; 3 Ala. (N. S.) 602 ; 3 Strobh. 147 : 6 Blackt 62 ; i Leach Cr. Cas. (4 Ed.) 325. i-i T. R. 63 ; 12 Mass. 274 ; 3 Murph. 123 ; 4 Mo. 47 ; 2 111. 80 ; 9 Miss. 149 ; 6 Pcnn. St. 170; 2 Cush. 212. J-2 East. PI. Cr. object of punishment is two-fold : to reform the offender, and deter him and others from committing like offences ; and to protect so- ciety." Punishments may be corporal or otherwise: corporal by death, whipping, imprisonment, or banishment, etc.; otherwise by fine, forfeiture, or other deprivation or penalty imposed upon the goods of the offender, etc. PUTTING IN FEAR. See PIRACY, above ; ROBBERY, below. QUARREL. See AFFRAY ; DUELLING, above. RAPE is the carnal knowledge of a woman by a man, forcibly and against her will. The knowledge of a woman's person must be forcibly and against her will ; and if her consent has not been voluntarily and freely given, the offence is complete ; nor will any subsequent acquies- cence on her part do away with the guilt of the ravisher. A consent obtained from a woman by actual violence, by confinement, or threats of murder, or by the administration of stupefy- ing drugs, is not such a consent as will shield the offender, or turn his crime into adultery or fornication ; and if the connection took place when she was in a state of insensibility from liquor, having been made drunk by the prisoner, though the liquor was given only for the pur- pose of exciting her, it is a rape.* Having car- nal knowledge with a woman by a fraud which induces her to suppose it is her husband docs not amount to rape ;P but the party may be in- dicted for assault. A husband cannot be guilty of a rape on the wife, for his act is not unlaw- ful ; but he may be a principal in the second degree of a rape committed on his wife, as where he held her while his servant committed the rape."> As a child under ten years of age is incapable, at law, of giving her consent, it: follows that the offence may be committed on such child whether she consents or not. A male infant under fourteen years of age is supposed by law incapable of committing the offence. r But not only can an infant under fourteen years, if of sufficient mischievous dis- cretion, but even a woman may be guilty as principal in the second degree. Above the age of fourteen years a male is always presumed capable of this offence. Penetration alone, without emission, is suffi- cient. 8 REPRIEVE is a withdrawal of sentence for an interval of time, and operates in delay of execution.' It is granted by the favor of the pardoning power. They are granted from a necessity of law ; for example, when a woman is convicted of a capital offence, after judgment 1010; 2 Russ. Cr. 479. k-3 Wheat. 610 ; 5 Id. 153, 163 ; 3 Wash. C. C. 209 ; i Kent Comm. 183. x-Laws U.S. 1790, Vol. i.Ch.o., i 110, p. 114. m-2 Gilbert Ev. (Lofft) 753. ll-See 4 Sharsw. Bl. Comm. 7; Ruther- ford Inst. Bk. i. Ch. 18. o-i Denio Cr. Cas. 89 ; i C. & K. 746. p-Russ. & R. 487 ; 6 Cox Cr. Cas. 412 Dearsl. Cr. Cas. 397 : 8 C. & P. 265, 286; i C. & K. 415. q-i Hargrave St. Tr. 388. r-i Hale PI. Cr. 631; 8 C. & P. 738. s-Addis. 143; * Const. 351 ; i Beck. Mod. Jur. 140; 4 Chitty Bl. Comm. 213, n. 8. (-4 Bl. Comm. 394. LAW. $<*> she may allege pregnancy, in delay of execu- tion.* The court is also bound to grant a re- prieve when the prisoner becomes insane. T REQUISITION. See FUGITIVE FROM JUSTICE, above. REPRIMAND is censure pronounced by a public officer against an offender. This species of punishment is used by legislative assemblies to punish members or others guilty of impropriety of conduct toward them or the presiding officer. It is usually delivered by the Speaker. RESCUE. See ARREST, ESCAPE, above. RESPITE. See REPRIEVE, above. RIOTS are acts done in a violent and tumultu- ous manner, by three or more persons, to the terror of the people, whether the act intended was lawful or unlawful. * A riot cannot be committed by fewer than three persons ; r a judgment against one person for a riot would be void/ It must be proved: I. That there was an unlawful assembling,* or a lawful assem- bly converted into a riot." 2. That there was actual violence and force on the part of the rioters, or such a tendency to force and violence as to strike terror to the public mind. b 3. That the defendants acted in the riot, and were participants in the disturbance.* ROBBERY is the forcible and felonious taking, from the person of another, goods, money, per- sonal property or any article of value, by vio- lence or putting in fear. d The property must be taken by force or putting in fear, 8 and fear must be induced from apprehension of danger/ The knocking down of a man ; the snatching of an ear-ring from the ear ;* pulling out a watch from a fob, by the chain, h are examples of violence ; but snatching property from a person unawares will not be robbery unless some injury is done to the person. 1 Presenting a pistol and demanding money ;J threatening to take and kill another child ; k to destroy one's house ;' are examples of putting in fear. Obtaining money by false pretences, misrep- resentation or fraud, unaccompanied by vio- lence or putting in fear, is not robbery. If the property is once taken it will be no defence that the robber delivered it back to the owner. If a man under an impression that the prop- erty is his own obtain it by threats, it is merely trespass and not robbery." ROUT is a clamorous and tumultuous assem- bly. It is a disturbance of the peace by per- sons assembled to do a thing which, if executed, would have made them rioters. It generally n-See Co. jA Inst. 17 : i Hale PI. Cr. 368 ; 2 Id. 413 ; 4 BI. Comm. 395. v-4 Hargrave St. Tr.~205, 206; Co. 3 d Inst. 4; Hawk. PI. Cr Bk. t, Ch. i, 3 4 ; i Chitty Cr. L. 757. w-Hawk. PI. Cr. Ch. 65, ? i ; see 3 Blackf. 209; 4 Id. 72; 3 Rich. 337; 5 Penn. St. 83. x-3 Inst. 176. y-4 Blackf. 72. z-i8 Me. 346; 2 Campb. 328. -i5 N. H. 169. fo-2 Campb. 369 : see i Hill (S. Ca.) 362. e-i MoVr. 142. l-4 Bl. Comm. 243 ; i Baldw. C. C. 102; see 12 Ga. 293. e-is Ind. 288. f-Fost. 128. ST-i Leach Cr. Cas. 320, 335. h-R. & R. 419. i-2 East. PI. Cr. 702, 709; i Leach, 290; i C. & P. 304. J-Fost. 129. k-2 East. PI. Cr. 718, 735. 1-Id. 731. in-i Hawk. Ch. 34, ? 2 ; i Hale, 533. 11-3 C. & P. 409. o-Hawk. PI. Cr. Ch. 65, g 14 ; i Russ. Cr. 253 ; agrees in all particulars with a riot, except only in this that it may be a complete offence without the execution of the intended purpose/ SUBORNATION OF PERJURY is the offence of procuring another to commit legal perjury, who, in consequence of the persuasion, takes the oath to which he has been incited.? To complete the offence the false oath must be actually taken, and no abortive attempt to solicit will complete the crime.*' But the criminal solicitation to commit perjury, though unsuccessful, is a misdemeanor at common law.' SURRENDER OF CRIMINAL. See FUGITIVE FROM JUSTICE, above. SWEAR. See PERJURY; SUBORNATION OF PERJURY, above. SWINDLER. See FALSE PRETENCES; FRAUD, etc., above. SMUGGLING is the unlawful and fraudulent taking into a country or out of it any articles of merchandise prohibited by law, or to avoid the payment of duties upon the same. SODOMY is a carnal copulation by human beings with each other against nature, or with a beast.' It may be committed between two persons, both of whom consent, even between husband and wife ;' and both may be indicted." Penetration of the mouth is not sodomy . T STEALING. See LARCENY, above. SECONDS. See DUELLING, above. SELF-DEFENCE is the act of defending one's person and property from injury. A man may defend himself and even com- mit a homicide for the prevention of any forci- ble and atrocious crime, which, if completed, would amount to a felony," and, of course, under like circumstances, mayhem, wounding and battery would be excusable at common law. 1 A man may repel force by force in defence of his person, property, or habita- tion against any one who manifests, intends, attempts, or endeavors, by violence or surprise, to commit a forcible felony, such as murder, rape, robbery, arson, burglary, and the like. In these cases he is not required to retreat, but he may resist, and even pursue his adver- sary, until he has secured himself from all danger.? A man may defend himself when no felony has been threatened or attempted: I. When the assailant attempts to beat another, and there is no mutual combat; as where one meets another and attempts to commit or does commit an assault and battery on him, the person attacked may defend himself;* and in 4 Bl. Comm. 140 : Viner Abr. Kfots, etc. (A. 2) ; Com. Dig. Forcible Entry, etc. (D. 9). |>-Hawk. PI. Cr. Bk. i, Ch. 69, # 10. q-z Show, i; 5 Met. (Mass.) 241. r-2 East. 17 ; 6 Id. 464 ; 2 Chitty Cr. L. 317, 480. 8-2 Bishop Cr. L. t-8 C. & P. 604. n-i Denio Cr. Cas. 464; 2 C. & K. 869 v-Russ. & R. Cr. Cas. 331. As to emission, see 12 Co. 36; i Va. Cas. 307. W-i? Ala. (N. S.)s87; 563.85: i Jones, 190; 30 Miss. 619; 14 B. Mon. 103, 614 ; 3 W*h. C. C. 515. x-i East. Pi. Cr. 271 : 4 Bl. Comm. 180. y-7 J. J. Matsh, 478; 4 Bingh. 628. A woman may defend her chastity by kill- ing her assailant. 2-4 Denio, 448 ; Hill & D. 229 ; 24 Vt. 218; j Harnng. 22; 3 Brev. 515; 5 Gray, 475 ; 3 C. & P. 31 ; 9 Id. 474; see 10 Ired. 214. Sio LAW. case of an offer or attempt to strike another, when sufficiently near, so that there is danger, the person assailed may strike first, and is not required to wait until he has been struck.' 2. When there is a mutual combat upon a sudden quarrel. In these cases both parties are ag- gressors ; and if in the fight one is killed, it will be manslaughter at least, unless the sur- vivor can prove two things, viz., that before the mortal stroke was given, he had refused any further combat, and had retreated as far as he could with safety , b and that he killed his adversary from necessity, to avoid his own destruction. A man may defend himself against animals, and he may, during the attack, kill them, but not afterwards.* TAKING. See ASSAULT, above. TERROR. See AFFRAY; RIOT; ROUT, above. THOUGHT. See INTENTION ; MALICE. TREASON is the actual levying war against the United States ; adhering to their enemies and giving them aid and comfort. In England high treason affects the sovereign or state, such as offences above enumerated. Petit treason affects only individuals, as breach of fidelity. Treason is the highest crime of a civil nature of which a man can be guilty. It is punishable by death or imprisonment at hard labor, not less than five years, and fine not less than ten thousand dollars, and disqualification for any office under the United States. 6 No person tan be convicted of treason unless on the testi- mony of two witnesses to the same overt act, or on con f ession in open court. TRESPASS. See MALICIOUS AND MISCHIEV- OUS TRESPASS, above. UNLAWFUL ASSEMBLY is a disturbance of the public peace by three or more persons, who meet together with an intent mutually to assist each other in some unlawful enterprise of a private nature with force and violence. If they move forward towards its execution it is then a rout; if they actually execute their design it amounts to a riot. f VAGRANTS are described as follows : 1. "All persons who unlawfully return into any district whence they have been legally re- moved, without bringing a certificate from the proper authorities of the city or district to which they belong, stating that they have a settlement therein." 2. "All persons who refuse to perform the work which shall be allotted to them by the overseers of the poor, as provided by law." -B. N. P. 18 ; 2 Roll. Abr. 547. b-8 N. Y. 396 ; 4 Dev. & B. 491; 1503.117; 17 Id. 465; 9 Ired. 485; 10 Id. 214 ; i Ohio St. 66 : i Hawks. 78 ; 210 Selfridge's Case. e-3a Me. 279; 3 ll.-xlst. 220; n Humph. 200; 4 Jiarb. 460 ; 2 N. Y. 193 ; Coxc, 424 ; 25 Ala. (N. SJ 15 ; 8 15. Mon. 49 ; 16 III. 17. l-i C. & P. 106 ; 10 Johns. 365 ; 13 Id. it. e-Laws U. S. i8b.f, Vol. 12, Ch. 195, $ f 3. I'- ^89 . Revision 1873-4,?? sj.u-.l. * U'- Com in. 140; i Russ. Cr. S4 ; Hawk. PI Cr. Ch. 05, # 9 . Com. Dig. Forcible Ent. (D. 10); Viner Abr. Riots, eic. (A.) h-See DOMICIL. ante. i-Storv Conll. L. J,<>, ; 9 Me. 140; a lilackf. 407; 8 Ala. (N. S.; 45. n Id. 3. "All persons going about from door to door, or placing themselves in streets, high- ways, or other roads, to beg or gather alms, and all persons wandering abroad and begging, who have no fixed place of residence in the township, ward, or district in which the vagrant is arrested." 4. "All persons who shall come from any place without the State or Commonwealth to any place within it and shall be found loitering or residing therein, and who follow no labor, trade, occupation, or business, and have no visible means of subsistence, and can give no reasonable account of themselves or their busi- ness in such place." The punishment for this offence is labor upon the poor farm, upon the roads or highways, or confinement in the common jail, work-house, house of correction, or poor-house for a term of from ten days to six months. See GENERAL STATUTES. DOMICII LAW OF. DOMICIL is that place where a man has his true, fixed, and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. 11 The law of the place of domicil governs as to all acts of the parties when not controlled by the law of the place where the contract was made or law of the place where the thing is situated. Personal property of the woman fol- lows the law of domicil upon marriage. A di- vorce valid under the law of domicil of both parties is good everywhere. 1 But there must be an actual domicil of one party at least,! and personal jurisdiction over both parties to make a divorce binding extra territorially. k The state and condition of the person, ac- cording to the law of his domicil, will gen- erally, though not universally, be regarded in other countries as to acts done, rights acquired, or contracts made in the place of his native domicil ; but as to acts, rights, and contracts done, acquired or made out of his native domi- cil, the law of place will generally govern in respect to his capacity and condition. 1 If a person goes into a foreign country and engages in trade there, he is, by the law of nations, to be considered a merchant of that country, and subject for all civil purposes, whether that country be hostile or neutral, and this whether the effect be to render him hostile or neutral in respect to his bona fide trade." The disposition of, succession to, or distribu- tion of the personal property of a decedent, wherever situated, is to be made in accordance 826; 14 Mass. 227; 8 N. H. 160; 13 Johns. iqa ; 8 Paige Ch. 406; 12 Barb. 640: 7 Dana, 161 ; 3 W. L. lour. 475 ; Bishop Marr. & Div. {} 710. J-i Hafig. liccl. 639 : RUS.S. & R. Cr. Cas. 237; 2 Clark. & F. Ho. L. 567; Furguson Marr. & Div. 08; 8 N. H. 160; 14 Mass. 227; 13 Johns. 192 ; 15 Id. 121 ; 13 Wend. 407. 8 PaipeCh. 406; 7 Dana, 181 ; 2 Blackf. 407. K-i Dev. & B. Eq. so8 , i<, Johns. 121 , 7 Dana, 181 ; see o Me. 140. 1-2 Kent Coiuin. 234: see Lr^ loci, m-8 I". R. 381 ; 4 Johns. Ch. 460 ; 2 Harr. & G. 191; 6 Pick. 286: 9 N. H. 137; 8 Paige Ch. 319; i Mas. C. C. 381; 6 Monr. 52; 17 Ala. (N. S.) 286; 29 Id. 73; 6 Vt. 374. Stocks are considered as personal property in this respect; i Crompt. & J. 151; Bligh (N. S.) 15 ; i Jarman Wills, 3. q-i Jarman Wills, 3. r-4 Black. 53; 22 Me. 304; 2 111. 373; 2 Bail. 436; 5 Pet. 519 : 2 B. Mon. 582 ; 8 Paige Ch. 519 ; 3 Curt. Eccl. 468; ii N. H. 88; i M'Cord, 354; 5 Gill. & J. 483. s-i Blackf. 372; 6 Monr. 527; 22 Me. 303; 8 Ohio, 239; 4 Me. 138; see Lex rei Sitce. t-a Ves. & B. Ch. 127; * Ves. Ch. 192; 8 Sim. Ch. 279; 4 Hagg. Eccl. 346; 4 Mylne & C. 76; 2 Harr. & J. 191 ; i Binn. 336 ; 4 Johns. Ch. 460 ; i Mas. C. C. 381 ; 12 Wheat. "169 ; 9 Pet. 483. 11-6 Paige Ch. 630 ; "Story Confl. L. \ 447 ; Erskine Inst. b, 3, tit. 9, g 4. y-3 Clark & F. Ho. L. 544, 570; 4 Bligh, 502; 3 Sim. Ch. 298; 2 Brown Ch. 38 ; Story Eq. Jur. g 1068 : 9 Pet. 483. w- 2 Ves. Ch. 35 ; 2 Bos. P. 229 5 B. & C. 438 ; 8 Sim. Ch. 310; 14 Mart. 99; 3 Paige Ch. 182 ; 2 Harr. & J. '4>3 : 4 Johns. Ch. 460; i Mas. C. C. 418; 15 N. H. 137. 33 legislature. Such law is void as to those cases in which, if given effect, it would be ex post facto ; but so fa'r only. In cases arising under it, it may have effect; for as a rule for the future it is not ex post facto. There is a dis- tinction between ex post facto laws and retro- spective laws ; every ex post facto law must necessarily be retrospective, but every retro spective law is not ex post facto law ; the for- mer only are prohibited. It is fully settle'! that the term ex post facto, as used in the Con- stitution, is to be taken in a limited sense, a referring to criminal or penal statutes alone, and that the policy, the reason, and the hu- manity of the prohibition against passing ex post facto laws do not extend to civil cases, to cases that merely affect the private property of citizens. Some of the most necessary acts of legislation are, on the contrary, founded upon the principles that private rights must yield to public exigencies. 11 Laws under the following circumstances are to be considered ex post facto laws within the words and intent of the prohibition : 1. Every law that makes an act done before the passing of the law, and which was inno- cent when done, criminal, and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was when it was committed. 3. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; though it would be otherwise of a law mitigating the punishment. 1 4. Every law that alters the legal rules of evidence, and receives less or different testi- mony than the law required at the time of the commission of the offence, in order to convict the offender ; though it might be otherwise of a law merely modifying the remedy or mode of procedure.! The right to pass retrospective laws, with the exceptions above mentioned, become obli- gatory, unless prohibited by the constitution of the State. k And laws should never be consid- X-Story Confl. L. ? 481 ; 2 Ves. Ch. 35 ; a Hagg. Ecd. 455 ; 2 Keen, 293. y-Story Confl. L. JS 528 ; 9 Mod. 66; Chanc. Prec. 511; 2 Ves. & B. Ch. Ir. 131 ; 2 Keen. 293. z-4 Johns. Ch. 471; 2 H. Bl. 402; 4 T. R. 182; 2 Rose. Bank, 97 ; 8 Ves. Ch. 82; I Cr. M. & R. 296 ; see 6 Pick. 312. -6 Pick. 286 ; 14 Martin, 93, joo; 6 Binn. 353 ; Story Confl. L. \ 411. b-s East. 131 ; 17 Mart. 596; 6 Binn. 360; 5 Cranch. 289; 12 Wheat. 213; S N. H. 213; i Paige Ch. 237; i Harr. & M'H. 236. C-2O Johns. 229; 6 Binn. 353; 6 Pick. 286. d-Story Confl. L. $ 323-328, 423, a. ; see CONFLICT OP LAWS, above, e-o CVanch. 138 ; i Kent Comm. 408. f-Lieber Encyc. Am.; 10 Mass. 188; n La. 175; 5 Met. (Mass.y 187; 4 Barb. 505; Wall Jr. C. C. 217; 9 Ired. 99; i Texas, 673 ; 13 Me. 255 ; 27 Miss. 704 ; i Bosw. 673. S-U. S. Const. Art. i, 9. h-3 Ball. 386; 8 Wheat; 89 ; 17 How. 463 ; 6 Cranch. 87 ; 8 Pet. 88 ; n Id. 421 ; see i Cranch. 109 ; 9 Id. 374; i Gall. C. C. 105 ; 2 Pet. 380, 523, 6-27; 3 Story Const. 212; Sergeant Const. L. j-3 ball. li'-4 S. & R. . . . - . * , t ^, . 179 ; 7 Johns. 477 : see 3 S. & R. 169 ; 2 Cranch.^ 272 ; Pet. 414; 8 Id. no; n Id. 420; i Baldwi Penn. St. 149. Ball. 396 ; i Bay, "ranch. 272 ; nC. C. 74; 5 512 LAW. ered as applying to cases which arose previously to their passage, unless the legislature have clearly declared such to be their intention. 1 FOREIGN LAW. FOREIGN LAWS are the laws of a foreign country, 1 " not the laws of the different States of this country. The courts do not judicially take notice of foreign laws; and they must, therefore, be proved as facts." The manner of proof varies according to circumstances. As a general rule, the best testimony or proof is required; for no proof will be received which presupposes better testimony attainable by the party who offers it. When the best testimony cannot be obtained, secondary evidence will be received. Exemplified or sworn copies of written laws and other public documents must, as a general thing, be produced, when they can be procured; but should they be refused by the competent authorities, then inferior proof may be admitted. Where our own government has promulgated a foreign law or ordinance of a public nature as authentic, that is held sufficient evidence of its existence.!* When foreign laws cannot be proved by some mode which the law respects as being of equal authority to an oath, they must be verified by the sanction of an oath. The usual modes of authenticating them are by an exemplification under the great seal of the State, or by a copy proved by cath to be a true copy, or by a certificate of an officer authorized by law, which must itself be duly authenti- cated.' Foreign unwritten laws, customs, and usages may be proved, and are ordinarily proved, by parol evidence; and when such evidence is objected to on the ground that the law in question is a written law, the party ob- jecting must show that fact. r Witnesses in Cuba, examined under a commission touching the execution of a will, testified, in general terms, that it was executed according to the law of that country; and, it not appearing from the testimony that there was any written law upon the subject, the proof was held suffi- cient.* A defendant pleaded infancy in an ac- tion upon a contract governed by the law of Jamaica ; held, that the law was to be proven as a matter of fact, and that the burden lay upon him to show it. 1 Proof of such unwritten law is usually made by the testimony of witnesses learned in the l-ia La. 352 : see Barnngton Stat. 466, n. : 7 Johns. 477; i Kent Comm. 455 ; Taylor Civ. L. 168; Code, i, 14, 7: Bracton. i, 4, f, 228; Story Const. 2 1393: I McLean C. C-4O; i Meigs,437. 3 Dall. 391 ; I Blackf. GII /-/-* -- *_.- n ~ ~~ all. C.C. 139; i ni-See ante, Evil 193; 2 Gall. C.C '139; i Yerg. 360; 516.320; 12 S. & R. 330. ni-See ante, EVIDENCE. n-Cowp. 144 ; 3 Es Cas. 163; 3Campb. i6 ; 2 Dow. & C. Ho. L. 171 ; Cranch, 38 ; 216.187,236,237; 616.274; 2 Harr. & J. 193 ; 3 Gill. & J. 234 : 4 Conn. 517 ; 4 Cow. 515, 516, n. ; i Pet. C.C. 229 ; 8 Mass. 99; i PaigeCh. 220; 10 Watts, 158. 0-2 Cranch. 237. p-i Cranch, 38 ; i Dall. 462; 6 Binn. 321 ; 12 S. & R. 203. q-2 Cranch, 238; 2 Wend. 411; 6 Id. 475; 58. & 11.523; 1516.84; 2 Wash. C. C. 175. r-is S. & R. 87; 2 La. 154. s-8 Paige Ch. 446. t-8 Johns. 190. n-2 Cranch. 237; i Pet. C.C. 225; 2 Wash. C. C. 175 : >5 S. & R. 84; 4 Johns. Ch. 520; Cowp. 174; 2 Hagg. A6m. App. 15- 144. In England certificates of persons in high an- thojrity have been allowed as evidence in such cases. 3 law and competent to state it correctly under oath." The public seal of a foreign sovereign or state affixed to a writing, purporting to be a written edict, or law, or judgment, is of itself the highest evidence, and no further proof is required of such public seaI. T But the seal of a foreign court is not, in general, evidence without further proof, and must, therefore, be established by competent testimony.* The acts of the legislatures of the several States shall be authenticated by having the seal of their respective States affixed thereto. 1 But the rules prescribed by acts of Congress do not exclude every other mode of authentication, and courts may admit proof of the acts of the legislatures of the several States, although not authenticated under the acts of Congress. Ac- cordingly, a printed volume, purporting on its face to contain the laws of a sister State, is ad- missible as prima facie evidence to prove the statute law of that State.' The effect of foreign laws when proved is properly referable to the court. The object of the proof of foreign laws is to enable the court to instruct the jury what is, in point of law, the result from foreign laws to be applied to the matters in controversy before them. The court is, therefore, to decide what is the proper evi- dence of the laws of a foreign country ; and when evidence is given of those laws, the cour is to judge of their applicability to the mattei in issue.* FORUM LAW OF. The law of the forum (lex _for?) is the law of the country, to the tribunal of which appea', is made, 8 or where the action or proceeding is instituted, or the remedy sought. The forms of remedies, modes of proceed ing, and execution of judgments are to be regulated solely and exclusively by the laws of the place where the action is instituted. 1 The law of the forum governs as to the nature, extent, and character of the remedy,* as in case of instruments considered sealed where made, but not in the country where sued upon," and decides as to the deprivation of the rem- edy. The law of the forum is to decide who are proper parties to a suit. h Foreign corporations may sue 1 and be sued, when they have prop- erty within the jurisdiction.^ Arrest and im- prisonment may be allowed by the law of Hagg. Eccl. 767, 769. V-2 Cranch, 238 ; 2 Conn. 85 ; j Wash. C. C. 363 ; 4 Dall. 413, 416; 6 Wend. 475 : 9 Mod. 66. w-3 Johns. 310 ; 2 Harr. & J. 193 ; 4 Cow. Maj - 84; i2b.JSK.203; otsmn. 321; 5 Leigh. z-Story Confl. L. g 638 ; 2 Harr. & J. 193 : 3 Id. y-4 Cranch, 384 ; 12 S. & R. 203 ; 6 Binn. 321 ; 5 Leigh. 571. -Story Confl. L. g 638 ; 2 Harr. & J. 193 : 3 Id. 234.242; 4 Conn. 517; Cowp. 174. e-5 Clark & F. Ho. L.I. f-8Id. 121; ii M. &W. 877; 10 B. & C. 903; 5 La. 295; 2 Rand. 303; 6 Humph. 45; 2 Ga. 158; 13 N. H. 321 ; 24 Barb. 68; 4 Zabr. 333 ; 9 Gill, i; 17 Penn. St. 91 ; 18 Ala. (N. S.) 248 ; 4 McLean C. C. 540; 5 How. 83 ; ii Ind. 385 ; 33 Miss. 423. -17 Conn. 500; 37 N. H. 86; 2 Pat. & H. 144. fe-4 Cow. 508 ; 5 Johns. 2 Pet. 361 ; 2 Gill. 2 Caines, 362 ; J- 234 ; 3 Conn. Pet. 361 ; 2 Gill. & J. 234 ; 3 Conn. 523 ; 4 Id. 47, 49 ; How. 451 ; 9 Mo. j,6, 157. ll-n Ind. 485 ; 33 Mis 423 ; Merlin Rep. Etrang, 3 ii ; Westlake Priv. Int. 121. 1-8 B. &C. 427: 9 Ves. Ch. 347; 4 Johns. C 370 ; 13 Pet. 519. J-9 N. H. 394; 3 Met. (Mass.) 4*0 i B. &P. 360; 8 4 Id. 47, 49 ; 8 MIL _. L. 4 Johns. CK the forum, though they are not by the law of the place where the contract was made.' Where the debt is discharged by the law of the place creating it, such a discharge will amount to a discharge everywhere. It must be a discharge from the debt, and not an exemption from the effect of particular means of enforcing the remedy." The forms of judgment and execution are to be determined by the law of the forum. For the LAW OF INTEREST, as af- fected by the law of the forum, see CONFLICT OF LAWS, above. For DAMAGES, see title, DAM- AGES, ante. Statutes of limitation affect the remedy only, and, hence, the law of the forum will be the governing law.P But these statutes restrict the remedy for citizens and strangers alike.i The restriction applies to a suit on a foreign judg- ment/ The right of set-off is to be determined by the law of the forum. 8 Liens, implied hypoth- ecations and priorities of claim generally, are matters of remedy.* A prescriptive title to personal property acquired in a former domi- cil will be respected by the law of the forum." Questions of the admissibility and effect of evidence are to be determined by the law of the forum. T The law of the place is presumed to be that if the forum till the contrary is shown , w and also the law of the place where the thing is situated.* INTERNATIONAL LAW is that ex- isting and regulating the mutual intercourse between different nations. It is distinguished as the rights among nations and the rights of nations. The natural law, or the doctrine of rights and of state, forms the scientific basis of international law ; for nations, like lesser communities, and like individuals, have rights and correlative obligations, moral claims, and duties. The particular sources of international law are jural and moral. The jural elements are : I. The rights of states or nations as such, deducible from its nature and its office as protector of those who live under its law. 2. The right which the state or nation shares with individuals, and in part with artificial persons, as the rights of property, contract, and reputation ; and, 3. The rights which arise when it is wronged, as those of self-protection and redress. To these have been joined by some the rights of punishments and of con- quest the latter, at least, without good reason ; 1-j East. 453 : 2 Burr. 1089 ; 5 Clark & F. Ho. L. i ; i B. & Ad. 284 ; 14 Johns. 346 ; 3 Mass. C. C. 88 ; 5 Id. 378; i Pet. 317 : i Wash. C. C. 376; 10 Wheat, i. in- _T^__^ Tiri - ^ _ \ir i>! o. HT . _^ Johns. 233 ; 7 Johns. Ch. 297 ; 16 Me. 206. n-5 Binn. 381 ; 14 Johns. 346 ; 10 Id. 300 ; 8 B. & C. 479 ; i Atk. Ch. 255 ; 2 H. Bl. 553; 7 Me. 337; it Mart. 730; 15 Mass. 419 ; 5 Mas. C. C. 378. 0-3 Mas. C. C. 88 ; 5 Id. 378; 4 Conn. 47; 14 Pet. 67. p-6Dowl.Parl.Cas. 116; 5 Clark & F. Ho. L. 1-16; 8 Id. 121, 140; n Pick. 36; 7lnd.9i; 2 Paine C. C. 437 ; 36 Me. 362 ; MC 9 B. Mon. 518 ; 16 Ohio, 145. q-io B. & C. 903 ; a for there is and can be no naked right of con- quest, irrespective of redress and self-protec- tion. The moral elements are the duties of humanity, comity, and intercourse. Nations are voluntary: I. In deciding the question what intercourse they will hold with each other; 2. That they are voluntary in de- fining their rights and obligations, moral claims and duties, although these have an objective existence beyond the control of the will of nations ; and, 3. That when international law has arisen by the free assent of those who enter into certain arrangements, obedience to its provisions is as truly in accordance with natural law which requires the observance of contracts as if natural law had been intuitively discerned or revealed from heaven and no con- sent had been necessary at the outset. ALIENS. It cannot be affirmed that a state is obligated, in strict right, to admit foreigners into or to allow them transit across its territory, or even to hold intercourse with them. All this may be its duty, and perhaps, when its territory affords the only convenient pathway to the rest of the world or its commodities are necessary to others of mankind, transit and intercourse may be enforced. But, aside from these ex- treme cases, intercourse is only a duty, and not definable with precision, as is shown by the endless varieties of commercial treaties. It can only be said that the practice of Christian states is growing more and more liberal, both as regards admitting foieigners into their terri- tories, and to the enjoyment of those rights of per- son and property which the natives possess, and as regards domiciliating them, or even incorpo- rating them, afterwards, if they desire it, into the body politic. The multiplied and very close re- lations which have arisen between nations in modern times, through domiciled or temporary residents, have given rise to the question, What law, in particular cases involving personal status, property, contracts, family rights, and succession, shall control the decisions of the courts ? Shall it be always the lex loci, or sometimes some other ? The answers to these questions are given in private international law, or the conflict of law, as it is sometimes called, a very interest- ing branch of law, as showing how the Chris- tian nations are coming from age to age nearer to one another in their views of the private rela- tions of men. INTERCOURSE requires its agents, both those whose office it is to attend to the relations of states and the rights of their countrymen in Bingh. (N. C.) 202, 216 ; 5 C. & F. Ho. L. i ; 3 Johni. Ch. 190; 6 Wend. 475 ; 9 Mart. 526. For the effect of a discharge by statutes of limitation, where they are so drawn as to effect a discharge in a foreign state, see Story Confl. L. g 582; ii Wheat. 361 ; 2 Bingh. (N. C.) 202 ; 6 Rob. La'. 15. r-S Clark & F. Ho. L. 1-21 ; 13 Pet. 312 ; 2 B. & Ad. 413 ; 4 Cow. 528, w. 10 ; i Gall. C. C 371 ; 9 How. 407. 8-2 N. H. 296; 3 Johns. 263. t-ia La. An. 289; Story Confl. L. g 575. n-i? Ves. Ch. 8; 3 Hen. & M. 57 ; 5 Cranch, 358 ; n Wheat. 361 ; but see Ambl. 113. v-12 La. An. 410; 2 Bradf. Surr. 339; see EVIDKNCE. W-4 Iowa, 464; 10 Me. 247; 6 N. Y. 447; 13 Md. 392; 12 La. An. 673; 9 Gill, i ; 3 Bosw. 333. x-i Harr. & J. 687 ; ice FOREIGN LAWS, amu. 5*4 LAW. general, .and those who look after the commer cial interests of individuals. The former share with public vessels, and with sovereigns travel- ling abroad, certain exemptions from the law of the land to which they are sent. Their per- sons are ordinarily inviolate; they are not sub- ject to foreign, civil, or criminal jurisdiction; they are generally exempt from imposts ; they have liberty of worship, and a certain power over their trains, who likewise share their ex- emptions. Only within five centuries have ambassadors resided permanently abroad a change which has had an important effect on the relations of states. Consuls have almost none of the privileges of ambassadors, except in countries beyond the pale of Christianity. RIGHTS IN GENERAL. The rights of the state or nation, as such, may be comprised under the term sovereignty, or be divided into sov- ereignty, independence, and equality ; by which latter term is intended equality of rights. Sov- ereignty and independence are two sides of the same property, and equality of rights necessarily belongs to sovereign states, whatever be their size or constitution; for no reason can be as- signed why all states, as they have the same powers and destination in the system of things, should not have identically the same rights. States are thus, as far as other states are con- cerned, masters over themselves and over their subjects, free to make such changes in their laws and constitutions as they may choose, and yet incapable by any change, whether it be union, or separation, or whatever else, of es- caping existing obligations. With regard to every state, international law only asks whether it be such in reality, whether it actually is in- vested with the properties of a state. With forms of government international law has noth- ing to do. All forms of government, under which a state can discharge its obligations and duties to others, are, so far as this code is con- cerned, equally legitimate. Thus, the rule of non-intervention in the affairs of other states is a well-settled principle of international law. In the European system, however, there is an acknowledged exception to this rule, and also a claim on the part of certain states to a still wider departure from the rule of non-interven- tion, which other states have not as yet ad- mitted. It is conceded that my political ac- tion of any state or states which seriously threatens the existence or safety of others, any disturbance of the balance of power, may be resisted and put down. This must be regarded as an application of the primary principle of self-preservation to the affairs of nations. But when certain states claim a right to interfere in the internal affairs of others in order to sup- press constitutional movements and the action of a people without its own sphere, this is as yet an unauthorized ground of interference. The plea here is, on the part of those states which have asserted such a right, especially of Austria, Prussia, Russia, and at times of France, that internal revolutions are the result of wide- spread conspiracies, and if successful anywhere are fatal to the peace and prosperity of all ab- solute or non-constitutional governments. The right, if admitted, would destroy by an inter- national law all power, of the people in any state over their government, and would place the smaller states under the tutelage of two or three of the larger. England has always pro- tested against this enlargement of the right of interference, and France has established more than one revolutionary government in spite of it. TERRITORY. As to the question of territory, international law is tolerably clear. Beside the land and water included within the line of boundary separating one state from another, it regards as territory the coast-water to the dis- tance of a marine league, and the portions of sea within lines drawn between headlands not very remote, or, in other words, those parts of the sea which are closely connected with a par- ticular country when it needs to defend itself against attack, and its laws are exposed to vio- lation. The high sea, on the other hand, is free, and so is every avenue from one part of the sea to another, which is necessary for the intercourse of the world. It has been held that rivers are exclusively under the jurisdiction of countries through which they flow, so that the dwellers on their upper waters have no abso- lute right of passage to and from the sea; but practically, at present, all the rivers which di- vide or run through different states, are free for all those who live upon them, if not for all mankind. It has been claimed that ships are territory ; but it is safer to say that they are un- der the jurisdiction of their own state until they come within that of another state. By comity, public vessels are exempt from foreign jurisdic- tion, whether in foreign ports or elsewhere. TREATIES. Nations, like individuals, have the rights of contract, and their treaties are sub- ject to the same rules of interpretation and of morality which govern in municipal law. An interesting description of treaties are those of guaranty, by which sometimes a right of inter- vention in the affairs of other states is secured beforehand. But treaties may be broken, and all other rights invaded ; and there is no court of appeal where wrongs done by states can be tried. The rights of self-defence and of re- dress now arise, and are of such importance that but for redress by force or war, and to pre- vent war, international law would be a very brief science. WARFARE. The laws and usages of modern warfare show a great advance of the nations in humanity since the middle ages. The fol- lowing are among the leading principles and usages : That declarations of war, as formerly prac- tised, are unnecessary ; the change in this re- spect being due chiefly to the intimate knowl- edge which nations now have, through resident ambassadors and in other ways, of each other's movements and dispositions. LAW. 515 That at the opening of war the subjects of one hostile state within the territory of another are protected in their persons and property, and this notwithstanding it is conceded that by strict right such property is liable to confiscation. That war is waged between states, and by the active war agents of the parties, but that non-combatants are to be uninjured in person and property by an invading army. Contribu- tions or requisitions, however, are still collected from a conquered or occupied territory, and property is taken for the uses of armies at a compensation. That combatants, when surrendering them- selves in battle, are spared, and are to be treated with humanity during their captivity, until exchanged or ransomed. That even public property, when not of a military character, is exempt from the ordinary operations of war, unless necessity requires the opposite course. That in the storming of inhabited towns great license has hitherto been given to the besieging party ; and this is one of the blots of modern as well as of ancient warfare. But humane commanders avoid the bombardment of fortified towns as far as possible ; while mere fortresses may be assailed in any manner. The laws of sea-warfare have not as yet come up to the level of those of land-warfare. Especially is capture allowed on the sea in cases where it would not occur on the land. Yet there are indications of a change in this respect; privateering has been abandoned by many states, and there is a growing demand that all capture upon the sea, even from ene- mies, except for violations of the rules of con- traband, blockade, and search, shall cease. When captures are made on the sea, the title, by modern law, does not fully vest in the cap- tor at the moment, but needs to pass under the revision of a competent court. The captured vessel may be ransomed on the sea, unless municipal law forbids, and the ransom is of the nature of a safe-conduct. If a vessel is recap- tured, or rescued from other perils, a compen- sation is due to the rescuer, which is called salvage ; which see. In modern international law, questions of neutrality play a great part. A neutral is one, strictly, who affords assistance to neither party ; for assistance afforded to both alike, in almost every case, would benefit one party and be of little use to the other. The neutral territory, on land and sea, must be untouched by the war ; and for all violations of this rule the neutral can take or demand satisfaction. The principal liabilities of neutral trade are the following : In regard to the nationality of goods and vessels, the rule, on the whole, has been that enemy's goods were exposed to capture on any vessel, and neutral's safe on any, and that the neutral vessel was not guilty for having enemy's goods on board. Owing to the declaration of the peace of Paris in 1856, the humane rule that free ships make free goods will no doubt become universal. Certain articles of especial use in war are called contraband, and are liable to capture. But the list has been stretched by belligerents especially by England, so as to include naval stores and provisions; and then, to cure the hardship of the rule, another the rule of pre- emption has been introduced. The true doc- trine with regard to contraband seems to be that nothing can be so called unless nations have agreed so to consider it; or, in other words, that articles cannot become occasionally contraband owing to the convenience of a bel- ligerent. An attempt of a neutral ship to enter a block- aded place is a gross violation of neutrality; and, as in cases of contraband trade the goods, so here the guilty vessel, is confiscated. But blockade must exist in fact, and not alone upon paper, must be made known to neutrals, and, if discontinued, must be resumed with a new notification. To carry out the rights of war, the right of search is indispensable ; and such search ought to be submitted to without resistance. Search is exclusively a war right, excepting that ves- sels in peace can be arrested near the coast on suspicion of violating revenue laws, and any- where on suspicion of piracy. The slave-trade not being piracy by the law of nations, vessels of other nations cannot be searched on sus- picion of being engaged in this traffic. And here comes in the question which has agitated the two leading commercial states of Christen- dom: How shall it be known that a vessel is of a nationality which renders search unlaw- ful ? The English claim, and justly, that they have a right to ascertain this Dimple fact by de- tention and examination; the United States contend that if in so doing mistakes are com- mitted, compensation is due, and to this Eng- land has agreed. LAW MERCHANT. See title AGENCY ; BAIL- MENTS; BONDS, NOTES, AND BILLS; CON- TRACTS, etc., ante. LEX FORI. See FORUM LAW OF. LEX Loci. See PLACE LAW OF, PLACE OF SITUATION OF THE THING, below. LEX REI SIT>E. See PLACE OF SITUATION OF THE THING, below. MARITIME LAW. See ADMIRALTY, above. MARTIAL LAW. See MILITARY LAW, below. MEDICAL LAW is that branch of the law which is affected by medical facts, and in which the principles and practice of medicine is required for the elucidation and settlement of doubtful questions arising in the course of judicial proceedings. These questions are embraced in five different classes : they arise : I. From the relations of sex; as, delivery, hermaphroditism, impotency, legitimacy, preg- nancy, rape, sterility. 2. From injuries in- flicted upon the living organization ; as, infan- ticide, poisons, wounds, persons found dead. LAW. 3. From disqualifying diseases; as, different forms of mental alienation or derangement. 4. From deceptive practices ; as, feigned dis- eases. 5. From miscellaneous causes; as, age, identity, life insurance, presumption of senior- ship, and medical evidence. ABORTION is the act of miscarrying or pro- ducing young before the natural time, or before the foetus is perfectly formed. The expulsion of the fcetus during utero-gestation, and before it has acquired the power of sustaining an in- dependent life. The criminal and unnatural means of pro- ducing abortion are of two kinds. General, or those which seek to produce the expulsion through the constitution of the mother, which are cathartics, 1 diuretics, b emetics, ammena- gogues, d and venesection. 6 Local or mechani- cal means, which consist either of external violence applied to the abdomen or loins, or of instruments introduced into the uterus for the purpose of rupturing the membranes, and thus bringing on premature action of the womb. These local or mechanical means not unfrequently produce the death of the mother, as well as that of the foetus. The innocent or natural causes of producing abortion are of two kinds. In the mother, as great debility, disease, excessive venereal in- dulgence, habit of miscarriage, malformation of the pelvis/ plethora,* or irritable or nervous temperament in the fcetus* or its dependencies; usually disease existing in the ovum, 1 the mem- branes, placenta.J or the fcetus itself. See DEATH, below. ACCOUCHMENT is delivery in child-bed; the net of giving birth to a child. When it is necessary to prove the filiation of an individual by the accouchment, it may be proven by the direct testimony of one who was present, as a physician, midwife, or other person. k APOPLEXY AND PARALYSIS imply an affec- tion of the brain; supposed to be only different degrees of the same affection. In apoplexy the patient is suddenly deprived of conscious- ness and sensibility, and so continues for a period varying from a few hours to a few days, when he dies or begins to recover. The recov- ery may, however, be imperfect, leaving some mental impairment, or loss of power in the muscles of voluntary motion, remaining for a time, if not for life. In paralysis there is a loss of power in some of the voluntary muscles those of the arms, eyes, face, or legs ; it may be the sequel of apoplexy, or it may be the primary affection ; occurring very much like an f-Medicines that produce alvine (pertaining to the lower belly or intestines) discharges, or preternatural discharges of the intestines, purges, purgatives, puri- fiers. l>-Medicines that produce discharges of urine, that increase the discharge of, or possess the power to provoke urine. C-Medicines that produce or provoke vomiting by exciting the stomach to discharge its con- tents through the oesophagus (or gullet) and mouth, d- Medicines that produce or promote the menstrual (or monthly) discharge. O-Bleeding, blood-letting. f-A cavity of the body formed by the as coccygis, os sacrum, ."id ossa innontinata. jp-Fulness or excess of blood. , JK sL.ae of the vessels of (he human body when they attack of apoplexy. Apoplexy is the abolition of sense and voluntary motion, from 'suspen- sion of the functions of the cerebrum ; l appar- ent death; suspended animation, as fainting, swooning. Paralysis is an abolition of func- tion, whether of intellect, general or special sensation, sympathetic or voluntary motion. In cases where wills are made in that equivo- cal condition which sometimes follows an at- tack of apoplexy or paralysis, and their validity is contested on the score of mental incompe- tency, there are generally two questions at issue, viz.: I. The absolute amount of mental impairment; and 2. The degree of foreign in- fluence exerted upon the testator. These ques- tions cannot be considered independently of each other; neither of them alone might be sufficient to invalidate an act, while together they might have that effect. In testing the mental capacity of paralytics, reference should be had to the nature of the act in question. The question is, " Had the testa- tor sufficient mental capacity to make the will in dispute ? " and not " Had he sufficient ca- pacity to make a will ? " In order to arrive at correct conclusions on this point, we must re- member, among other things, that the power to appreciate the terms of a proposition must not be confounded with the power to discern its consequences and relations. In testing the mental capacity of one who has lost the power of speech, it is difficult, and often impossible, to arrive at correct results. If the person is able and willing to communi- cate his thoughts in writing, his mental capacity may be clearly revealed. If not disposed to write he may communicate by constructing sen- tences by the help of the alphabet, block letters, or dictionary; failing in this, resort must be had to the expression of assent or dissent by signs to propositions made by others. If the act in question is complicated in its relations, unreasonable in its dispositions, or bears the slightest trace of foreign influence, it will be regarded with suspicion ; for a will thus drawn is not absolutely the will of the testator, since every disposition originated in the minds of others. 1 " ASPHYXY is suspended animation, particu- larly from suffocation or drowning, or the in- spiration of irrespirable gases; a temporary suspension of the motion of the heart and arteries ; cessation of breathing and pulsation ; fainting; swooning. Where the cause of as- phyxy becomes the subject of legal inquiry, it is necessary to ascertain whether the person are too full, or overloaded with fluids. ll-Young in the womb, from the time it is distinctly formed until its birth. Before this distinct formation it is called embryo. i-That body formed by the female, in which, after im- pregnation, the development of the foetus takes place. j-The substance that connects the ovum to the womb, a soft, roundish mass by which the principal connection is maintained between the parent and the foetus. Coxe, Quincy. h-i Bouv. Jnst. n. 314. 1-The front and larger part of the brain. m-Fdr phenomena and legal consequences of paralytic afflictions, see i Paige Ch. 171 ; i Hagg. Eccl. 502, 577 ; 2 Id. 84 ; i Curt. Eccl, 782 ; Parish Will Case, 4 Vols. N. V. 1858. LAW. 5'7 has been deprived of his senses by accident, by his own act, or as the victim of another. See DEATH, below. BARRENNESS. See STERILITY, below. BlRTH is the act of bringing forth a human being, or of its coming into life, of its being wholly born. The conditions of live birth are not satisfied when a part of the body is born ; the whole body must be brought into the world, and detached from that of the mother (but it is not necessary that there should be a separation of the umbilical cord; that may still connect the child with its mother) ; m and after this event the child must be alive." The circula- ting system must also be changed, and the child must have an independent circulation. Breathing, though a usual sign of life, is not conclusive that a child was -wholly born alive, as breathing may take place before the whole delivery of the mother is complete.? Delivery or child-birth; the act of a woman in giving birth to a child. The usual signs of delivery are : If the female be examined within three or four days after the occurrence of delivery, the following circumstances will generally be ob- served : greater or less weakness, a slight pale- ness of the face, the eye a little sunken and surrounded by a purplish or dark-brown col- ored ring, and a whiteness of the skin like that of a person convalescing from disease. The belly is soft, the skin of the abdomen is lax, lies in folds, and is traversed in various directions by shining reddish and whitish lines, which especially extend from the groin and pubes to the navel. These lines have some- times been termed linetz albicantes, and are particularly observed near the umbilical region, where the abdomen has experienced the great- est distension. The breasts become tumid and hard, and, on pressure, emit a fluid, which at first is serous and afterwards gradually becomes whiter; and the presence of this secretion is generally accompanied with a full pulse and soft skin, covered with a moisture of a peculiar and somewhat acid odor. The areolae round the nipples are dark-colored. The external genital organs and vagina are dilated and tumefied throughout the whole of their extent, from the pressure of the foetus. The uterus may be felt through the abdominal parietes, voluminous, firm, and globular, and rising nearly as high as the umbilicus. Its orifice is soft and tumid, and dilated so as to admit two or more fingers. The fourchette, or anterior margin of the perinseum, is sometimes torn, or 't is lax, and appears to have suffered consider- able distension. A discharge (termed the lochial) commences from the uterus, which is distinguished from the menses by its pale color, its peculiar and well-known smell, and its dura- tion. The lochia are at first of a red color, and gradually become lighter until they cease. These signs may generally be relied upon as indicating the state of pregnancy : yet it re- m-;C. & P. 114; 9 Id. 25. n-sC. &P. 329; 7 Id. quires much experience in order not to be de- ceived by appearances. The lochial discharge might be mistaken for menstruation, or fluor albus, were it not for its peculiar smell; and this it has been found im- possible, by any artifice, to destroy. Relaxation of the soft parts arises as fre- quently from menstruation as from delivery; but in these cases the os uteri and vagina are not so much tumefied, nor is there that tender- ness and swelling. The parts are found pale and flabby when all signs of contusion disap- pear afttr delivery; and this circumstance does not follow menstruation. The presence of milk, though a usual sign of delivery, is not always to be relied upon ; for this secretion may take place independent of pregnancy. The wrinkles and relaxation of the abdomen which follow delivery may be the consequence of dropsy, or of lankness following great obe- sity. This state of the parts is also seldom striking after the birth of the first child, as they shortly resume their natural state. Concealed delivery generally takes place when tlie woman either has destroyed her off- spring or it was born dead. In suspected cases the following circumstances should be attended to: I. The proofs of pregnancy which arise in consequence of the examination of the mother. When she has been pregnant, and has been delivered, the usual signs of delivery, men- tioned above, will be present. A careful in- vestigation as to the woman's appearance be- fore and since the delivery will have some weight; though such evidence is not always to be relied upon, as such appearances are not unfrequently deceptive. 2. The proofs of re- cent delivery. 3. The connection between the supposed state of parturition and the state of the child that is found; for if the age of the child do not correspond to that time it will be a strong circumstance in favor of the mother's innocence. A redness of the skin and an at- tachment of the umbilical cord to the navel in- dicate a recent birth. Whether the child was living at its birth, belongs to the subject of in- fanticide, which see below. Pretended delivery may present itself in three points of view. I. When the female who feigns has never been pregnant. When tho- roughly investigated, this may always be de- tected. There are signs which must be pres- ent and cannot be feigned. An enlargement of the orifice of the uterus, and a tumefaction of the organs of generation, should always be present, and if absent are conclusive against the fact.' 2. When the pretended pregnancy and delivery have been preceded by one or more deliveries. In this case attention should be given to the following circumstances : the mystery, if any, which has been affected with regard to the situation of the female ; her age ; that of her husband ; and particularly, whether 814. 0-5 C. &P. 539; 9 Id. 154. p-s C. & P. 329. q- 2 Annales d' Hygiene, 227. LAW. aged or decrepit. 3. When the woman has been actually delivered, and substitutes a living for a dead child. But little evidence can be obtained on this subject from a physical ex- amination. Monsters. (Beings contrary in conforma- tion to the order of nature ; unnatural crea- tions.)' Although born of women in lawful wedlock, cannot inherit. Those who have, however, the essential parts of the human f >rm, and have merely some defect of confor- mation, are capable of inheriting if otherwise qualified.' See DELIVERY, below. No living human birth, however much it may differ from human shape, can be lawfully destroyed. 8 The killing of a child, though joined to its mother by the umbilical cord, is murder.' BRUISES are injuries produced by violence upon the person without breaking the contin- uity of the skin. It is nearly synonymous with contusion." See CONTUSIONS ; WOUNDS, below. COMMON-SENSE is the common association, judgment, and perception in relation to per- sons and things which agrees with that of the generality of mankind. When a particular individual differs from the generality of man- kind or persons in these respects, he is said not to have common sense, or not to be in his senses. T CONTUSIONS are injuries arising from shocks of the body with large surfaces, which presents no loss of substance and no apparent wound. If the skin be divided, the injury takes the name of a contused wound. w See BRUISES, above; WOUNDS, below. DELIRIUM FEBRILE is a mental aberration incident to fevers, and sometimes in the last stages of chronic diseases. The aberration is mostly of a subjective character, maintained by the inward activity of the mind rather than by outward impres- sions. " Regardless of persons or things around him, and scarcely capable of recognizing them when aroused by his attendants, the patient retires within himself, to dwell upon the scenes and events of the past, which pass before it in wild and disorderly array, while the tongue feebly records the varying impressions, in the form of disjointed, incoherent discourse, or of senseless rhapsody." 1 It comes on gradually, being first manifested by talking while asleep, and by a momentary forgetfulness of persons and things on waking. Fully aroused, how- ever, the mind becomes clear and tranquil, and so continues until the return of sleep, when the same incidents recur. Gradually the men- tal disorder becomes more intense, and the intervals between its returns of shorter duration, until they disappear altogether. Occasionally q-2 Dunglinson Hum. Phys. 422. r-2 Bl. Comm. 146; i Beck Med. Jur. 366; Co. Litt. 7, 8 ; Dig. 15, 14: i Swift Syst. 331 ; Fred. Code, Pt. i, Bk. i, i. 4, ? 4. -Traill Med. Jur. 47; see Briand Med. Leg. Pt. i, CK 6, Art. 2, J 3; i Fodere Med. Leg. $402-405. t-7 C. & P. 814; 9 Id. 25; see i Beck Med. Jur. 478; i the past is revived with wonderful viviclnesi and acquirements are displayed which the pa- tient before his illness had entirely forgotten. Instances are related of persons speaking in a. language which, though acquired in youth, had long since passed from their memory. The only acts which can possibly be affected by delirium are wills, which are often made in the last illness during the periods when the mind is apparently clear. Under such cir- cumstances it may be questioned whether the apparent clearness was or was not real ; and it is a question not always easily answered. In the early stages of delirium the mind may be quite clear, no doubt, in the intervals, while it is no less certain that there comes a period at last when no really lucid interval occurs and the mind is reliable at no time. The person may be still, and even answer questions with some degree of pertinence, while a close ex- amination would show the mind to be in a dreamy condition and unable to appreciate any nice relations. In all these cases the question to be met is, whether the delirium which confessedly existed before the act left upon the mind no trace of its influence ; whether the testator, calm, quiet, clear, and coherent as he seemed, was not quite uncon- scious of the nature of the act he was perform- ing. The state of things implied in these questions is not fanciful. In every case it may possibly exist, and the questions must be met. After obtaining all the light which can be thrown on the mental condition of the testator by nurses, servants, and physicians, then the character of the act itself and the circumstances which accompany it require a careful investi- gation. If it should appear that the mind was apparently clear, and that the act was a rational act rationally done, consistent one part wiih another, and in accordance with wishes or instructions previously expressed, and without any appearance of foreign influence, then it would be established. A different state of things would to that extent raise suspicion and throw discredit on the act. Yet at the very best it will occasionally happen, so dubious sometimes are the indications, that the decision will be largely conjectural.' DELIRIUM TREMENS (Mattia-a-potu) is a mental disorder induced by the excessive and prolonged use of intoxicating liquors. It generally appears as a sequel to a few days abstinence. The nature of the connection between this disease and abstinence is not yet clearly under- stood. Where the former succeeds a broken limb, or any other severe accident that confines the patient to his bed and obliges him to ab- stain, it would seem as if its development were Chitty Med. Jur. 438. n-i Ch. Pr. 38 ; see 4 C. & P. 381,487,558,565. v-i Chitty Med. Jur. 334. w-Ste 1 Ch. Pr. 38 ; 4 C. & B. 381, 487, 558, 565 ; 6 Id. 68, ; 2 Beck Med. Jur. 178. at-Ray, Med. Jur. 346. y-i Hagg. Eccl. 146, 256, 502, 577; 2 Id. 142 ; 3 Id. 790; > Lee Eccl. 130; 2 Id. 209. LAW. 5*9 favored by the constitutional disturbance then existing. In other cases, where the abstinence is apparently voluntary, there is some reason to suppose that it is really the incubation of the disease, and not its cause. Its approach is generally indicated by a slight tremor and faltering of the hands and lower extremities, a tremulousness of the voice, a certain restlessness and sense of anxiety which the patient knows not how to describe or account for, disturbed sleep, and impaired appetite. These symptoms having continued two or three days, at the end of which time they have usually increased in severity, the patient ceases to sleep altogether, and soon be- comes delirious at intervals. After a while the delirium becomes constant, as well as the utter absence of sleep. This state of watchful- ness and delirium continues three or four days, when, if the patient recover, it is succeeded by sleep, which at first appears in uneasy and irregular naps, and lastly in long, sound, and refreshing slumbers. When sleep does not supervene about this time, the disease proves fatal. Delirium tremens is marked by some peculiar characters. Almost invariably the patient mani- fests feelings of fear and suspicion, and labors under continual apprehension of being made the victim of sinister designs and practices. He imagines that people have conspired to rob and murder him, and insists that he can hear them in an adjoining room arranging their plans and preparing to rush upon him, or that he is forcibly detained and prevented from going to his own home. One of the most common hallucina- tions in this disease is that of constantly seeing devils, snakes, or vermin around him and on him. Under the influence of the terrors in- spired by these notions, the wretched patient often endeavors to cut his throat, or jump out of the window, or murder his wife, or some one else whom his disordered imagination identifies with his enemies. Delirium tremens must not be confounded with other forms of mental derangement which occur in connection with intemperate habits. Hard drinking may produce a paroxysm of maniacal excitement, or a host of hallucinations and delusions, which disappear after a few days' abstinence from drink and are succeeded by the ordinary mental condition.* For in- stance, a prisoner was defended on the plea that the homicide for which he was indicted was committed in a fit of delirium tremens. There was no doubt that he was laboring under >ome form of insanity ; but the fact, which ap- ]>eared in evidence, that his reason returned before the recurrence of sound sleep, rendered it very doubtful whether the trouble was deli- rium tremens, although in every other respect it looked like that disease. Delirium tremens annuls responsibility for any act that may be committed under its z-i Curt. C. C. i. a-i Curt C. C. i ; 5 Mas. C. C. tt ; State vs. Wilson, Ray Med. Jur. 520, J-Reg. vs. influence ; provided, of course, that the mental condition can stand the tests applied in other forms of insanity. The law does not look to the remote causes of the mental affection ; and the rule on this point is that if the act is not committed under the immediate influence of intoxicating drinks, the plea of insanity is not invalidated by the fact that it is the result of drinking at some previous time. Such drink- ing may be morally wrong ; but the same may be said of other vicious indulgences which give rise to much of the insanity which exists in the world.' It was held that delirium tremens was not a valid defence, because the prisoner knew, by repeated experience, that indulgence in drink- ing would probably bring on an attack of the disease. It is not quite certain what the rule of law is in England. Two cases are cited where the plea of delirium tremens was admitted in ex- cuse for crime. b DEATH is the total and permanent cessation of all the vital functions; when all the organs have not only ceased to act, but have lost their susceptibility of renewed action. Actual death is distinguished from apparent death by several signs, some more conclusive than the others, i. Cessation of the circulation. 2: Cessation of the respiration. 3. The fades Hippocratii wrinkled brow, hollow eyes, pointed nose, hollow, wrinkled temples, elevned ears, re- laxed lips, sunken cheek bones, and wrinkled and pointed chin. 4. Collapsed and softened state of the eye. 5. Pallor and loss of elasti- city of the skin. 6. Insensibility and im- movability. 7. Extinction of muscular irrita- bility. 8. Extinction of animal heat. 9. Muscular rigidity; and 10. The supervening of putrefaction, which depends something upon age, sex, condition of the body, and cause of death; also upon period, place, and n>ode of interment. The process is increased by a high temperature, moisture, and access to air* Various indications as to whether the *irath is the act of God or the result of violence may be gathered from the position and circum- stances in which the body is found, and the condition of the place where the body is found. i. Whether it be a case of homicide, suicide, or visitation of God ; and, 2. Whether, if one of homicide, the murder occurred there, or some other place, the body having been brought there and left. The points to be noted are whether the ground appears to have been dis- turbed from its natural condition ; whether there are any, and what, indications of a strug- gle ; whether there are any marks of footsteps, and, if any, their size, number, the direction to which they lead, and whence they came; whether any traces of blood or hair can be found; and whether any, or what, instruments or weapons, which could have caused death, Watson, and Reg. vs. Simpson, Taylor Med. Jur. 65*. C-Pale, sunken, and contracted features. The explain*- tion. more minutely follows the phrase above. 5 20 LAW. are found in the vicinity; and all such instru- ments should be carefully preserved, so that they may be identified.* As thorough an examination as possible should be made of the body before changing its position, or that of any of the limbs, or varying in any respect its relations with sur- rounding bodies. So, also, of the wounds, if any, in order from their nature, character, form, and appearance, to determine the instrument by which they were inflicted, and also their agency in causing the death, the direction from which they were dealt, their extent, depth, vessels severed, etc. So, also, of the clothes worn by the deceased, and any parts torn, or presenting any unusual appearance. A memo- randum should be made of the color of the skin, the temperature of the body, the existence and extent of cadaveric rigidity of the muscular sys- tem, the state of the eyes and sphincter muscles, noting at the same time whatever swellings, ecchymosis, or livid, black, or yellow spots, wounds, ulcers, contusions, fractures, or luxa- tion may be present. The fluids which have exuded from the nose, mouth, ears, sexual or- gans, etc., should be carefully noted ; and when the deceased is a female, it will be proper to examine the sexual organs with care, with a view of ascertaining whether before death the crime of rape had or had not been committed. The amount of decomposition should also be noted, with a view of determining when the death took place. Evidences of Death by Violence. This in- volves the inquiry as to the cause of death in all cases of the finding of bodies divested of life through unknown agencies. It seeks to gather all the evidence furnished by the body and surrounding circumstances bearing upon this difficult, and, at best, doubtful subject ; it more immediately concerns the duties of the coroner; but is liable to come up subsequently for a more thorough and searching investiga- tion. Hence, its briefness here needs no com- ment. The first point for determination is, whether the death was the act of God, or the result of violence. Sudden death is generally produced by a powerful invasion of the living forces that develop themselves in the heart, brain, or lungs ; the first is called 4 syncope, the second, apo- plexy/ and the third, asphyxia.* The two last are the most important to be understood in con- nection with the subject of persons found dead. In death from apoplexy, the sudden invasion of the brain destroys innervation, by which the circulation is arrested, each side of the heart containing its due proportion of blood, and the cavities are all distended from loss of power to propel its contents. Death by apoplexy is dis- clwsed by a certain apopletic make, or form of c-Dean Med. Jur. 257 ; Beck Med Jur. 107, n. 136, 520. -Russ. Cr. 8. q-See 5 Gray, 86 ; ii Cush. This affection is often periodical, the paroxysms recurring at periods varying from three months to several years. Sometimes the indulgence is more continuous and limited, sufficient, how- ever, to derange the mind, without producing sickness, and equally beyond control. Dipso- mania may result from moral causes, such as anxiety, disappointment, grief, sense of respon- sibility ; or physical, consisting chiefly of some anomalous condition of the stomach.* The common law shows but little disposition to afford relief, either in civil or criminal cases, from the immediate effects of drunkenness. It has never considered drunkenness alone as a sufficient reason for invalidating any act. When carried so far as to deprive the party of all consciousness, strong presumption of fraud is ' raised ; and on that ground courts may inter- fere. 1 Drunkenness in such a degree as to render the testator unconscious of what he is about, or less capable of resisting the influence of others, avoids a will. In action for torts, drunkenness is not regarded as a reason for mitigating damages." And courts of equity decline to interfere in favor of parties pleading intoxication in the performance of a civil act.* The law does, however, recognize two kinds of inculpable drunkenness, viz. : that which is produced by the "unskilfulness of his physi- cian," and that which is produced by the " contrivance of enemies. "P To this may be added cases where a party drinks no more liquor than he has habitually used without being intoxicated, and which exerts an unusu- ally potent effect on the brain in consequence of certain pathological conditions.' ECCHYMOSJS. See DEATH, above. EMISSION is the act of sending out or throw- ing from the body any matter whatever, as the emission of urine, emission of semen, etc. Emission is not necessary in the commission of a rape to complete the offence/ It is, however, essential in the offence of sodomy. 1 EMMENAGOGUES. See ABORTION, above, ENCIENTE. See PREGNANCY, above. EPILEPSY is the falling sickness; so called because the patient falls suddenly to the ground ; it is a disease characterized by gen eral muscular agitation occasioned by clonic spasms (that is, spasms in which the muscles, or muscular fibres, contract and relax alter- nately in quick succession, producing the ap- pearance of agitation without sensation or consciousness, and commonly recurring at in- tervals.) When long continued and violent, this disease is very apt to end in dementia. It gradually destroys the memory, and impairs the intellect, and is one of the causes of an unsound mind.* FCETICIDE is the act by which a criminal abortion is produced." 479 ; i Bennett & H. L. Cr/Cas. 113-124. r-i Hale PI. Cr. ; 4C.&P. 249; 5 Id.' 297; 4 C. & P. 249; 5 Id. 297 ; 6 Id. 251 ; 9 Id. 31 ; see i East. PI. Cr. 346-440. 8-12 Co. 36; but see i Va. Cas. 307. t-8 Ves. Ch. 87; see Dig. 50, 16, 123; 21, i, 4, 5. u-Beck. Med. }w 288; Grey Med. Jur. ijj. LAW. FCETUS is the human being from the time its parts are distinctly formed until its birth ; an unborn child ; an infant in its mother's womb. Until about the middle of the fourth month it is called embryo. At that time the develop- ment of the principal organs begins to be evident and they present something of their mature form. Although it is often important to know the age of the foetus, there is great difficulty in ascertaining the fact with the precision required in courts of law. Nothing on this subject can be learned solely from its weight, size, or pro- gress towards maturity. The great difference between children at birth, as regards their weight and size, is an indication of their condition while within the womb, and is a sufficient evidence that nothing can be de- cided as to the age of the foetus by its weight and size at different periods of its existence. Thousands of healthy infants have been weighed immediately after birth, and the ex- tremes have been found to be two and eighteen pounds. It is very rare indeed to find any weighing as little as two pounds, but by no means uncommon to find them weighing four pounds. So it is with the length, which varies as much as that of the adult does from the average height of the race. Neither can anything positive be learned from the progress of development; for although the condition of the bones, cartilages, and other parts will generally mark with tolerable accur- acy the age of a healthy foetus, yet an uncer- tainty will arise when it is found to be unhealthy. It has been clearly proved, by numerous dis- sections of new-born children, that the foetus is subject to diseases which interfere with the proper formation of parts, exhibiting traces of previous departure from health, which had interfered with the proper formation of parts and arrested the process of development. Interesting as the different periods of develop- ment may be to the philosophical inquirer, they cannot be of much value in legal inquiries, from their extreme uncertainty in denoting precisely the age of the foetus by unerring conditions. GESTATION is the period during which a woman carries young in her womb, from con- ception to delivery; it is pregnancy. This directly involves the question of the duration of pregnancy, questions concerning which most frequently occur in cases of contested legiti- macy. That which is termed the usual period of pregnancy is ten lunar months, forty weeks, two hundred and eighty days, equal to about nine calendar months and one week. One question that has here been much discussed is whether the period of gestation has a fixed limit, or is capable of being contracted or pro- rracted beyond the usual term. Many have claimed that the laws of nature on this subject are immutable, and that the foetus, at a fixed period, has received all the nourishment of T-Montgpmery Preg. 264. w-Coke Litt. 123 b. x- 3 Brown Ch. 349 ; Gardner Peerage case, Le Marchant which it is susceptible from the mother, and becomes as it were a foreign body. Its expul- sion is, therefore, a physical necessity. Others claim, and with stronger reasons, that as al] the functions of the human body that have been carefully observed are variable, and sometimes within wide limits, and as many observations and experiments in reference to the cow and horse have established the fact that in the period of utero-gestation there is more varia- tion with them than in the human species, there should remain no doubt that this period in the latter is always liable to variation. There are some women to whom it is peculiar always to have the normal time of delivery anticipated by two or three weeks, so that they never go beyond the end of the thirty-seventh or thirty- eighth week, for several pregnancies in succes- sion. r So, also, there are many cases estab- lishing the fact that the usual period is some- times exceeded by one, two, or more weeks, the limits of which it is difficult or impossible to determine. Lord Coke seems inclined to adopt a peremptory rule that forty weeks is the longest time allowed by law for gestation.* But although the law of some countries pre- scribes the time from conception within which the child must be born to be legitimate, that of England and America fixes no precise limit, but admits the possibility of the birth's occur- ring previous or subsequent to the usual time. The following are cases in which this question will be found discussed. 1 See BIRTH, above; PREGNANCY, below. GOUT is an inflammation of the fibrous and ligamentous parts of the joints; it is a chronic disease occurring by paroxysms ; the parox- ysms exacerbating (increasing its violence) and remitting. It consists essentially in a perfectly specific and topical (local) inflammation, hav- ing its regular seat in the largest joint of the great toe; and an equally specific and peculiar constitutional febrile (fever) affection. The forms of this disease are very irregular, numer- ous, and various. In cases of insurance on lives, when there is warranty of death, a man subject to gout is capable of being insured, if he has no sickness at the time to make it an unequal contract.^ HALLUCINATION is the faulty sense of errone- ous imagination. Hallucinations of the senses arise from some defect in the organs of sense, or from some unusual circumstances attending the object; They are sometimes symptoms of general disease, as in fevers. Maniacal hallu- cinations arise from some imaginary or mistaken idea; similar hallucinations occur in revery. This state of the mind is sometimes called delu- sion, or waking dreams. An attempt has been made to distinguish hallucinations from illu- sions ; the former are said to be dependent upon the state of the intellectual organs, and the lat- ter on that of sense. 1 An instance is given Report ; Croke Jac. 686 : 7 Hazard, Register of Penn- sylvania, ^63. y-2 Park. Ins. 583. z-Ray Mad. Jur. \ 99 ; i Beck Med. Jur. 538. 5*4 LAW. of a temporary hallucination of Ben Jonson. He told a friend that he had spent many a night in looking at his great toe, about which he h^ad seen Turks and Tartars, Romans and Carthage- nians, fight in his imagination.* This example is unfair both to Jonson and the reader, for it seems tortured out of merely casual remarks of this eminent poet. If, instead of being tempo- rary, this affection is permanent, then it may be considered insanity. HERMAPHRODITES are human beings who have in appearance the sexual organs of both sexes, having the parts of generation of both male and female. Hermaphrodites are ad- judged to belong to that sex which prevails in them. b The several characteristics of the human species are widely separated, and the two sexes arc never, perhaps, united in the same indi- vidual.' Cases of malformation, however, sometimes are found, in which it is very diffi- cult to decide to which sex the person belongs. 3 HUNGER. See DEATH FROM, above. IDIOCY is a natural defect of the understand- ing; a form of insanity resulting either from congenital (natural) defect or some obstacle to the development of the faculties in infancy. It always implies some defect or disease of the brain, which is generally smaller than the standard size and irregular in its shape and proportions. Occasionally the head is unnat- urally large, being distended by water. The senses are very imperfect at best, and one or more are often entirely wanting. None can articulate more than a few words ; while many utter only cries or muttered sounds. Some make known their wants by signs or sounds which are intelligible to those who have charge of them. The head, the features, the expres- sion, the movements, all convey the idea of extreme mental deficiency. The reflective fac- ulties are entirely wanting, whereby they are utterly incapable of any effort of reasoning. The perceptive faculties exist in a very limited degree, and hence they are rendered capable of being improved somewhat by education, and redeemed, in some measure, from their brutish condition. They have been led into habits of propriety and decency, have been taught some of the elements of learning, and have learned some of the coarser industrial occupations. The moral sentiments, such as self-esteem, love of approbation, veneration, benevolence, are not unfrequently manifested; while some pro- pensities, such as cunning, destructiveness, sexual impulse, are particularly active. In some parts of Europe a form of idiocy prevails endemically (in a manner peculiar to a people or nation), called cretinism. It is associated with disease or defective develop- ment of other organs besides the head. Cretins are short in stature, their limbs are attenuated, the belly tumid, the neck thick. The muscular I-T Oliver Lun. 34. to-Co. Litt. 2, 7 : Domat Lois. Civ. Liv. i,l. 2, ? i, n. o. c-2 Dunglinson HU-M. Phvsiol. 504; j Beck Med. Jur. 94-1 TO. d-See 2 Med. Ex-m. jt4 : i Briand Med. Leg. Ch. 2, Art. 2, f> 2, n. 2 ; Grey Med. Jur. 42, 47; i Beck Med. Jur. (n Ed.) 164, et system is feeble, and their voluntary movements restrained and undecided. The power of lan- guage is very imperfect, if not entirely wanting. In the least degraded forms of this disease, the perceptive powers may be somewhat developed, and the individual may evince some talent at music or construction. In Switzerland they make parts of watches. Unlike idiocy, cretin- ism is not congenital, but is gradually devel- oped in the early years of childhood. It is owing chiefly to atmospherical causes, and is transmitted from one generation to another. Both idiocy and cretinism exhibit various de- grees of mental deficiency, but they never ap- proximate to any description of men supposed to be rational, nor can any amount of education efface the chasm which separates them from their better-endowed fellow-men. The older law-writers, whose observation of mental mani- festations was not very profound, thought it necessary to have some test of idiocy ; and accordingly Fitzherbert says, " If he have sufficient understanding to know and under- stand his letters, and to read by teaching or in- formation, he is not an idiot." 8 Again, he says, "A man is not an idiot if he hath any glimmer- ing of reason, so that he can tell his parents his age, or the like common matters." The inference was, no doubt, that such a man is re- sponsible for his criminal acts. At the present day such an idea would not be entertained for a moment, nor are we aware of any case on record of an idiot suffering capital punishment. Of course, they are totally incapable of any civil acts; but in this country in some of the States, at least they would not be debarred from exercising the right of suffrage. See IN- SANITY, below. ILLUSION is deceptive appearance ; it is a species of mania, in which the sensibility of the nervous system is altered, excited, per- verted, or weakened. The patient is deceived by the false appearance of things, and his reason is not sufficiently active and powerful to correct the error; and this last particular n what distinguishes the sane from the insane. Illusions are not unfrequent in a state of health, but reason corrects the errors and dissipates them. A square tower, seen from a distance, may appear round, but on approaching it the error is corrected. A distant mountain may be taken for a cloud, but as we approach we discover the truth. To a person in the cabin of a vessel under sail, the shore appears to move ; but reflection and a closer examination soon destroy this illusion. An insane indi- vidual is mistaken on the qualities, connections, and causes of the impressions he actually re- ceives, and he forms wrong judgments as to his internal and external sensations ; and his reason does not correct the error/ See HAL- LUCINATION, above. teg. : Wharton fc. S. Med. J"r. (?A Ed.) 408, rt seq. e-Xatiira Erevium. 583. f-i Beck. Med Jur. 538: Es- quirol Maladies Mentales. pn'm. partie, lii, tome I, p. 20? ; Diet. des. Sciences Mcdicales, Hallucination, tome 20, p. 64. LAW. 525 IMBECILITY is weakness ; want of strength ; feebleness of body and mind; not possessing the vigor that usually belongs to men, and which is necessary to the due performance of the functions of the body and intellect. It may be natural, or induced by violence or disease. It may be congenital (natural) or resulting from an obstacle to the development of the faculties, supervening in infancy. Generally, it is manifested both in the intel- lectual and moral faculties; but occasionally it is limited to the latter, the former being but little, if at all, below the ordinary standard. Hence it is distinguished into intellectual and moral. In the former there are seldom any of the repulsive features of idiocy, the head, face, limbs, movements, being scarcely distinguish- able, at first sight, from those of the race at large. The senses are not manifestly deficient, nor the power of articulation ; though the use of language may be very limited. The per- ceptive faculties exhibit some activity; and thus the more obvious qualities of things are observed and remembered. Simple industrial operations are well performed, and, generally, whatever requires but little intelligence is readily accomplished. Occasionally a solitary faculty is prominently, even wonderfully devel- oped, the person excelling, for instance, in music, in arithmetical calculations, or me- chanical skill, far beyond the ordinary measure. For any process of reasoning, or any general observation or abstract ideas, imbeciles are totally incompetent. Of law, justice, morality, property, they have but a very imperfect notion. Some of the affective faculties are usually ac- tive, particularly those which lead to evil habits, thieving, incendiarism, drunkenness, homicide, assaults on women. The kind of mental defect here mentioned is universal in imbecility, but it exists in dif- ferent degrees in different individuals, some being hardly distinguishable, at first sight, from ordinary men of feeble endowments, while others encroach upon the line which separates them from idiocy. The various grades of imbecility, however interesting in a philosophical point of view, are not very closely considered by courts. They are governed in criminal cases solely by their tests of responsibility, and in civil cases by the amount of capacity, in connection with the act in question, or the abstract question of soundness or unsoundness. Touching the question of responsibility, the law makes no distinction between imbecility and insanity.* In civil cases, the effect of imbecility is dif- ferently estimated. In cases involving the validity of the contracts of imbecile persons, courts have declined to gauge the measure of their intellects, the only question with them being one of soundness or unsoundness, and a-See i Carr. & K. 129. b-4 Dane Abr. 561 ; see 4 Cow. N. Y. 207. c-i Story Eq. Jur. g 238. d-Chitty Coatr. us ; Story Contr. g 27; 4 Exch. 17. e-i Hagg. " no distinction being made between important and common affairs, large or small property."" Courts of equity, also, have declined to in- validate the contracts of imbeciles, except on the ground of fraud. Of late years, however, courts have been governed by other considera- tions. If the contract were for necessaries, or showed no mark of fraud or unfair advantage, or if the other party, acting in good faith and ignorant of the other's mental infirmity, can- not be put into statu quo, the contract is valid.* The same principles have governed the courts in cases involving the validity of the marriage contract. If suitable to the condition and circumstances of the party, and manifestly tending to his benefit, it has been confirmed, notwithstanding a considerable degree of in- competency. If, on the other hand, it has been procured by improper influences, mani- festly for the advantage of the other party, it has been invalidated.' The law has always showed more favor to the wills of imbeciles than to their contracts. " If a man be of a mean understanding, neither of the wise sort nor of the foolish, but indifferent, as it were, betwixt a wise man and a fool yea, though he rather incline to the foolish sort, so that for his dull capacity he might worthily be called gros- sum caput (a dull pate), or a dunce such a one is not prohibited to make a testament."' Whether the testament be established or not, depends upon the circumstances of the case; and the English ecclesiastical courts have always assumed a great deal of liberty in their construction of these circumstances. The gen- eral principle is that if the will exhibits a wise and prudent disposition of property, and is un- questionably the will of the testator, and not another's, it should be established in the face of no inconsiderable deficiency. 1 Very differ- ent views prevailed in a celebrated case in New York.* The mental capacity must be equal to the act; and if that fact be established, and no unfair advantage have been taken of the men- tal deficiency, the will, the marriage, the con- tract, or whatever it may be, is held to be valid. The term moral imbecility is applied to a class of persons who, without any considerable, or even appreciable, deficiency of intellect, seem to have never been endowed with the higher moral sentiments. They are unable to appreciate fully the distinctions of right and wrong, and, according to their several oppor- tunities and tastes, they indulge in mischief as if by an instinct of their nature. To vice and crime they have an irresistible proclivity, though able to discourse on the beauties of virtue and the claims of moral obligation. While young, many of them manifest a cruel and quarrelsome disposition, which leads them to torture brutes and bully their companions. They set all law and admonition at defiance, and become a pest and a terror to the neighborhood. It is worthy of notice, because the fact throws much light 355; Ray Med. Jur. too. x -Swinburne. Wills, Pact*. . 4. f-i Hags- 384. |f-26 Wend. N. Y. 256. LAW. on the nature of this condition, that a very large proportion of this class of persons labor under some organic defect. They are scrofu- lous, rickety, or epileptic, or, if not obviously Buffering from these diseases themselves, they are born of parents who did. Their progeni- tors may have been insane, or eccentric, or highly nervous, and this morbid peculiarity has become, unquestionably, by hereditary trans- mission, the efficient cause of the moral defect under consideration. Thus lamentably consti- tuted, wanting in one of the essential elements of moral responsibility, they are certainly hot fit objects of punishment ; for though they may recognize the distinctions of right and wrong in the abstract, yet they have been denied by nature those faculties which prompt men more happily endowed to pursue the one and avoid the other. In practice, however, they have been regarded with no favor by the courts. 11 See INSANITY, below. IMPOTENCE is the incapacity for copulation or for propagating the species. It differs from sterility, though these terms have been used synonymously. Impotence may be considered .is accidental or temporary, curable or incur- able. Absolute or incurable impotence is that for which there is no known relief, principally originating in some malformation or defect of the genital organs. Where this defect existed at the time of marriage and was incurable, by the ecclesiastical law and the law of many of the States, the marriage may be declared void from the beginning. 1 But the party naturally impotent cannot allege that fact for the purpose of obtaining a divorced INFANTICIDE is the murder of a new-born infant. It is distinguished from abortion and fceticide, which is the destruction of life while .n the mother's womb. The criminal modes most commonly resorted to to destroy the life of an infant are : I, suffocation; 2, drowning; 3, cold and exposure; 4, starvation; 5. wounds, fractures, and injuries of various kinds; a mode not unfrequently resorted to is the intro- duction of sharp-pointed instruments in differ- ent parts of the body ; also, luxation and frac- ture of the neck, accomplished by forcibly twisting the head of the child, or pulling it backwards; 6, strangulation ; 7, poisoning ; 8, intentional neglect to tie the umbilical cord; and, 9, causing the child to inhale air deprived of its oxygen, ">r gases positively deleterious. All these jncdes of destroying life, together with thi natural or accidental ones, will be found fully discoursed by the writers on medi- cal jurisprudence.* Birth. The crime of infanticide can be com- mitted only after the child is wholly born. 1 This question involves an inquiry : I. Into the signs of maturity, the data for which are, the length and weight of the fcetus, the relative position ll-Ray Med. Jur. 112-130. i-Com. Dig. Baronfy 1 F, (C. 3) : Bac. Abr. Marriage, etc. (E. 3) ; i Bl. Comm. 440 ; i Beck. Med. Jur. 67 ; Code, 5, 17, 10 ; Paynter Jfcrr. & D. Ch. 8 ; 5 Paige Ch. 554 ; Merlin Rep. /;- fuiisance. J-3 Phil. Keel. 147; i Eng. Keel. 384. k- of the centre of its body, the proportional de- velopment of its several parts as compared with each other, especially of the head as com- pared with the rest of the body, the degree of growth of the hair and nails, the condition of the skin, the presence or absence of the mem- brana pupillaris, and, in the male, the descent or non-descent of the testicle.s. m Life, etc. 2. Was it born alive ? This second point presents an inquiry of great interest both to the legal and medical professions and to the community at large. In the absence of all di- rect proof, what organic facts proclaim the ex- istence of life subsequent to birth ? These facts are derived principally from the circula- tory and respiratory systems. From the former the proofs are gathered from the character of the blood, that which is purely fretal being wholly dark, like venous blood, destitute of fibrous matter, and forming coagula much less firm and solid than that which has been sub- jected to the process of respiration ; so, also, the coloring-matter is darker, and contains no phosphoric acid, and its proportion of serum and red globules is comparatively small. From the condition of the heart and bloodvessels. The circulation anterior and subsequent to birth must necessarily be entirely different. That anterior, by means of the foetal openings the foramen fvale, the ductus arteriosus, and the ductus venosus is enabled to perform its cir- cuit without sending the entire mass of the blood to the lungs for the purpose of oxygena- tion. When the extra-uterine life commences, and the double circulation is established, these openings gradually close ; so that their closure is considered clear evidence of life subsequent to birth." From the difference in the distribu- tion of the blood in the different organs of the body. The two organs in which this difference is most perceptible are the liver and the lungs especially the latter. The circulation of the whole mass of the blood through the lungs dis- tends and fills them with blood, so that their relative weight will be nearly doubled, and any incision into them will be followed by a free effusion. From the respiratory system proofs of life subsequent to birth are derived. From the thorax. Its size, capacity, and arch are in- creased by respiration. From the lungs. They are increased in size and volume, are projected forward, become rounded and obtuse, of a pinkish-red hue, and their density is inversely as their volume. The fact of the specific grav- ity of the lungs being diminished in proportion to their diminution in density gives rise to a celebrated test the hydrostatic the relative weight of the lungs with water.? The rule is, that lungs which have not respired are specific- ally heavier than water, and if placed within it i Beck Med. Jur. 509, et seq. ; Dean Med. TUT. 179, et seq. ; Ryan Med. Jur. 137; Dr. Cummins, Proof of In- fanticide Considered. 1-5 Crr. & P. 329; 6 Id. 349. Ill-Dean Med. Jur. 140. n-i Beck Med. Jur. 478, et seg.; Dean Med. Jur. 142, et seq. O- Dean Med. Jur. 149, et seg. p-i Beck Med. Jur. 459, et seg. LAW. 527 will sink to the bottom of the vessel. If they have respired, their increase in volume and de- crease in density render them specifically lighter than water, and when placed wilhin it they will float. There are several objections to the sufficiency of this test; but it is fairly entitled to its due weight in the settlement of this ques- tion.< from the state of the diaphragm. Prior to respiration it is found high up in the thorax. The act of expanding the lungs enlarges and arches the thorax, and, by necessary conse- quence, the diaphragm descends. The fact of life at birth being established, the next inquiry is, how long did the child sur- vive ? The proofs here are derived from three sources. The foetal openings, their partial or complete closure. The more perfect the closure, the longer the time. The series of changes in the umbilical cord. These are: I. The wither- ing of the cord. 2. Its desiccation or drying. 3. Its separation or dropping off occurring usually four or five days after birth. 4. Cica- trization of the umbilicus occurring usually from ten to twelve days after birth. The changes in the skin, consisting in the process of exfoliation of the epidermis, which commences on the abdomen, and extends thence succes- sively to the chest, groin, axillae, interscapular space, limbs, and, finally, to the hands and feet. INSANITY is unsoundness of the mind ; de- rangement of the intellect; it is any degree of mental derangement, from a slight degree of wandering to distraction. This term is rarely used to express slight temporary de- lirium. Of late years this word has been used to designate all mental impairments and deficiencies formerly embraced in the terms lunacy, idiocy, and unsoundness of mind. Even to the middle of the last century the law recognized only two classes of persons requir- ing its protection on the score of mental dis- order, viz. : lunatics and idiots. The former were supposed to embrace all who had lost the reason which they once possessed, and their disorder was called dementia accidentalis ; the latter, those who had never possessed any reason, and this deficiency was called dementia naht- ralis. Lunatics were supposed to be much in- fluenced by the moon; and another prevalent notion respecting them was that in a very large proportion there occurred lucid intervals, when reason shone out, for a while, from be- hind the cloud that obscured it, with its natural brightness. It may be remarked, in passing, that lucid intervals are far less common than they were once supposed to be, and that the restoration is not so complete as the descrip- tions of the older writers would lead us to infer. In modern practice, the term lucid interval signifies merely a remission of the disease, an abatement of the violence of the morbid action, a period of comparative calm.; and the proof of its occurrence is generally drawn from the character of the act in question. It is hardly necessary to say that this is an unjustifiable use of the term, which should be confined to the 34 genuine lucid interval that does occasionally occur. It began to be found at last that a large class of persons required the protection of the law, who were not idiots, because they had reason once, nor lunatics in the ordinary signi- fication of the term, because they were not violent, exhibited no very notable derange- ment of reason, were independent of lunar in- fluences, and had no lucid intervals. Their mental impairment consisted in a loss of in- tellectual power, of interest in their usual pur- suits, of the ability to comprehend their rela- tions to persons and things. A new term unsoundness of mind was, therefore, intro- duced to meet this exigency ; but it has never been very clearly defined. The law has never held that all lunatics and idiots are absolved from all responsibility for their civil or criminal acts. This consequence was attributed only to the severest grades of these affections, to lunatics who have no more understanding than a brute, and to idiots who cannot number twenty pence nor tell how old they are. Theoretically the law has changed but little, even to the present day; but practi- cally it exhibits considerable improvement : that- is, while the general doctrine remains un- changed, it is qualified, in one way or another, by the courts, so as to produce less practical injustice. Insanity implies the presence of disease or congenital defect in the brain, and though it may be accompanied by disease in other or- gans, yet the cerebral affection is always sup- posed to be primary and predominant. It is to be borne in mind, however, that bodily diseases may be accompanied, in some stage of theif progress, by mental disorder which may affect the legal relations of the patient. For all practical purposes, however, a defi- nition is unnecessary, because the real question at issue always is, not what constitutes insanity in general, but wherein consists the insan- ity of this or that individual. Neither sanity nor insanity can be regarded as an entity to be Handled and described, but rather as a condition to be considered in reference toother conditions. Men vary in the character of their mental manifestations, insomuch that conduct and conversation perfectly proper and natural in one might in another, differently constituted, be indicative of insanity. In de- termining, therefore, the mental condition of a person, he must not be judged by any arbitrary standard of sanity or insanity, nor compared with other persons unquestionably sane or in-, sane. He can properly be compared only with himself. When a person, without any ade- quate cause, adopts notions he once regarded as absurd, or indulges in conduct opposed to all his former habits and principles, or changes completely his ordinary temper, manners, and dispositions the man of plain practical sense indulging in speculative theories and projects, the miser becoming a spendthrift and the q-Dean Med. Jur. 154, et ttf. 528 LAW. spendthrift a miser ; the staid, quiet, unobtru- sive citizen becoming noisy, restless, and bois- terous ; the gay and joyous becoming dull and disconsolate even to the verge of despair; the careful, cautious man of business plunging into hazardous schemes of speculation ; the discreet and pious becoming shamefully reckless and profligate no stronger proof of insanity can be had. And yet not one of these traits, in and by itself alone, disconnected from the natural trails of character, could be regarded as con- clusive proof of insanity. In accordance with this fact, the principle has been laid down, with the sanction of the highest legal and medical authority, that it is the prolonged de- parture, without any adequate cause, from the states of feeling and modes of thinking usual to the individual when in health, which is the essential feature of insanity/ Insanity in some of its forms annuls all criminal responsibility, for there can be no crime nor offence if the accused were in a state of madness at the time of the act, 1 and in other forms disqualifies its subject from the performance of certain civil rights. A kind and degree of insanity which will not excuse a person for a criminal act may render him legally incompetent to the management of himself or his affairs. 8 LUCID INTERVALS are those intervals bright with the natural radiance of intellect, not dark- ened or confused by delirium or madness ; those intervals marked by the natural and regular operations of reason. It must not be a super- ficial tranquillity, a shadow of repose, but, on the contrary, a profound tranquillity, a real repose. " It must not be a mere ray of reason, which makes its absence more apparent when it is gone not a flash of lightning, which pierces through the darkness only to render it more gloomy and dismal not a glimmering which joins the night to the day, but a per- fect' light, a lively and continued lustre, a full and entire day interposed between the two separate nights of the fury which precedes and follows.it; and, to use another image, it is not a deceitful and faithless stillness which follows or forebodes a storm, but a sure and steadfast tranquillity for a time, a real calm, a perfect serenity. In fine, without looking for so many metaphors to represent our idea, it must not be a mere diminution, a remission of the com- plaint, but a kind of temporary cure, an inter- mission so clearly marked as in every respect to resemble the restoration of health."' So Lord Thurlow says, by a perfect interval, " I do not mean a cooler moment, an abatement of pain or violence, or of a higher state of torture, a mind relieved from excessive pres- sure ; but an interval in which the mind, hav- ing thrown off the disease, had recovered its general habit." 11 That there sometimes occurs an intermission in which the person appears to r-Gooch, Lend. Quart. Rev. xliii. 355 ; Combe Ment. Uerang. 196; Meidway vs. Croft, 3 Curt. Eccl. 671. x- Code Fr. Art. 64. 8-Bellinghan's Case, Collinson, 657. t-Pothiw, Obi. Evans ed. 579. 11-3 Brown Ch. 234. v- be perfectly rational, restored, in fact, to hi proper stlf, is an unquestionable fact. It is equally true that they are of rare occurrence, that they continue but for a very brief period, and that with the apparent clearness there is real loss of mental force and acuteness. In most cases of insanity there may be observed, from time to time, a remission of the symp- toms, in which excitement and violence are replaced by quiet and calm, and, within a certain range, the patient converses correctly and properly. A superficial observer might be able to detect no trace of disease; but a little further examination would show a confusion of ideas and singularity of behavior, indicative of serious, though latent, disease. In this condition the patient may hold some correct notions, even on a matter of business, and yet be quite incompetent to embrace all the rela- tions connected with a contract or a will, even though no delusion were present to warp his judgment. The revelations of patients after recovery furnish indubitable proof that during this remission of the symptoms the mind is in a state of confusion utterly unreliable for any business purpose.' Of late years whatever may have been the earlier practice courts have not required that proof of a lucid interval which consists of complete restoration of reason, as described above. They have been satisfied with such proof as was furnished by the transaction in question. They cared less to consider the gen- eral state of mind than its special manifesta- tions on a particular occasion. " The strongest and best proof that can arise as to a lucid in- terval is that which arises from the act itself; "if that "is a rational act, rationally done, the whole case is proved ;" w "if she could con- verse rationally, that is a lucid interval."* This is a mere begging of the question, which is whether the act so rational and so rationally done and not for that reason necessarily in- compatible with insanity was or was not done in a lucid interval. Persons very insane, vio- lent, and full of delusions frequently do and say things evincing no mark of disease, while no one supposes that there is any lucid interval in the case. " It is clear that persons essen- tially insane may be calm, may do acts, hold conversations, and even pass in general society, as perfectly sane. It often requires close ex- amination by persons skilled in the disorder, to discover and ascertain whether or not the men- tal derangement is removed and the mind be- come again perfectly sound. Where there is calmness, where there is rationality on ordinary subjects, those who see the party usually con- clude that his recovery is perfect. . . . When there is not actual recovery, and a return to the management of himself and his concerns by the unfortunate individual, the proof of a lucid interval is extremely difficult."' Georget Des Mai. Men. 46 ; Reid, 'Essays on Hypochon- driacal Affections, 21 Essay ; Combe Men. Derang. 241 ; Ray Med. Jur. 376. W-i Phill. Lect. 90. x-Proctor, a Carr. & P. 415. y-2 Hagg. 433. LAW. 529 In criminal car.es, the proof of a lucid inter- val must be still more difficult, in the very na- ture of the case. For although the mental manifestations may be perfectly right, it cannot be supposed that the brain has resumed its normal condition. In its outward expression, Insanity, like many other nervous diseases, is characterized by a certain periodicity, whereby the prominent symptoms disappear for a time, only to return again within a very limited period. An epileptic, in the intervals between his fits, may evince to the closest observer not a single trace of mental or bodily disease; and yet, for all that, nobody supposes that he has recovered from his malady. No more does a lucid interval in a case of insanity imply that the disease has disappeared because its outward manifestations have ceased. There unques- tionably remains an abnormal condition of the brain, by whatever name it may be called, whereby the power of the mind to sustain provocations, to resist temptations, or withstand any other causes of excitement, is greatly weakened. Lucid intervals, properly so called, should not be confounded with those periods of ap- parent recovery which occur between two suc- cessive attacks of mental disease, nor with those transitions from one phasis of insanity to another, in which the individual seems to be in his natural condition. They may not be essen- tially different, but the suddenness and brevity of the former would be likely to impart to an act a moral complexion very different from that which it would bear if performed in the larger and more indefinite intermissions of the latter. Still, great forbearance should be exercised to- wards persons committing criminal acts while in any of these equivocal conditions. Those who have suffered repeated attacks of mental disease habitually labor under a degree of ner- vous irritability, which renders them peculiarly susceptible to many of those incidents and in- fluences which lead to crime. The law may make no distinction, but executive and judicial tribunals are generally intrusted with discre- tionary powers, whereby they are enabled to apportion the punishment according to the moral guilt of the party.* It is the duty of the party who contends for a lucid interval, to prove it ; for a person once insane is presumed so, until it is shown that he had a lucid interval, or has recovered,* and yet " were they to run into nicety, proof might be demanded of one's insanity at the precise moment when the act was committed." See INSANITY, above. MALPRACTICE is bad or unskilful practice; practice in a physician, or other professional person, whereby the health or members of the patient is injured; practice contrary to estab- z-Ray Med. Jur. chap. Lite. Int. a-Swinb. 77; Coke Litt. 185, n. ; 3 Brown Ch. 443 ; i Const. So. C. 225 ; i Pet. 163 ; i Litt. Ky. 102. b-F.lwell Malpr. 198, tt seq. ; 7 B. & C. 493, 497 ; 6 Bingh. 440 ; 6 Mass. 134 ; 5 C. & P. 333 ; i M. & R. 405 ; 5 Cox Cr. Cas. 587. e-i Lxl. Raym. 213. d-Elwell Malpr. 343, ft seq.; a lished rules. Ignorant malpractice is flic ad- ministration of medicines calculated to do in- jury, which do harm, and which a well-edu- cated and scientific man would know were not proper in the case. b This offence is a misde- meanor (whether it be occasioned by curiosity and experiment, or neglect), because it breaks the trust which the patient has put in a phy- sician, and lends directly to his destruction. Negligent malpractice comprehends those cases where there is no criminal or dishonest object, but gross negligence of that attention which the situation of the patient requires, as if a phy- sician should administer medicines while in a state of intoxication from which injury would arise to his patient. Wilful malpractice takes place when the physician purposely administers or performs an operation which he knows and expects will result in the death to the indi- vidual under his care, as in the case of a crim- inal abortion. 4 To the performance of all sur- gical operations the surgeon is bound to bring at least ordinary skill and knowledge. He must apply without mistake what is settled in his profession. He must possess and prac- tically exercise that degree and amount cf knowledge and science which the leading authorities have pronounced as the result of their researches and experience up to the time, or within a reasonable time before the issue or question to be determined is made.* Besides the criminal remedy for malpractice, the injured party may in many cases bring a civil action.' Civil cases of malpractice are of very frequent occurrence on those occasions where surgical operations are rendered neces- sary, or supposed to be so, by disease or injury, and are so performed as either to shorten a limb or render it stiff, or otherwise prevent the free, natural use of it, by which the party ever after suffers damages. This may embrace almost every kind of surgical operation ; but nine- tenths of all such cases arise from amputations, fractures, or dislocation.* MEDICAL EVIDENCE. See title EVIDENCE, ante. MIDWIFE is a woman who assists other women in childbirth. A midwife is required to perform the business she undertakes with proper skill; and if she is guilty of any malpractice she is liable to an action or an indictment for the misdemeanor. 11 MISCARRIAGE. See ABORTION, above. MONOMANIA is the derangement of a single faculty, or with regard to a particular subject, the other faculties being in their natural and regular exercise. The most simple form of this disorder is that in which the patient has im- bibed some single notion, contrary to common sense and to his own expense, and which seems, Barb. 216. e-Elwell Malpr. 55; see 8 East. 347; '. Wils. 259 ; i H. Bl. 61 ; Wright, 466; 22 Penn. St. 261; 27 N. H. 460; 13 B. Mon. 219. 5 Day, 260; 9 Conn. 209 ; 3 Watts, 355 ; 7 N. Y. 397. g-Elwell Malpr. 55. h-See Viner Abr. Physician; Com. Dig. Physician; 8 East. 348 ; 2 Wils. 359 ; 4 C. & P. 398, 407, a. ; * Russ. Cr. 288. LAW. nnd no doubt really is, dependent on errors of sensation. It is supposed that the mind in other respects retains its natural intellectual powers ; in order to avoid any civil act done, or criminal responsibility incurred, it must mani- festly appear that the act in question was the effect of monomania.* See DELUSION, above. MONSTER. See BIRTH, above. PARTURITION. See ACCOUCHMENT; BIRTH, .ibove. PATHOLOGY is that branch of the medical science which explains the nature of diseases, their causes, and symptoms ; or, the doctrine of the causes and nature of diseases, compre- hending etiology (causes of disease), nosology (names and definitions of diseases, their class, genus, order, and species), symptomatology (symptoms of diseases), and therapeutics (the use of diet and of medicines). Some degree o r the knowledge of pathology is of great con- sequence to the legal practitioner.^ PHYSICIAN is a person skilled in the art of medicine; one whose profession is to prescribe remedies for diseases; one lawfully engaged in the practice of medicine. Every person who offers his services to the public generally im- pliedly contracts with the employer that he is in possession of the ordinary skill and experi- ence which are possessed by those who prac- tice or profess to understand the art or science, and which are generally regarded by those most conversant with the profession as necest sary to qualify one to engage in the business successfully. This ordinary skill may differ according to locality and means of information.* A physician's responsibility is the same when he is negligent as when he lacks ordinary skill, although the measure of indemnity and pun- ishment may be different. 1 Although a physi- cian is civilly and criminally responsible for his conduct while discharging the duties of his profession, he is in no sense a warrantor or in- surer of a favorable result, without an express contract to that effect. POISON is any agent capable of producing a morbid, noxious, or dangerous effect upon any object endowed with life; of producing death. A substance having an inherent deleterious property which renders it, when taken into the system, capable of destroying life." Gaseous substances are classed as poisons. Irritant poisons, when taken in ordinary doses, occasion speedily violent vomiting and purging, preceded, accompanied, or followed by intense pain in the abdomen, commencing in the region of the stomach. The corrosive poisons, as distinguished from those in a more i-Cyclop. Pr. Med. Sound and unsound of mind; Ray Ins. 203; 13 Ves. Ch. 89 ; 3 Brown Ch. 444; i Add. Eccl. 283; 2 Id. 102 ; Haag. 18 ; 2 Add. 79, 94, 209; 5 C. & P. 168; Burrows Ins. 484, 485. j-2 Chitty Pr. 42, . It-Elwell Malpr. 22-24. 201 : Story Bailm. 433 : 3 C. & P. 629 ; 8 Id. 475. l-Elwe!l Malpr. 27 ; Arch. Cr. PI. (2 Ed.) 411 ; a Ld. Raym 1583 : 3 M. & S. '4, 15: 5 Id. 198 ; i Law Cr. Cas. 169 : 2 Stark. Ev. 526; Broom Max. 168, 169 ; 4 Denio,464; 19 Wend. 345! 346. in-Elwell Malpr. 20; 7 C. & P. 81. n- Wharton & Stille Med Jur. g 493; Taylor Poisons limited sense termed irritant, generally produce their result more speedily, and give chemical indications ; but every corrosive poison acts as an irritant in the sense here adopted. Irritant poisons are : 1. MINERAL: Metallic: Acids; alkalies and their salts ; metalloids. Non-metallic : arsenic. 2. VEGETABLE : Savin. 3. ANIMAL : Cantharides. Narcotic poisons act chiefly on the brain or spinal marrow. Either immediately or some time after the poison has been swallowed, tl.e patient suffers from headache, giddiness, paraly- sis, stupor, delirium, insensibility, and, in some instances, convulsions. Narcotic poisons are : 1. CEREBRAL: Morphia. 2. SPINAL : Strychnia. 3. CEREBRO-SPINAL : Conia ; aconitina. The effects of one class are, however, some- times produced by the other more commonly as secondary, but sometimes even as primary, symptoms. The evidence of poisoning, as derived from symptoms, is to be looked for chiefly in the sud- denness of their occurrence ; this is perhaps the most reliable of all evidence derived from symptoms in cases of criminal poisoning;* though none of this class of evidence can be considered as furnishing anything better than a high degree of probability; the regularity of their increase ; this feature is not universal, and exists in many diseases; uniformity in their nature , this is true in the case of comparatively few poisons ; the symptoms begin soon after a meal ; but sleep, the manner of administration, or certain diseases, may affect this rule in the case of some poisons ; -when several partake at the same time of the same poisoned food, all suffer from similar symptoms ;? the symptoms first appearing while the body is in a stale of perfect health.* Appearances which present themselves on post-mortem examinations are of importance in regard to some classes of irritant poisons ; r but many poisons leave no traces which can be so discovered. Chemical analysis often results in important evidence, by discovering the presence of pois- ons, which must then be accounted for; but a failure to detect it by no means proves that it has not been given. 8 The evidence derived from circumstances differs in nothing in principle from that in case of commission of other crimes. Homicide by poisoning is generally acciden- tal (and therefore not murder), or deliberate.* (2 Am. Ed.) 18. The history of poisoning, and many remarkable early instances of a wide-spread use of poisons, are recorded in works on medical jurispru- dence ; see these, and also, especially, Taylor Poisons ; Archbold Cr. Pr. (Waterman's ed.) 940; Wharton & Stille Med. Jur. ; i Beekman Hist. Jur. 74, et seq. o- See Taylor Pois. 107 ; Christison Pois. 42. p-z Park Cr. Cas. N. Y. 235; Taylor Poisons., 118. q-ArchboId Cr. PI. (Waterman ed.)948. r-See the Hersey Case, Mass. 1861 ; Palmer's Case, Taylor Poisons, 697. 8 Christison Poisons, 61, 62. t-See 19 Conn. 388. LAW. S3' PREGNANCY is the state of a female who has v ithin her ovary or womb a fecundated germ, which gradually becomes developed in the latter receptacle ;' the state of a female who has conceived, or is with child. The signs of pregnancy acquire a great im- portance from their connection with the sub- ject of concealed, and also of pretended, preg- nancy. The first may occur in order to avoid disgrace, and to accomplish in a secret manner the destruction of offspring. The second may be attempted to gratify the wishes of a husband or relations, to deprive the legal successor of his just claims, to gratify avarice by extorting money, and to avoid or delay execution. These signs and indications have a twofold division. First, those developed through the general system, and hence termed constitu- tional; Second, those developed through the uterine system, termed local or sensible. The first, or constitutional, indications re- gard i. The mental phenomena, or change wrought in the temperament of the mother, evidenced by depression, despondency, render- ing her peevish, irritable, capricious, and way- ward ; sometimes drowsiness and occasionally strange appetites and antipathies are present. 2. The countenance exhibits languor, and what the French writers term decomposition of features, the nose becoming sharper and more elongated, the mouth larger, the eyes sunk and surrounded with a brownish or livid areola, and having a languid expression. 3. The vital action is increased ; a feverish heat prevails, especially in those of full habit and sanguine temperament. The body, ex- cept the breasts and abdomen, sometimes ex- hibits emaciation. There are frequently pains in the teeth and face, heartburn, increased dis- charge of saliva, and costiveness. 4. The mammary sympathies give enlarge- ment and firmness to the breasts ; but this may be caused by other disturbances of the uterine system. A more certain indication is found in the areola, which is the dark-colored circular disk surrounding the nipple. This, by its gradual enlargement, its constantly deepening color, its increasing organic action evidenced by its raised appearance, turgescence, and glan- dular follicles, is justly regarded as furnishing a very high degree of evidence. 5. Irritability of stomach, evidenced by sick- ness at the stomacli, usually in the early part of the day. 6. Suppression of the menses, or monthly discharge arising from a secretion from the in- ternal surface of the uterus. This suppression, however, may occur from diseases or from a vitiated action of the uterine system. The second, termed local or sensible signs and indications, arise mainly from the develop- ment of the uterine system consequent upon impregnation. This has reference I. To the change in the uterus itself. The new principle introduced causes a determina- tion of blood to that organ, which develops at first at its fundus, second in its body, and lastly in its cervix or neck. The latter con- stantly diminishes until it has become almost wholly absorbed in the body of the uterus. The os uteri in its unimpregnated state feels firm, with well-defined lips or margins. After impregnation the latter becomes tumid, softer, and more elastic, the orifice feeling circular instead of transverse. 2. To the state of the umbilicus, which is first depressed, then pushed out to a level with the surrounding integuments, and at last, towards the dose of the period, protruded con- siderably above the surface. 3. To the enlargement of the abdomen. This commences usually by the end of the third month, and goes on increasing during the period of pregnancy. This, however, may re- sult from morbid conditions not affecting the uterus, such as disease of the liver, spleen, ovarian tumor, or ascites. 4. To quickening, as rendered evident by the foetal motions. By the former we understand the feeling by the mother of the self-induced motion of the foetus in utero, which occurs about the middle of the period of pregnancy. But as the testimony of the mother cannot be always relied upon, her interest being some- times to conceal it, it is important to inquire what other means there may be of ascertaining it. These movements of the foetus may some- times be excited by a sudden application of the hand, having been previously rendered cold by immersion in water, on to the front of the abdomen. Another method is to apply one hand against the side of the uterine tumor, and at the same time to impress the opposite side quickly with the fingers of the other hand But the most reliable means consists in thf application of auscultation, or the use of the stethoscope. This is resorted to for the pur- pose of discovering First, The souffle, or placental sound. Second, The pulsations of the foetal hearl. The first is a low, murmuring, or cooing sound, accompanied by a slight ru.-hing noise, 1ml without any sensation of impulse. It is syn- chronous with the pulse of the mother, and varies not in its situation during the course of the same pregnancy. Its seat in the abdomen does vary in. proportion to the progressive ad- vance of the pregnancy, and it is liable to intermissions. The second is quite different in its charac- teristics. It is marked by double pulsations, and hence very rapid, numbering from one hundred and twenty to one hundred and sixty in a minute. These pulsations are not heard until the end of the fifth month, and become more distinct as the pregnancy advances. Their source being the fcetal heart, their seat will vary with the vaiying position of the foetus. Auscultation, if successful, not only reveals the fact of pregnancy, but also the life of the fcetus. t-Dunglinson Med. Diet. Preg. 532 LAW. There is still another indication of preg- nancy; -and that is a bluish tint of the vagina, extending from the os externum to the os uteri. It is a violet color, like lees of wine, and is caused by the increased vascularity of the genital system consequent upon con- ception. But any similar cause other than conception may produce the same appear- ance. Independent of what may be found on this isubject in works on medical jurisprudence and midwifery, that of Dr. Montgomery on the " Signs and Indications of Pregnancy " is the fullest and most reliable. The laws relating to pregnancy concern the circumstances under and the manner in which the fact is ascertained. There are two cases where the fact whether a woman is or has been pregnant is important to ascertain. The one is when it is supposed she pretends pregnancy, and the other when she is charged with con- cealing it. Pretended pregnancy may arise from two causes : the one when a widow feigns herself with child in order to produce a supposititious heir to the estate. The presumptive heir may in such case have a writ de venire inspiciendo (of examining the abdomen), by which the sheriff is commanded to have such made, and the fact determined whether pregnancy exists or not, by twelve matrons, in the presence of twelve knights. If the result determine the fact of pregnancy, then she is to be kept under proper guard until she is delivered. If the pregnancy be negatived, the presumptive heir is admitted to the inheritance. 11 A practice quite similar prevailed in the civil law. The second cause of pretended pregnancy occurs when a woman is under sentence of death for the commission of a crime. At common law, in case this plea be made before execution, the court must direct a jury of twelve matrons, or discreet women, to ascertain the fact, and if they bring in their verdict juick with child (for barely with child, unless 't be alive in the womb, is not sufficient), exe- cution shall be stayed, generally till the next session of the court, and so from session to session, till either she is delivered or proves by the course of nature not to have been with child at all.' In Scotland, all that is necessary to be proved, to have execution delayed, is the fact of pregnancy, no difference being made whe- ther she be quick with child or not. This is iilso the provision of the French penal code upon this subject. In this country, there is little doubt that clear proof that the woman was pregnant, though not quick with child, would at common law be sufficient to obtain a respite of execution until after delivery. The dif- ficulty lies in making the proof sufficiently clear, the signs and indications being all somewhat n-i Sharswood, Blaclcst. Comm. 456; Croke Eliz. 566 ; 4 Brown Ch. 90 ; 2 P. Will. Ch. 591 ; Cox Cr. Cas. 297. v-4 Sharswood, Blackst. Comm. 394, 395 ; I Bay, uncertain, some of them wanting, all liable ta variation, and conviction of the fact only fasten- ing upon the mind when a number of them, in- explicable upon any other hypothesis, concur in that one result. In New York there is a stat- ute regulation , w by which the sheriff is authorized to summon a jury of six physicians when a preg- nant female convict is under sentence of death, and, if the inquisition by them executed find that such convict is quick with child, execution shall be suspended, and the inquisition trans- mitted to the governor; and whenever he shall become satisfied that she is no longer quick with child, he shall issue his warrant for her execution. Pregnancy is seldom concealed except for the criminal purpose of destroying the life of the foetus in utero, or of the child immediately upon its birth. Infant life is easily extin- guished; while proof of the unnatural crime is hard to be furnished. This has led to the passage of laws, calculated to facilitate the proof and also to punish the very act of conceal- ment of pregnancy and death of the child, when, if born alive, it would have been illegitimate. PROLICIDE. See FCETICIDE; INFANTICIDE, above. PULSATION is the beating or throbbing of the heart, or of an artery in process of carrying on the circulation of the blood ; beating with- out pain, as distinguished from verberation, or beating with pain. 1 QUICKENING is becoming alive ; the sensation a mother has of the motion of the child she has conceived. The period when quickening is first experienced varies from the tenth to the twenty-fifth, but is usually about the sixteenth week from conception.? It was formerly sup- posed that either the child was not alive until the time of quickening, or that it had acquired some new kind of existence that it did not pos- sess before ; hence the presumption of law that dates the life of the child from that time. The child is, in fact, alive from the first moment of conception, and, according to its age and state of development, has different modes of mani- festing its life, and, during a portion of the period of gestation, by its motion. By the growth of the embryo the womb is enlarged until it becomes of too great a size to be con- tained in the pelvis; it then rises into the ab- domen, when the motion of the foetus is for the first time felt. Quickening, as indicating a distinct point in the existence of the foetus, has no foundation in physiology; for it arises merely from the relation which the organs of gestation bear to the parts that surround them ; it may take place early or late, according to the condition of these different parts, but not from any inherent vitality for the first lime mani- fested by the foetus. As life, by law, is said to commence when a woman first becomes quick with child, so pro- So. C. 487. w-See 3 Rev. Stat. ch. 37, g? 20-22 of the 5th edition, x-3 Sharsw. Bl. Comm. 120,* Calvinu* Lex. Putsare. y-Denman Midw. 129. LAW. 533 curing an aboi L.V,.. aicer that period is a misde- meanor. Before this time, formerly the law diU not interfere to prevent a pregnant woman convicted of a capital offence from being exe- cuted. 1 If, however, the humanity of the law of the present day would not allow a woman to be executed who \sprivement enceinte,*' i. e., pregnant, although not quick, it would be but carrying out the same desire to interfere with long-established rules, to hold that the penalty for procuring abortion should also extend to the whole period of pregnancy. SOMNAMBULISM is the act or practice of walk- ing in sleep; sleep-walking. The mental con- dition of this affection is not very unlike that of dreaming. Many of their phenomena are the same ; and the former differs from the lat- ter chiefly in the larger number of the functions involved in the abnormal process. In addition to the mental activity common to both, the som- nambulist enjoys the use of his senses in some degree, and the power of locomotion. He is thereby enabled to perform manual operations as well, frequently, as in his waking state. The farmer goes to his barn and threshes his grain ; the house-servant lights a fire and pre- pares the breakfast for the family; and the scholar goes to his desk and writes or reads. Usually, however, the action of the senses is more or less imperfect, many of the impres- sions being incorrectly or not at all perceived. The person walks against a wall, or stumbles over an object in his path ; he mistakes some projection for a horse, strides across it, and im- agines himself to be riding; he hears the faint- est sound connected with what he is doing, while the voices of persons near him, even the blast of a trumpet, are entirely unnoticed. Oc- casionally the power of the senses is increased to a degree unknown in the waking state. For the most part the operations of the somnambu- list consist in getting up while asleep, groping about in the dark, endeavoring to make his way out of the house through doors or win- dows, making some inarticulate sounds, per- haps, and all the while unconscious of persons or things around him. The power of the per- ceptive faculties, as well as that of the senses, is sometimes increased in a wonderful degree. The somnambulist always awakes suddenly, and has but a faint conception, if any, of what he has been thinking and doing. If conscious of anything, it is of an unpleasant dream im- perfectly remembered. This fact, not being generally known, will often enable us to detect simulated somnambulism. If the person on waking continues the same train of thought and pursues the same plans and purposes which he did while asleep, there can be no doubt that he is feigning the affection. When a real som- nnmbulist, for some criminal purpose, under- takes to simulate a paroxysm, he is not at all likely to imitate one of his own previous parox- ysms, for the simple reason that he knows less z-2 Hale PI. Cr. 413. a-Bl. Comm. 129. fo-Hoff- bauer ; Die Psychologic, etc. c. 4, art. . C-Sec Gray than others how he appeared while in them. If, therefore, somnambulism is alleged in any given case, with no other proof than the occur- rence of former paroxysms unquestionably gen- uine, it must be viewed with suspicion if the character of the alleged paroxysm differs materially from that of the genuine ones. In one way or another, a case of simulation would generally be detected by means of a close and intelligent scrutiny, so difficult is it to imitate that mixture of consciousness and un- consciousness, of dull and sharp perceptions, which somnambulism presents. The history of the individual may throw some light on the matter. If he has had an opportunity of wit- nessing the movements of a somnambulist in the course of his life, this fact alone would rouse suspicion, which would be greatly in- creased if the alleged paroxysm presented many traits like those of the paroxysms pre- viously witnessed. The legal consequences of somnambulism should be precisely those of insanity, which it so nearly resembles. The party should be ex- empt from punishment for his criminal acts, and be held amenable in damages for torts and trespasses. The only possible exception to this principle is to be found in those cases where the somnambulist, by meditating long on a criminal act while awake, is thereby led to commit it in his next paroxysm. Such being generally the fact, too much indulgence ought not to be shown to the criminal acts of the somnambulist. 1 * But this is rather refined and hazardous speculation, and seems like punish- ing men solely for bad intentions, because the acts, though ostensibly the ground of punish- ment, are actually those of a person deprived of his reason. The truth is, however, that criminal acts have been committed in a state of somnambulism by persons of irreproachable character." STERILITY is barrenness; unfruitfulness ; inability to produce young; inability to im- pregnate or conceive. When incurable at the time of marriage, and arising from impotency, it is a good cause for dissolving a marriage. d See IMPOTENCY, above. SUICIDE is self-destruction; self-murder; the act of designedly destroying one's own life. To constitute suicide, the person must be of years of discretion, and of sound mind.* This was once regarded by the common law as ex- clusively a felonious act; of late, however, it has been often treated as the result of insanity, to be followed by all the legal consequences of that disease, so far as it is practicable. That suicide may be committed by a person in the full enjoyment of his reason there can be no doubt ; nor can there be any doubt that it is often the result of unquestionable insanity. Between the two kinds of suicide here indi- cated, the medical jurist is obliged to discrimi- Med. Jur. 265; Wharton & S. Med. Jur.; Tirrefl's case, Mass, tl-i FoederS MSd. L6g. g 254. e-4 BL Comm. 190. 534 LAW. nate, and in performing this duty the facts on the subject should be carefully considered. The instinct of self-preservation is not so strong as to prevent men entirely from being tired of life and seeking their own destruction. They may have exhausted all their sources of enjoyment, their plans of business or of honor may have been frustrated, poverty or dishonor may be staring them in the face, the difficulties before them may seem utterly insurmountable, and, for some reason like these, they calmly and deliberately resolve to avoid the evil by ending their life. The act may be unwise and presumptuous, but there is in it no element of disease. On the other hand, it is well known that suicidal desires are a very common trait of insanity that a large proportion of the in- sane attempt or meditate self-destruction. It may be prompted by a particular delusion, or by a sense of irresistible necessity. It may be manifested in the shape of a well-considered, persistent intention to seize upon the first oppor- tunity to terminate life, or of a blind, automatic impulse acting without much regard to means or circumstances. As the disease gives way and reason is restored, this propensity disap- pears, and the love of life returns. Besides these two forms of the suicidal pro- pensity, there are other phases which cannot be referred with any degree of certainty to either of them. Persons, for instance, in the enjoyment of everything calculated to make life happy, and exhibiting no sign of mental disease, deliberately end their days. Another class, on approaching a precipice or a body of water, are seized with a desire, which may be irresistible, to take the fatal plunge. Many are the cases of children who, after some mild re- proof, or slight contradiction, or trivial disap- pointment, have gone at once to some retired place and taken their lives. Every case must be judged by the circumstances accompanying it, always allowing the benefit of the doubt to be given to the side of humanity and justice. By the common law suicide was treated as a crime, and the person forfeited all chattels, real or personal, and various other property.' This result can be avoided by establishing the in- sanity of the party; ajid in England, of late years, courts have favored this course whenever the legal effect of suicide would operate as a punishment. On the other hand, where the rights and interests of other parties are involved, the question of insanity is more closely scrutin- ized ; and ample proof is required of the party on whom the burden of proof lies. In regard to wills made just before commit- ting suicide, the prevalent doctrine on this point, both in the United States and in Eng- land, is that the act of self-destruction may not necessarily imply insanity, and that if the will f-4 Blackstone Comm. 190. g-j Pick. Mass. 94: i Hagg. Eccl. 109 ; 2 Harr. Del. 583 : 2 Eccl. 415. h-3 Mann. & G. 437 ; 5 Id. 639 ; 4 All. Mass. 96 ; see Whar- ton, Mental Unsoundness ; Phillips Ins. 1-J3 Mass. 359 ; Russ. & R. Cr. Cas. 523. j-i Beck Med. Jur. 193 , Cassan, Supcrfoeution ; i Briand Med. Leg. prem. is a rational act, rationally done, the sanity of the testator is established.* In life-insurance, in every case of intentional suicide, whatever may have been the mental condition, the policy becomes void. h In cases of persons found dead, the cause may not be always perfectly obvious, and it be- comes necessary to determine whether death was an act of suicide, or murder. This is often one of the most difficult questions in the whole range of medical jurisprudence, requiring for its solution the most profound knowledge of surgery and physiology, and great practical sa- gacity. In case of death caused by wounds, the kind and situation of the weapon, the ex- tent, direction, and situation of the wounds, their connection with marks of blows, the tem- per and disposition of the person, all these and many other circumstances must be carefully and intelligently investigated. The frequency with which cases of suicide strongly resemble, in their external characters, those of murder, renders necessary the highest degree of skill and careful discrimination. If one counsels another to commit suicide, and is present at the consummation of the act, it is murder in the principal. 1 SUPERFCETATION is the conception of a child by a woman already pregnant with another, during the time of such pregnancy. It is a doctrine that seems to be established by numer- ous cases.J VERBERATION. See PULSATION, above. WOUNDS are any lesions of the body whereby blood is drawn, including contusions, gunshot wounds, incisions, lacerations, punctures, etc. To constitute a wound the continuity of the skin must be broken, k and not merely the cuticle, but the true skin must be divided. 1 If the skin be broken the means by which it was done are not material. A kick may give a wound. m See DEATH, above. MERCANTILE LAW. See titles AGENCY; BAILMENTS; BONDS, NOTES, AND BILLS; CONTRACTS; INSURANCE; INTEREST, ETC,, ETC., ante. MILITARY LAW is a system of regula- tions for the government of an army." It is *.o be distinguished from martial law, which ex- tends to all persons. Martial law supercedes and suspends all civil law ; but military law is superadded and subordinate to the civil law. MUNICIPAL LAW is that governing a single nation, state, district, city, town, com- munity, etc. It is distinguished from inter- national law. PLACE LAW OF. The law of the place, lex loci, and is, in gen- eral, only used for law of the place where the contract was made, or where the act was per- formed or to be performed. Parlie Ch. 3, Art. 4 ; I Fcedere Med. Lg. 299 ; Buffo* Hist. Nat. derhomme, Pubtrtf. k-i Moody C.C. 278. 1-8 C. & P. 365, 173 ; i M. & R. 526. m-i Moody C 0.318. n-i Kent Comm. 377, n. o-See 2 Kent. Comm 10 ; 34 Me. 126. LAW. 535 In Contracts. It is a general principle ap- plying to contracts made, rights acquired, or acts done, relative to personal property, that the law of the place of making the contract or doing the act is to govern it, and determine its validity or invalidity, as well as the rights of parties under it in all matters touching the modes of execution and authentication of the form or instrument of contract; and also in re- lation to the use and meaning of the language in which it is expressed, the construction and interpretation of it, the legal duties and obliga- tions imposed by it, and the legal rights and immunities acquired under it.* This principle, though general, does not, however, apply where the parties at the time of entering into the con- tract had the law of another kingdom in view, or where the law of place is in itself unjust, igainst good morals, or contrary to the public law of the State, as regarding the interests of religion or morality, or the general well-being of society. 1 * And where the place of perform- ance is different from the place where the con- tract is made, it is presumed the parties had the law of the former in mind. The law of place is presumed to be the same as that of the forum unless shown to be other- wise. The Interpretation. Formalities, etc. ; Con- struction and Obligation of Contracts, etc. The interpretation of contracts is to be governed by the law of the country where the contract was made. d The law of place governs as to the formalities and authentication requisite to the valid execution of contracts.* But in proving the existence of, or seeking remedies for the breach, as well as all questions relating to the competency of witnesses, course of procedure, etc., the law of the forum must govern/ The law of place governs as to the construction of contracts,* unless from their tenor it must be presumed they were entered into with a view to the laws of some other State. h This presump- -i Bingh. (N. C.) 154, 159 : 8 Clark & F. Ho. L. 121 ; i Pet. 317; 13 Id. 378, 379; 2 N. H. 42; 5 Id. 401 ; 13 Id. 321 ; 6 Vt. 102 ; 2 Mass. 88, 89 ; SCush. 30 ; 3 Conn. 253, 472 ; 14^.583; 22 Barb. 118; 17 Penn. St. 91 ; 2 Hair. & J. 193; 3 Gill. & J. 234 ; 9 Gill, i : 3 Dev. 161 ; 8 Mart. 95; 4 OhioSt. 241 ; 14 B. Mon. 5^6; 19 Mo. 84; 22 Id. 550; 4 Fla. 404; 23 Miss. 42; 12 La. An. 607; 3 Story C. C. 465; Ware Dist. Ct. 402; Story Confl. L. (* 242, et seq. ; Bayley Bills (sth Ed ) 78 ; Parsons' Notes & B. ; 2 Kent Comm. Lect. 39. b-Fergtison Marr. & Div. 385 ; 2 Burr. 1077 : 9 N. Y. 271 ; 6 Pet. 172 ; i How. 169 ; 5 Id. 295 ; 8 Paige Ch. 261 ; 17 Johns. 511 ; 13 Mass. 23; 5 Clark & F. Ho. L. 11,13; 8 Id. 121 ; 6Whart. 331; 2 Met. (Mass.) 8 ; i B. _Mon. 32; 5 Ired. 590; 2 Kent Comm. 458; Story 'Confl. L. 280. 0-46 Me. 247; 13 La. An. 673; 13 Md. 392 ; 9 Gill, i ; 4 Iowa, 464 ; but see i Iowa, 388. d-Dougl. 201, 207; 2 B. & Ad. 746; 6 T. R. 224; i Bingh. (N. C.) 151-159; i B. & Ad. 284; 10 B. & C. 903 ; 2 Hagg. Cons. 60, 61 ; 8 Pet. 361 ; 13 Id. 378 ; 30 Ala. (N. S.) 253 ; 4 McLean C. C. 540 ; 2 Sharsw. BI. Comm. 141; Story Confl. L. $270; Chitty Bills, 474. cvStory Confl. \ 123, 260; n La. 14; 2 Hill, 227; 37 N. H.86; 30 Vt. 42. f-n Ind.sSs; 9 Gill, i; 17 Penn. St. 91 ; 18 Ala. N. S. 248 ; 4 McLean C. C. 540 ; 3 Id. 545 ; 5 How. 83; 6 Humph. 75 : i7Conn. 500; 9^0.56,157; 4 Gilm. (Va.) 521 ; 26 Barb. 177; Story Confl. L. $ 567, 634. g-n Pick. 32; 8 Vt. 325; 12 N. H. S2o; 12 Wheat. 213; 2 Keen, 293 ; i B. & P. 138 ; 12 Wend. 439 ; 22 Barb. 118 ; 13 Mart. 202; 14 B. Mon. 556; 15 Miss. 798. lion arises where the place of performance is different from the place of making. 1 An obliga- tion may be incurred under the law of place which there is no means of enforcing in that country, and which may be enforced in another country J A lien or privilege created by the law of place will generally be enforced wherever the property may be found, k but not necessarily in preference to claims arising under the law of the forum. 1 A discharge from the performance of a con- tract under the law of place is a discharge everywhere." 1 A distinction is to be taken be- tween discharging a contract and taking away the remedy for a breach." Contracts Made Partly in one State and Partly in Another. Where a contract is made partly in one country and partly in another, it is a contract of the place where the assent of the parties first concurs and becomes complete.* As between the place of making and the place of performance, where the place of performance is specified, the law of the place of perform- ance governs as to obligation, interpretation, etc.P Where the contract is to be performed generally, the law of the place of making gov- erns.i If the contract is to be performed partly in one state and partly in another, it will be affected by the law of both states. 1 " In cases of indorsement of negotiable paper, every in- dorsement is a new contract, and the place of each indorsement is its place of contract. The place of payment is the place of contract, how- ever, as between indorsee and drawer.* The place of acceptance of a draft is regarded as the place of contract." The legality or illegality of a contract will be determined by the lex loci, unless it affects injuriously the public morals or rights, contra venes the policy, or violates a public law of th<; country where it is to be enforced.' A con- tract illegal by the law of the place of its mak- ing and performance will generally be hel<7 so Il-i3 Mass. I. 1-31 Eng. L. & Eq. 433; 17 Johns. 511 ; 13 Pet. 65 ; 9 La. An. 185; 13 Mass. 23; i How. 169. j-i B. & Ad. 284 ; 2 Cow. 626; 2 Johns. 345; i Pet. 317; i Wash. C. C. 376; 10 Wheat, i ; Henry Foreign L. \ 81-86 ; Story Confl. L. g 571. k-8 Mart. 95 ; 5 La. Blackf. 394; 3 Caines, 154 ; 24 Wend. 43; 2 Kent Comm. 394. 11-3 Mass. C. C. 88; S Id. 378; 4 Conn. 47 ; 14 Pel. 67 ; 12 Wheat. 347 ; 8 Pick. 194 ; 9 Conn. 31412 Blackf. 394; 9 N. H. 478. 0-2 Parsons' Contr. 94 ; 27 N. H. 217, 244 ; ii Ired. 303; 3 Strobh. 27 ; i Gray, 336. |V 5 East. 124; 2 Caines, 154 ; i Gall. C. C. 371 ; 12 Vt. 648; 12 Pet. 456; 13 Id. 65; T How. 182; 8 Paige, 26 r ; 8 Johns. 189; 17 Id. 511 ; 5 McLean C. C. 448: 27 Vt. 8 : 14 Ark. 189 ; 7 B. Mon. 575 ; 8 Id. 306 : 9 Mo. 56, 157; 4 Gilm. (Va.) 521; 2163.135; 30 Miss. 55 ; ) Ohio, 134; 4 Mich. 450; 2 Kent Comm 459; Story Confl. L. ? 233 ; but see n Texas, 54. q-2 B & Aid. 301 ; 5 Clark & F. Ho. L. T, 12 ; i B. & C. 16 : i Met. (Mass.) 82 ; 6 Cranch, 221 ; 6 Ired. 107; 17 Miss 220 r-i4 B. Mon. 556. 8-2 Kent Comm. 460: Prec. in Chanc. 128; 17 Johns. 511 ; 9 B. & C. 208 ; 13 Mass, r ; 25 Ala. (N. S.^ 139; 19 N.Y. 436; 17 Texas. 102 t- See 19 N. Y. 436. 11-3 Gill. 430 ; i Q. B. 43 : i Cow. 103 . 4 Pet. in : 12 Wend. 439 ; 6 Duer, 34 ; 8 Met. (Mass.) 107; 4 Dev. 124 ; 6 McLean C. C. 622 ; 9 Cush. 46; ij N. Y. 290 ; iSConn. 138 ; 17 Miss. 220; see ante, BONDS NOTES, AND BILLS, v-z Kent Comm. 458. 536 LAW. everywhere.* A contract legal by the lex loci will be so everywhere, 1 unless : 1. It is injurious to public rights or morality J 2. It contravenes the policy, 1 and it is gen- erally held that the claims of citizens are to be preferred to those of foreigners in case of a conflict of rights. Assignments under the in- solvent laws of a foreign state are usually held inoperative as against claims in the state in re- gard to personal property in the jurisdiction of the lex jori.* 3. Or violates a positive law of the lex fori. The application of ihe lex loci is a matter of comity, and that law must, in all cases, yield to the positive law of the place of seeking the remedy. b Statutes of limitation apply to the remedy, but do not discharge the debt. 8 The validity or invalidity of a contract as affected by the lex loci may depend upon the capacity of the parties, or the legality of the act to be done. The capacity of the parties as affected by questions of minority or majority, guardianship and other personal qualities or disabilities, is to be decided by the law of the p/lace of making the contract. 3 Personal dis- qualifications not arising from the law of nature, but from positive law, and especially such as are penal, are strictly territorial, and are not to be enforced in any other country than where they originate.' Natural disabilities, such as insanity, imbecility, etc., are everywhere recog- nized, so that the question whether they are controlled by the lex loci or lex domicilli seems to be theoretic rather than practical. IN TORTS. Damages for the commission of a tortuous act are to be measured by the law of the place where the net was done. f PLACE OF SITUATION OF THE THING. Lex rei sites is law of the place or situation of the thing. It is the universal rule of the common law that any title or interest in land, or in other real estate, can only be acquired or lost agree- ably to the law of the place where the same is situate,* and the law is the same in this respect in regard to all methods whatever of transfer, and every restraint upon alienation. 11 PROSPECTIVE LAW is that which is w-i Gall. C. C. 375; 2 Mass. 88. 89; 2 N. H. 42; 5 Id. 401 ; 2 Mas. C. C. 459 ; 13 Pet. 65, 78 ; 2 Johns. Cas. 355; i Nott. & M'Cord, 173; 2 Harr. & J. 193, 221, 225; 17 111. 328; 16 Texas, 344- 2 Burr. 1077; 7 T. R. 237; 2 Kent Comm. 458; Henry Foreign L. 37, 5; Story Confl. L. J 243. An exception is said to exist in case of contracts made in violation of the revenue laws. Cas. temp- Hardw. 85; 2 C. Rob. Adm. 6; i Dougl. 251 ; i Cowp 341 : 2 Cr. M. & R. 311; 2 Kent Comm. 458. X-I3 La. An. 117. y -3 Burr. 1568 ; Cuwp 37; 2 C'arr. & P. 347; 4 B. & Aid. 650; i ifps. & P. 340; 6 Mass. 379: 2 Hnrr & J. 193. Z-2 Bingh. 314; 2 Sim. Ch. 194: i Turn & R. 299; i Dowl. & C. 342; 16 Johns. 438; 5 Hairing. 31; i Green Ch. 326. 17 Ga. 253. -i Green Ch. 326; 5 Hamng. 31 ; 32 Miss 246; 13 La An. 280; 21 Barb. 198 ; but see 12 Md 54 ; 13 Id. 392. b- 13 Mass. 6: 18 Pick. 193 ; i Green Ch. 326: 12 Barb 631; 17 Miss. 147: see 10 N. V. 53. C-n Wheat 361 ; 9 How. 407 : o Pick. 310; ii Id. 36; 17 Mass. 55 ; a Paine C. C. 7 : a Mas, C- C. 751 ; 6 N. H. 557 ; 6 Vt. 137 ; 8 Port. applicable to the future; it is used in contra- distinction to retrospective. To be just a law ought always to be prospective.' REPORT LAW. REPORTS are printed or written collections of accounts or relations of cases judicially argued and determined. Prior to the year 1800 there were but one or two American reports, while in England there were very many. In the jurisprudence of nearly every civilized country, the force of adjudicated precedents is to a greater or less degree acknowledged. But in no countries are they so deferentially listened to, and, indeed, so implicitly obeyed as in Eng- land and in those countries which, like our own, derive their systems of judicial govern- ment from her. The European systems are composed, much more than either ours or the English, of codes; and their courts rely far more than ours upon the opinions of eminent text writers. With us, we pay no implicit re- spect to anything but a " case in point," and, supposing the case to be by an authoritative court, when that is cited it is generally taken as conclusive on the question in issue. Hence both the English and American jurisprudence is filled with books of reports; that is to say, with accounts of cases which have arisen, and the mode in which they have been presented, considered, argued, and decided. It is of late years usual, in the United States at least, for the courts to write out their opinions and de- liver them to the reporter, so that usually the opinion of the court is correctly given. Noth- ing can be so various, as respects their grade of merit, as the English reports prior to about the year 1776, and the lawyer should never rely upon any one of them without knowing the character of the volume which he cites. Great judicial mistakes have arisen, even with the most able courts, from want of attention to the different characters of the old reporters.^ RETROSPECTIVE LAW is that hav- ing reference to matters or things existing before its passage. Laws which operate upon some subject, contract, or crime which existed before their passage, are generally unjust, and are to a certain extent forbidden by that article of the Constitution of the United States which pro- hibits the passage of ex post facto laws, or laws (Ala.) 84 ; but see 5 Clark & F. Ho. L. 1-17 ; 9 B. Mon. 513; 2 Texas, 414; see LIMITATIONS. TENANT. LOSS. See INSURANCE. LOST PAPERS. WHEN AGREEMENTS, CONVEYANCES, DEEDS, WILLS, and the like have been lost, and it is desired to prove their contents, the party must prove that he has made diligent search, and in good faith exhausted all sources of information accessible to him. For this purpose his own affidavit is sufficient.* On being satisfied of this, the court will allow secondary evidence to be given of its contents. Even a will proved to be lost may be admitted to probate upon secondary evidence. b But the fact of the loss must be proved by the clearest evidence, because it may have been destroyed by the testator with an intention to revoke. WHEN A BOND OR OTHER DEED was lost, formerly the obligee or plaintiff was compelled to go into equity to seek relief, 3 but now the loss of any paper other than a negotiable note will not prevent the plaintiff recovering at law as well as in equity. 8 WHEN A NEGOTIABLE NOTE HAS BEEN LOST, the claimant must tender an indemnity to the debtor, and file his petition or complaint to compel payment.' LOST PROPERTY. RIGHTS AND DUTIES OF A FINDER. The finder is entitled to certain rights, and liable to duties which he is obliged to perform. This is a species of deposit, which, as it does not arise ex contractu, may be called a quasi deposit, and it is governed by the same general rules as common deposits. The finder is required to take the same reasonable care of the property found as any voluntary depositary ex contractu.* The finder is not bound to take the goods he finds, yet when he does undertake the custody, he is required to exercise reasonable diligence in preserving the property, and he will be responsible for gross negligence. On the other hand, the finder of an article is entitled to re- cover all expenses which have necessarily occurred in preserving the thing found ; as, if a man were to find an animal, he would be entitled to be reimbursed for its keeping, for Yeates Penn. 131 ; 4 Dall. Penn. 225 ; 8 Me. 298. m- 8 Barnew. & C. 612; 16 Conn. 12, 23; 3 Woodb. & M. C. C. 193. n-i Parsons' Mar. Law, 100; 2 Curt. C. C. 427; 2 Yes. & B. Ch. Ir. 242 ; Cowp. 469. o-Olcott Adm. 120; i Wall, Jr. 370. p-Met. Yelv. 67, i.; Sug- den Vend. 306, 446. a-i Atk. Ch. 446; i Grecnlf. F.v. 349. b-i Greenl. Ev. (ad Ed.) $ 84, 509, 575 ; 2 Id. \ 668. c-8 Met. Mass. 487; 2 Add. Eccl. 223 ; 6 Wend. 173; i Hagg. Eccl. 115; 3 Pick. 67; 58. Mon. 58; 2 Curt. Eccl. 913. d-i Chanc. Cas. 77. e-3 Atk. 214; i Ves. Ch. 341 ; 5 Id. 235 ; 6 Id. 812 : 7 Id. 19 ; 3 Ves. & B. Ch. Ir. 54. f-7 B. & C. 90 ; Ry. & M. 90 ; 4 Taunt. 602 ; 2 Ves. Sr. Ch. 317 : 16 Ves. Ch. 430; see ante, BAILMENTS, DEPOSIT. a-Doctor & Stud. Dial. 2 c, 38; a Bulstr. 306, 312 ; I Rolle, 125. LOSS MARRIAGE AND DIVORCE. 543 Advertising in a reasonable manner that he had found it, and to any reward which may have iieen offered by the owner for the recovery of such lost thing.* And when the owner does not reclaim the goods lost, they belong to the finder. CRIMINAL RESPONSIBILITY OF A FINDER. As to the criminal responsibility of a finder, the result of the authorities is that if a man finds goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them, with intent to take en- tire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny ; but if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. 4 Lucid Intervals. See MEDICAL LAW. Luggage. See BAILMENTS, " Common Carriers." Machine. See PATENTS. Magistrate. See OFFICE AND OFFICERS. Maintenance. See CONTRACTS ; CRIMINAL LAW. Maker. See BONDS, NOTES, AND BILLS. "In I practice. See MEDICAL LAW. Malice. See CRIMINAL LAW. Malicious Injury; Mischief; Tres- pass; etc. See CRIMINAL LAW. Manager. See CORPORATIONS. Mandamus. See PRACTICE. Mandate. See BAILMENTS ; PRACTICE. Mania. See MEDICAL LAW, "Insanity." Manslaughter. See CRIMINAL LAW. Manufacturer. See PATENTS. Manuscript. See COPYRIGHTS. Marine. See INSURANCE. Marital. See MARRIAGE. Maritime Contract. See CONTRACTS. MARRIAGE AND DIVORCE. See CON- TRACTS. MARRIAGE is a contract, made in due form of law, by which a man and woman recipro- cally engage to live with each other during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife. CONTRACT OF MARRIAGE. The marriage contract is in law a civil con- tract, to which the consent of the parties is essential. The marriage relation can only be entered into, maintained, and abrogated as provided by law. It is dissolved by death or divorce. A marriage which is valid by the laws of the country in which it is contracted is valid in this State. To make a valid marriage the parties must be -willing to contract, able to contract, and have actually contracted. All persons are able to contract marriage unless they are under the legal age, or unless there be other disability ; the age of consent at common law is fourteen in males and twelve in females.* When a person under this age marries, such person can, when he or she arrives at the age above specified, avoid the D-Domat. i, 2, /. 9, s. 2, . 2 : see Story Bailm. 235. C-i Bl. Comm. 296 : a Id. 9 ; 2 Kent. Comm. 290. The acquisition of treasure by the finder is evidently founded on the rule that what belongs to none naturally becomes the property of the first occupant ; res nullius natural- iter fit primi occupantis. d-i Denio Cr. Cas. 335- 387 : 2 Id. 353 ; 2 Ben. & H. Lead. Cr. Cas. 18 ; Dearsl. Cr. Cas. 580; Bell Cr. Cas. 27; 2 Carr. & K. 841 : 6 Cox Cr. Cas. 117 ; 7 M. & W. 623 ; i Hill, 94 ; 22 Conn. 153. a-Reeve; Dom. Rel. 236; 2 Kent Comm. (6th marriage, or such person or both may, if the other is of legal age, confirm it ; if either of the parties is under seven, the marriage is void. b If either party is non compos mentis or in- sane,* or has a husband or wife living, 4 the marriage is void. Consanguinity and affinity within the rules prescribed by law render the marriage void. The parties must each be willing to marry the other. If either party acts under compul- sion, or is under duress, the marriage is void- able.' Where one of the parties is mistaken in the person of the other, this requisite is wanting; but a mistake as to the qualities or character of the other party will not avoid the marriage.' If the apparent willingness is pro- duced by fraud, the marriage will be valid until set aside by a court of competent jurisdic- tion, or by a decree of divorce.* Fraud is sometimes said to render a marriage void, but this is incorrect, as it is competent for the party injured to waive the tort, and affirm the mar- riage. Impotency in one of the parties is sometimes laid down as rendering the marriage void, as being a species of fraud on the other party ; but it is only a ground for annulling the contract by a court or for a divorce. The parties must actually make a contract of marriage ; the form and requisites are here- inafter stated. At common law no particular form of words or ceremony is necessary; mutual assent to the relation of husband and wife is sufficient. Any words importing a previous assent to being married to each other are sufficient evi- dence of the contract, if legally consummated. Marriage is proved, in the absence of a license and certificate of the person authorized to perform the ceremony or proved copies thereof, from the subsequent acknowledgment of the parties, or from proof of cohabitation, or of general reputation resulting from the con- duct of the parties.* In civil cases a marriage can generally be proved by showing that the parties have held themselves out as husband and wife, and by general reputation founded on their conduct. There is an exception, however, in the case of such civil suits as are founded on the marriage relation, such as actions for the seduction of the wife, where general reputation and cohabitation will not be sufficient. 1 The civil effects of marriage are the fol- lowing : 1. It confirms all matrimonial agreements, between the parties ; 2. It creates the civil affinity which each contracts towards the relations of the other ; Ed.) 78 ; i N. Chip. 254 ; 10 Humph. 61 ; i Gray, 119; see 20 Ohio, i. b-i Sharsw. Bl. Comm. 436, and noto q; 5 Ired. Eq. 487. C-2I N. H. 52; 22 Id. 553; 4 Johns. Ch. 343. d-4 Johns. 53; 22 Ala. N. S. 86; i balk. 120; i Sharsw. Bl. Comm. 438. e-2 Hagg. Cons. 104,246. f-Poynter Marr. & Div. c. q. g-s Paige, 43. h-See 6 Binn. 405 ; 4 Johns. 52; 7 Wend. 47; see 10 N. H. 388 ; 4 Burr. 2058 ; i How. 2iq, 234 ; i Gray, 119; 2 Me. 102. i-4 N. Y. 230; 3 Bradf. Sun. 369- 373 ; 6 Conn. 446; 29 Me. 323; 14 N. H. 450. 544 MARRIAGE AND DIVORCE. 3. The wife thereby acquires the name of her husband ; 4. In general the wife follows the condition of her husband ; 5. The wife on her marriage loses herdomi- cil and acquires that of her husband ; 6. The children acquire the domicil of their father; 7. It gives the children, who are the fruits of the marriage, the rights of kindred, not only of the father and mother, but all their kin; 8. It makes all the issue legitimate. Incestuous marriages are those prohibited by the law of nature. They are generally prohibited by statute. The marriage ceremony may be regarded either as a civil ceremony or a religious sacra- ment. HUSBAND'S OBLIGATIONS. He is bound to receive his wife at home, and should furnish her with all the necessaries and conveniences which his fortune enables him to do, and which her situation requires; but this does not include such luxuries as, according to her fancy, she deems necessaries. He is bound to love his wife and to bear with her faults, and, if possible, by mild means, to correct them ; and he is required to fulfil towards her his marital promise of fidelity, and can, therefore, have no carnal connection with any other woman, without a violation of his obligations. As he is bound to govern his house properly, he is liable for its misgovernment, and he may be punished for keeping a disorderly house, even where his wife had the principal agency, and he is liable for her torts, unless otherwise provided by statute. RIGHTS. Being the head of the family, the husband has a right to establish himself wherever he may please, and in this he cannot be controlled by his wife ; he may manage his affairs in his own way, buy and sell all kinds of personal property, without her control, and he may buy any real estate he may deem proper; but as the wife acquires a right in the latter, he cannot sell it discharged of her in- terest, except by her consent, expressed in the manner prescribed by the laws of the State where such lands lie. WIFE'S OBLIGATIONS. A wife is under obligation to love, honor, and obey her hus- band, and is bound to follow him wherever in the country he may choose to go and establish himself, provided it is not, for other causes, unreasonable. She is under obligation to be faithful in chastity to her marriage vow.i RIGHTS. A wife has a right to the love and protecting care of her husband ; she has a right to share his bed and board ; she can call upon her husband to provide her with neces- sary food and clothing according to her posi- tion in life, and if he neglects or refuses to do J-5 Martin (N. S.)6o. It-Bishop Marr. & Div. \ 549- 1-6 Harr. & J. 485 ; 9 N H 309 , 98. Mon. 49 ; 6 W. & S. 85. m-i Hagg Eccl. 773 ; i Curt. Eccl. 444 ; a 13. Mon. 143; a Paige Ch. 8; n Id. 66. 11-9 Mo. so, she can procure them on his account. Ai to her rights, on decease of her husband, in real estate, etc., see GENERAL STATUTES. Any woman who shall have been married out of this Commonwealth, if her husband afterward become a resident thereof, enjoys all the rights as to property, which she may have acquired by the laws of any other State, Terri- tory, or country, or which she may have ac< quired by virtue of any marriage contract or settlement made out of this State. DIVORCE is the dissolution or partial suspension by law of the marriage relation. It is regulated by the statutes of the different States, and the various statutes are by no means uniform. Divorces are allowed for adultery, cruelty, desertion for a specified period, drunkenness if habitual, and other causes. In some States divorces are not al- lowed, are allowed for adultery only, and in others for any of the above or other causes. For specific information recourse must be had to the general statutes of the particular State. ALIMONY. Of those consequences which result from the direction or order of the court, the most important are Alimony, or the allow- ance which a husband, by order of court, pays to his wife, living separate from him, for her maintenance. The allowance may be for her use either during the pendency of a suit, in which case it is called alimony pendente lite, or after its termination, called permanent ali- mony. k Alimony is an allowance, not a sum of money nor a specific proportion of the hus- band's estate, given absolutely to the wife ; it is a continuous allotment of sums payable at reg- ular intervals for her support from year to year. 1 Alimony pendente lite is granted very much as a matter of course, unless the wife has sufficient separate property, upon the in- stitution of a suit, either for the purpose of obtaining a divorce from the bonds of matri- mony, a sentence of nullity, or a separation from bed and board, and whether the wife be plaintiff or defendant; for it is improper for the parties to live in matrimonial cohabitation during the pendency of such a suit, whatever may be its result,? and therefore, the husband who has all the money, and the wife none, is bound to furnish her, whether plaintiff or de- fendant, with means to defray her expenses in the suit; otherwise she might be denied jus- tice.i Alimony, especially permanent alimony, pertains rather to a separation from bed and board than to a divorce from the bond of matri- mony. Indeed, it is generally allowed in the latter case only in pursuance of statutory pro- visions. 11 It is provided by statute in several States that, in case of divorce, the court may order the husband to restore to the wife, when she is the innocent party, and sometimes even when she is not, a part or the whole of the property which he received by the marriage. 539; 18 Me. 308; i Band Ch. ior. o-i Edw. Ch. 255. n-i Sandf. Ch. 483. q-2 Barb. 146; Walk. Ch. 421 ; 2 Md. Ch. 335, 393 ; seei tones N. C. 528 ; Bishop Marr. r- Bishop Marr. & Div. g 563. MARRIAGE AMD DIVORCE. 545 In some cases, also, the court is authorized to divide the property between the parties, this being a substitute for the allowance of alimony. For further particulars, recourse must be had to the statutes in question.' To entitle a wife to permanent alimony, the following conditions are requisite : I . Proof of a legal and valid marriage.' 2. A subsistence of the relation of husband and wife ;' but this requisite is not generally indispensable." 3. 'The wife must be separated from the bed and board of her husband by judicial decree, as Voluntary separation, for whatever cause, is in- sufficient. Permanent alimony must, as a gen- eral rule, be awarded by the same decree that grants the separation, or at least in the same suit, for it is not, in general, competent to main- tain an independent or subsequent suit for that purpose.* 4. The wife must not be the guilty party. w The amount to be awarded for alimony de- pends upon a great variety of considerations, ;md is governed by no fixed rules. 1 The ability of the husband is a circumstance of more importance than the necessity of the wife, especially in respect to permanent alimony; and in estimating his ability, his entire income, whether derived from his property or personal exertions, will be taken into consideration.? If the wife has separate property, 1 or derives in- come from her personal exertions, this will also be considered. The method of computation is to add the wife's annual income to her hus- band's; consider what, under the circum- stances, should be allowed her out of the aggregate, then, from the sum so determined, deduct her separate income, and the remainder will be the annual allowance to be made her. There are various other circumstances besides the ability of the husband; as, whether the bulk of the property came from the wife, or belonged originally to the husband,' or was accumulated by the joint exertions of both subsequent to the marriage. b Whether there are children to be educated and supported, and upon whom their support and education de- volves.* The condition in life, employment, health, and place of residence of the husband, as demanding a larger or smaller sum for his own support ; 4 the circumstance, condition in life, health, necessary expenditures, and place of residence of the wife; 8 the conduct and demeanor of the wife towards the husband who desires cohabitation/ and his as well; the extent and nature of the husband's* or wife's r-See also Bishop Marr. & Div. cc. 28-30. s-i Rob. Eed. 484; 3 Add. Eccl. 484 : 4 H & M. 507; to Ga. 477: 5 Sess. Cas. (N. S.) 1288. t-i Lee Eccl. 621; i Blackt. 300; I Iowa, 440; 2 Hagg. Cons. 395; Srxxt. 96; 13 Mass. 464; 5 Pick. 461 ; 18 Me. 308; 4 Barb. Barb. Ch. 311 ; a III. 242 ; Wright, 514 ; 6 B. Mon. 496 ; ii Ala. (N. S.) 763; 24 N. H. 564. x-4 Gill, 105; 7 Hill, 107; i Green, 90; i Iowa, 151; 10 Ga. 477. y-3 Curt. Eccl. 3, 41 ; i Rich. Eq. 282; 2 B. Mon. 370; 5 Pick. 427; t R. I. 212. z-2 Phill. Eccl. 40; 2 Add. Eccl. i. -a Liu. 337; 4 Humphr. 510. b-xi Ala. (N. offence ; the aggravation or encouragement of the cause of separation by either, and what- ever other circumstances or considerations ad- dress themselves to the discretion of the court. The proportion of the joint income to be awarded for permanent alimony ranges from one-third to one-half. In alimony pendente lite, it is not usual to allow more than about one- fifth. 11 Generally, a less proportion will be al- lowed out of a large estate than a small one where the question is on alimony during the suit, for then the wife should live in seclusion, and wants only a comfortable subsistence. 4 The amount of alimony is liable at any time to be diminished or increased at the discretion of the courU Alimony must secure to the wife as wife, a maintenance separate from her husband; an absolute title in specific property, or a sale of a part of the husband's estate for her use, cannot be decreed or confirmed to her as alimony." Nor is alimony regarded, in any general sense, as the separate property of the wife ; hence she can neither alienate nor charge it; 1 if she suffers it to remain in arrears for more than one year, she cannot generally recover such arrears;" 1 if she saves up anything from her annual allow- ance, upon her death it will go to her hus- band ; n if there are any arrears at the time of her death, they cannot be recovered by her executors.* Her right to alimony ceases upon the death of her husband,? he being bound to support her only during his life ; it ceases also upon reconciliation and cohabitation. The extent, incidents, and nature of alimony is largely regulated by statute, and all observa- tions concerning them should be very carefully received in conjunction with the statutes of the particular State where the subject is to ba considered.' CHILDREN CUSTODY OF. The tribunal hearing a divorce cause is generally authorized by statute to direct, during its pendency and afterwards, with which of the parties, or with what other person, the children shall remain, and to make provision out of the husband's es- tate for their maintenance. There are few positive rules upon the subject, the matter being left to the discretion of the court, to be exer- cised according to the circumstances of each case. The general principle is to consult the welfare of the child, rather than any supposed rights of the parents, and as between the pa- rents to prefer the innocent to the guilty. In S.) 763; 3 Harr. (Del.) 142. c-3 Paige Ch. 267 ; ^ Id. 643: 3 Green. 171 ; 2 Litt. 337; 10 Ga. 477. 332. v- Bishop Marr. & Div. g 350. w-Bishop Marr. & Div. J J54. at-Bishop Marr. & Div. \ 389. y-Bishop Marr. It Div. 2 660; 37 Miss. 630, 637 ; 17 Mo. 87 ; 6 lad. 229 ; PROPERTY. In regard to rights of property as between husband and wife, a sentence of divorce leave's them as it finds them. Conse- quently, all transfers of property which were actually executed, either in law or fact, continue undisturbed ; for example, the personal estate of the wife, reduced to possession by the hus- band, remains his after the divorce the same as before. But it puts an end to all rights de- pending upon the marriage and not actually vested: as, dower in the wife, all rights of the husband in the real estate of the wife, and his right to reduce to possession her choses in ac- tion.* In respect to dower, however, it should be observed thatacontrary doctrinehas been settled in New York, it being there held that immedi- ately upon the marriage being solemnized the wife's right to dower becomes perfect, provided only she survives her husband." VALIDITY OF DIVORCE. Numerous and dif- ficult questions are constantly arising in regard to the validity in one State of divorces granted by the courts or legislature of another State. The following propositions require the highest consideration :* I. The tribunals of a country have no jurisdiction over a cause of divorce, wherever the offence may have occurred, if neither of the parties has an actual bona fide domicil within its territory. 2. To entitle the court to take jurisdiction, it is sufficient for one of the parties to be domiciled in the country ; both need not be, neither need the citation, when the domiciled party is plaintiff, be served personally on the defendant, if such personal service cannot be made. 3. The place where the offence was committed, whether in the country in which the suit is brought or a foreign country, is immaterial. 4. The domicil of the parties at the time of the offence committed is of no consequence, the jurisdiction depending on their domicil when the proceeding is insti- tuted and the judgment is rendered. 5. It is immaterial to this question of jurisdiction in what country or under what system of divorce laws the marriage was celebrated. It should be observed, however, that the last proposition but one is not sustained by authority in Penn- sylvania and New Hampshire, it being held in those States that the tribunals of the country alone where the parties were domiciled when the delictum (fault or offence) occurred have jurisdiction to grant a divorce. b And in regard to the second proposition, it is to be observed that, without personal citation within the StaU, the divorce is not of binding effect in any othac State. Master. See APPRENTICESHIP. Master of Ship. See BAILMENTS; CONTRACTS. Material Men. See LIENS. Mayhem. See CRIMINAL LAW. 6 Watts & S. Penn. 85, 88; 4 Harr. Del. 440; 8 Conn. 541 ; 10 Id. 225 : 2 Md. 429 ; 8 Mass. 09 ; 10 Id. 260; 10 Paige Ch. N. Y. 420, 424 ; 5 Blackf. Ind. 309 ; 5 Dan. Ky. 254 ; 6 Watts Penn. 131. z-4 Barb. N. Y. 102 ; 4 N. Y. 95 ; 6 Du. N. Y. 102, 152, 153. a-Bishop Marr. & Div. Ch. 32. fo-7 Watts, Penn. 349 ; 8 Watts & S. Penn. 251; 6 Penn. St. 449; see 30 Penn. St. 412,416; 34 N. H. 518, and cases there cited ; 35 Id. 474 ; and for the law of Louisiana see g La. Ann. 317. NECESSAR1 ES NO VATION. 547 Measure. See WEIGHTS AND MEASURES. Measure of Damages. See DAMAGES. Medical Evidence. See EVIDENCE Medical Law. See LAW. Memorandum. See CONTRACTS ; COPYRIGHT. Merger. See CRIMINAL LAW; ESTATES. Military Law. See LAW. Miscarriage. See MEDICAL LAW. Misdemeanor. See CRIMINAL LAW. Misrepresentation. See CONTRACTS. Mistake. See CONTRACTS. Mitigation. See DAMAGES. Modification. See CONTRACTS. Money. See UNITED STATES STATUTES AT LARGE. Mortgages. See CONVEYANCES. Mortmain. See CORPORATIONS. Mother, Mother-in-Law. See PERSONS; RE- LATIONS. Municipal Corporations. See CORPORA- TIONS. Municipal Law. See LAW. Murder. See CRIMINAL LAW. Mite. See PERSONS. Mutilate. See CRIMINAL LAW, " Mayhem." Naval Law. See ADMIRALTY ; MARITIME LAW. NECESSARIES. See APPRENTICESHIP; CON- TRACTS ; ETC. NECESSARIES. The term "necessaries" is not confined merely to what is requisite barely to support life, but includes many of the con- veniences of refined society. It is a. relative term, which must be applied to the circum- stances and conditions of the parties.* Orna- ments and superfluities of dress, such as are usually worn by the party's rank and situation in life, b some degree of education, lodging and house-rent, 4 horses, saddles, bridles, liquors, pistols, powder, whips, and fiddles have been held not to be necessaries. 6 The rule for determining what are neces- saries is that whether articles of a certain kind or certain subjects of expenditure are, or are not such necessaries as an infant may contract for, is a matter of law, and for instruction by the court ; but the question whether any par- ticular things come under these classes, and the question also as to the quantity, are generally matters for the jury to determine/ Infants may contract for necessaries,s but are not liable for borrowed money, though ex- pended for necessaries. 11 Necessaries for the infant's wife and children are necessaries for himself. 1 A wife is allowed to make contracts for necessaries, and her husband is generally responsible upon them, because his assent is presumed ; and even if notice be given not to trust her, still he would be liable for all such necessaries as she stood in need of, but in this a-7 S. & R. 247. b-i Campb. 120; 3 Id. 326 ; 7 C. & P. 52; i Hodg. 3I ; 8 T. R. 578; i Leigh. N. P. 135. c-4 M. & W. 727; 6 Id. 48; loVt. 683; see 10 Barb. 489 ; Chitty Contr. 140; i Parsons' Contr. 246. d-2 Bulstr. 69 ; i B. & P. 340 ; see 12 Met. (Mass.) 559 ; 13 Id. 306; i M. &W. 67; 56. B. 606. e-i Bibb. 519; 1 M'Cord, 572; 2 Nott. & M'Cord, 524; 2 Humph. 27 ; 2 Str. iioi ; i Mann. & G. 550; and see 7 C. & P. 52 ; 4 Id. 104; Holt, 77; Cart. 216; n N. H. 51; 8 Exch. 680. f-i Parsons' Contr. 241 ; 10 Vk 225 ; 12 Met. (Mass.) 559 ; n N. H. 51 ; i Bibb. 519; 2 Humph. 27 ; 3 Day, 371 ; i M. & G. 550 ; 6 M. & W. 42 ; 6 C. & P. 690. g- 4 M. & W. 727; 13 Id. 252. ll-i Salk. 279 ; 2 Esp. 472, n. ; 10 Mod. 67 ; I Bibb. 519 ; 7 W. & 8.83,88; 10 Vt. 225; see i P. Wms. 558; 5 Esp.fiS; 7 N. H. 368; 2 Hill'S. C.)4oo; 32 N. H. 345. i-Str. 168; Com. Dig. Enfant (B. 5); I Sid. 112; 2 Starkie Ev. 725 : 3 Day, 37 ; i Bibb. 519 ; 3 Nou. &. M'C. 524 ; 9 Johns. 141 ; 16 Mass. 31 ; 14 B. case the creditor would be required to show she did stand in need of the articles furnished) But if the wife elopes, though it be not with an adulterer, he is not chargeable even for necessaries ; the very fact of the elopement and separation is sufficient to put persons on inquiry, and whoever gives credit to the wife afterwards gives it at his peril. k Negligence. See ACTS; BAILMENTS; CON- TRACTS; ETC. Negligent Escape. See CRIMINAL LAW, "Ar- rest." Negotiable Instruments. See BONUS, NOTES, AND BILLS. Neutrality. See INTERNATIONAL LAW. New and ITseful Inventions. See PA- TENTS. New Trial. See EVIDENCE; PRACTICE. Newly Discovered Evidence. See EVI- DENCE. Night Walkers. See CRIMINAL LAW. Nominal Damages. See DAMAGES. Nonfeasance. See ACTS. Nonsense. See CONVEYANCES, "Wills." Notes. See BONDS, NOTES, AND BILLS. Notice. See BONDS, NOTES, AND BILLS. Notice of Protest. See BONDS, NOTES, AND BILLS. NOVATION. See CONTRACTS, ETC. NOVATION is the substitution of a new obli- gation for an old one, which is thereby ex- tinguished. A transaction, whereby a debtor is discharged from his liability to his original creditor, by contracting a new obligation in favor of a new creditor, by the order of his original creditor. The term novation is rarely employed. The usual common law equivalent is assignment and sometimes merger. Still, this form of contract found its way into com- mon law treatises as early as Fleta's day, by whom it was called innovation If A. owes B. fifty dollars ; B. owes C. the same sum, and, at the request of C., orders A. to pay that sum, when it shall fall due, to C. ; to this A. consents, and B. discharges A. from all obligation to him. b And if A. owes B., and B. owes C., and it is agreed by these three parties that A. shall pay this debt to C., and A. is by this agreement discharged from his debt to B., and B. is also discharged from his debt to C., then there is an obligation created from A. to C., and C. may bring an action in his own name. The mutual assent of all three parties is necessary to make an effectual novation, or substitution." 1 This new promise Mon. 232 ; Bac. Abr. Infancy (i) ; see 13 M. & W. 252. J-i Salk. 118; 2 Ld. Raym. 1006. k-i Salk. 119; Str. 647 ; i Sid. ico ; i Lev. 4:11 Johns. 281 ; 12 Id. 293 ; 3 Pick. 289; a Halst. 146; 2 Kent Comm. 123; Starkie Ev.6g6; Bac. Abr. Baron (y Feme (H.); Chitty Contr. Index; i Hare & W. Sel. Dec. 104, 106 ; Hammond Part. 217. a-See Fleta lib. 2, c. 60, $ 12 ; Bracton lib. 3, c. 2, $ 13 ; but in Bracton we have novatwttent for inno- vationem. b-A case of novation is put in Tatlock vs. Harris ; 3 T. R. 180. " Suppose A. owes B. :oo, and B. owes C. 100, and the three meet and it is agreed between them that A. shall pay C. the 100, B.'s debt is extin- guished, and C. may recover the sum against A." I Parsons' Contr. Ch. 13:2 Barb. 349. c-3 T. R. 174 ; J B. & Aid. 228; 7N. H.397; sB.&Ad.925; sBingh.N. C. 883 ; i Mo. & P. 8 ; 2 Mann. & G. 644 ; 17 Mass. 400 ; 3 Scott N. R. 125 ; 3 Barb. 209 ; 9 Bingh. 372 ; 3 B. & C. 842 ; 5 A. & E. 115, 116; 3 Greenl. (a Ed.) 346, . ; 20 Vt. 25 ; i E. L. & E. 153, . 14 Conn. 141 ; 5 Wheat, 277 ; ?o Pick, 15. d-4 C. & P. 93 ; * Id. 347 NOVATION NUISANCE. is not within the provisions of the statute of frauds, relating to a promise to pay the debt of another;* for here the debtor contracts an entirely new debt of his own, the consideration of which is the absolute discharge of the old debt. But there must always be a debt once existing and now cancelled, to serve as a consideration for the new liability. The action in all cases is brought on the new agreement. But in order to give a right of action there must bean extinguishment of the original debt.f A Xiidum Pactum. See CONTRACTS, "Naked Agreements." JS'ull and Told. See CONTRACTS, ETC. NUISANCE. See DAMAGES ; CRIMINAL LAW. A NUISANCE is that which incommodes or annoys ; something that produces inconvenience or damage. Nuisances are either private or public. Private when it affects individuals, as when one man erects a house so near his neighbor as to throw the water off the roof upon his neighbor's land or house, or to inter- cept the light that his neighbor before enjoyed. Public, when it annoys citizens in general, as obstructions of the highway.* It is difficult to say what degree of annoy- ance constitutes a nuisance. If a thing is calculated to interfere with the comfortable enjoyment of a man's house, it is a nuisance. 6 In relation to offensive trades, it seems that when such a trade renders the enjoyment of life and property uncomfortable it is a nui- sance, for the neighborhood have a right to pure and fresh air.* A thing may be a nuisance in one place which is not so in another ; therefore the situ- ation or locality of the nuisance must be con- sidered. A tallow-chandler setting up his business among other tallow-chandlers, and increasing the noxious smells of the neighbor- hood, is not guilty of setting up a nuisance unless the annoyance is much increased by the new manufactory." Such an establishment might be a nuisance in a thickly-populated town of merchants and mechanics where no such business was carried on. Carrying on an offensive trade for twenty years in a place re- mote from buildings and public roads does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of and travellers upon which it is a nuisance.' The trade may be offensive for noise,* or smell, h or for other reasons. 1 Private nuisances may be to corporeal inheri- e-3 Bingh. (N.C.)883; 3 Barb. 209; sT. R. 174. f-4 B. & C. 163 ; i M. & W. 124 ; 14 111. 34 : 4 La. An. 281 : 15 N.H. 129. a-3 Bl. Comm. 166,215; i Hawk. PI. Cr. 197. fo-jjur. N.S. 571. C-i Burr. 333; 5 Esp. 217. d-aCarr. & P. 485; 6 Rog. N. Y. 61. e-Peake, 91. f-6 Gray, Mass. 473; see 7 Blackf. Ind. 534; 2 Carr. & P. 483. If -2 Show. 327; 22 Vt. 321; 6 Cush. Mass. 80. n-2 Carr. & P. 48^; 13 Mete. Mass. 365; i Den. N. Y. 524. l-i Johns. N. Y. 78; i Swan, Tenn. 213; Thach. Crim. Cas. Mass. 14; 3 East, 192; 3 Jur. N. S. 570. J-Fitz- herbert, Nat. Brev. 184. lt-9 Coke, 58; but see Wash- burn, Easements, l-o. Coke, 58. m-Fitzherbert, Nat. Brev. 183 ; a Rolle, Abr. 140. x-i Campb. 463 ; 6 East. 208. ii-See Washburn, Easements. O-i Burr. 337 : 4 Esp. zoo ; j Strange, 686, 704 ; 2 Chitty, Crim, Law, tances ; as, for example, if a man should build his house so as to throw the rain-water which fell on it on my land;J or erect his building, without right, so as to obstruct my ancient lights ; k keep hogs or other animals so as to incommode his neighbor and render the air unwholesome; 1 or to incorporeal hereditaments: as, for example, obstructing a right of way by ploughing it up, or laying logs across it, and the like; m or obstructing a spring; 1 interfering with a franchise, as a ferry or railroad, by a similar erection Unlawfully made. To constitute a public nuisance, there must be such a number of persons annoyed that the offence can no longer be considered a private nuisance; this is a fact, generally, to be judged of by the jury. Public nuisances arise in consequence of following particular trades, by which the air is rendered offensive and nox- ious :P from acts of public indecency, as bath- ing in a public river in sight of the neighboring houses ;"i or for acts tending to a breach of the public peace, as for drawing a number of per- sons into a field for the purpose of pigeon- shooting, to the disturbance of the neighbor- hood; 1 " or keeping a disorderly house; 1 or a gaming house; 1 or a bawdy house; or a dan- gerous animal, known to be such, and suffering him to go at large, as a large bulldog accus- tomed to bite people ; T or exposing a person having a contagious disease, as the small-pox, in public ; w and the like. The bringing a horse infected with the glanders into a public place, to the danger of infecting the citizens, is a misdemeanor at common law. x The leaving unburied the corpse of a person for whom the defendant was bound to provide Christian burial, as a wife or child, is an indictable nuisance, if he is shown to have been of ability to provide such burial.^ The remedies are by an action for the dam- age done, by the owner, in the case of a private nuisance ;* or by any party suffering special damage, in the case of a public nuisance ; by abatement by the owner, when the nuisance is private ; b and in some cases when it is public, if no riot is committed ; by injunction or by indictment for a public nuisance." 1 Nuncupative Will. See CONVEYANCES, "Wills." Oath. See EVIDENCE. Obligations. See CONTRACTS. Obstructing Process. See CRIMINAL LAW. Office and Officer. See GENERAL STATUTES; UNITED STATES STATUTES AT LARGE. Omission. See ACTS. 607, n. p-Croke Car. 510; Hawkins PI. Cr. b. i, c. 75, 10 ; 3 Ld. Raym. 1163; i Burr. 333; i Strange, 686. q-i Russell, Crimes, 302 ; 2 Campb 89 ; Sid. 168. r- 3 Barnew & Aid. 184. s-i Russell, Crimes, 298. t-t Russell, Crimes, 299; Hawkins, PI. Cr. b. i, c. 75, 6 u-Hawkins PI. Cr. b. i, c. 74, i ; Bacon, Abr. Nui- sance (A..); 9 Conn. 350. v-4 Burn. Just. 578. w-4 Maule & S. 73, 272. x-Dearsl. Cr. Cas. 24 : i Hurlst. & N. Exch. 299. y-2 Den. Cr. Cas. 325 ; see 3 Jur. N. S. 570. -3 Blackstone, Comm. 220. a-4 Wend. N. Y. 9 ; 3 Vt. 529; i Penn. St. 309 ; Carth. 194; Vaugh. 341 ; 3 Maule & S. 472 ; 2 Bingh. 283; i Esp. 148. I>-2 Rolle Abr. 565 ; Rolle, 394 ; 3 Bulstr. 198; see 3 Dowl. & R. 556. -9 Coke, 55; 2 Salk. 458; Blaqkstone Comm 5. |-a Bishop. Cr. L. \ 856, OWNER PARTNERSHIP. 549 Opinion. See EVIDENCE. Ordinances. See EVIDENCE. Ordinary Skill. See CONTRACTS. Original Entries. See ACCOUNTS. OWNER. See ASSIGNMENT ; BAILMENTS; SALBS; ETC , ETC. AN OWNER is he who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant, which restrains his right. Although there can be but one ab- solute owner of a thing, there may be a quali- fied ownership of the same thing by many. Thus, a bailor has the general ownership in the thing bailed, the bailee the special ownership. The right of the absolute owner is more ex- tended than that of him who has only a quali- fied ownership ; as, for example, the use of the thing. Thus, the absolute owner of the estate, that is, an owner in fee, may cut the wood, de- molish the buildings, build new ones, and dig wherever he may deem proper for minerals, stone, plaster, and similar things, which would be considered actionable and would not be allowed in a qualified owner of the estate, as a (essee or a tenant for life. The word owner, when used alone, imports an absolute owner. 8 When there are several joint owners of a thing as, for example, of a ship the majority of them have a right to make contracts in re- spect to such thing in the usual course of busi- ness or repair, and the like, and the minority will be bound by such contracts.' Pardon. See CRIMINAL LAW. Parents. See PERSONS; RELATIONS. Parol. See EVIDENCE ; LEASES. Part-Owners. See OWNER. Partial Loss. See INSURANCE. Particular Estate. See ESTATES. Particular Lien. See LIENS. Parties. See BONDS, NOTES, AND BILLS; CON- TRACTS, ETC. Partners. See PARTNERSHIP; MEMBERS. PARTNERSHIP. See ASSIGNMENTS; BILLS, BONDS, AND NOTES; CONTRACTS; CONVEYANCES, ETC., ETC. For FORMS, see CONTRACT FORMS, ante. GENERAL PARTNERSHIP. PARTNERSHIP is a voluntary contract between two or more persons for joining together their money, goods, labor, and skill, or any or all of them, in some lawful commerce or business, under an understanding, express, or implied from the nature of the enterprise, that there shall be a communion of profit and loss between them.* The law of partnership, as administered in England and the United States, rests on a foundation composed of three materials the common law, the law of merchants, and the Roman law. b e-See2Ohio,i23. f-HoH,586; iBellComm.(5thEd.) 510 ; 5 Whart. 366. a-Collycr Partn. <> 2 ; 10 Me. 489 ; 3 Harr. 485 ; 5 Ark. 478. b-Collyer Partn. j| i. 0-25 Vt. 390; 2 Met. (Ky.) 258. d-sB. & C. 108; 5 Pick. 38; 10 B. &C. 128; i La. An. 457. e-Collyer Partn. 56. f- Davies Dist. Ct. 323 ; 3 Kent Comm. 30 ; Story Partn. j| 81 ; 2 Ga. 18 ; 3 C B. 641, 651 ; 9 Id. 458. g-i Dougl. i?i- h-3 M. &W.357- i-9 C. B. 431 ; Eng. C. L. Vol. 67; 19 L. J. ; C. P. 243. j-io B. & C. 140; 6 Bingh. 793. fc-6 Bingh. 792. 1-2 Binjh. 170. ni-CoIl- A partnership exists when two or more per- sons combine their property, skill, and labor, or one or more of them, in the transaction of busi- ness, for their common profit. When a part- nership is formed by written articles, it is con- sidered as beginning at the date of the articles, unless they contain a stipulation to the con- trary.* As a general rule, a partnership may exist in any business or transaction which is not a mere personal office, and for the performance of which payment may be enforced. 6 It may be created for a special purpose, or confined by the parties to a particular line of business, or even a single transaction/ One partner may con- tribute all the money or all the stock, or all the labor or skill necessary for the purposes of the firm; but in order to make people liable as partners to each other, it is necessary that there should be a community of profits,' although one of them may stipulate to be indemnified against loss. h This, however, respects their mutual claims, for however they may stipulate with each other, all who take a share in the profits, 1 and all who allow themselves to be de- scribed and held out as partners, are liable as such to those to whom they have so held them- selves out.J Supposing the parties to have be- come partners, the result is that each indi- vidual partner constitutes the others his agents for the purpose of entering into all contracts for him in the scope of the partnership concern, and consequently, that he is liable to the perform- ance of all such contracts in the same manner as if entered into personally by himself.* It is not essential to the existence of a partnership that there should be any joint capital or stock. 1 Sometimes a partnership exists between parties merely as the managers and disposers of the goods of others. A partnership is presumed to be general when there is no stipulations, or no evidence, from the course of business, to the contrary." There may be a partnership to trade in land. A ship as well as any other chattel, may be held in strict partnership.? But ships are generally owned by parties as tenants in common ; and they are not, in consequence of such ownership, to be considered as partners.' The same is true of any other species of prop- erty in which the parties have only a com- munity of interest. r CONTRACT. The formation of a con- tract of partnership does not require any par- ticular formality. It is, in general, sufficient that it is formed by the voluntary consent of the parties, whether that be express or implied; whether it be by written articles, tacit approba- yer Partn. j> 17 ; 4 B. & Aid. 663; 15 Johns. 409, 442. H-i4 How. '589 ; 3 Foster (N. H.) 438. 0-21 Me. 421, 422; Dav. Dist. Ct. 320; 7 Penn. St. 165; 10 Cush. 458 ; 4 Conn. 568 ; Story Partn. g 82, 83. p-3 Kent . 154 ; Collyer Partn. j> 1185 ; 12 Mass. 54; 6 Me. 77; 15 Id. 427. q-Collyer Partn. \ 1185 ; 6 Me. 77; 6 Pick. 120; 24 Id. 19; Abb. Shipping, 97; 14 Conn. 404; 14 Penn. St. 34, 38 : T. Raym. 15 ; 8 Gill. Oji. r-Poth. 20 ; 24 Id. 19; Abb. Shipping, 97 ; 14 Conn. 404; j* i tun. St. 34, 38 : T. Raym. 15 ; 8 Gill. 92. r-Poth. Partn. f n. 2 ; Story Partn. 2 3 ; i Lindley Partn. 30, et sea. ; 8 Exch. 825 ; 21 Beav. Rolls, 536 ; 24 Id. 283 ; C. B. (N. S.) 357. 55 PARTNERSHIP. tion, or by parol contract, or even by mere acts.* Although ordinary partnerships may be formed without any written contract, and the acts and words of the parties are ordinarily suf- ficient for that purpose, yet, if the object of the company be to speculate in the purchase and sale of land, the positive rules of law and the statute of frauds require the partnership agree- ment to be in writing.* But this applies only to the contract between the parties, for as to third persons the partnership may be proved like any other. A partnership, in general, is constituted between individuals, by an agree- ment to enter together, into a general or a par- ticular business, and share the profits and losses thereof.' The criterion of a partnership is, whether the parties are to participate in profit. If the actual contract give a claim upon the profits, or the application of them, that is a part- nership.* A participation in the uncertain profits of trade renders one a copartner in re- spect to the liabilities of the concern to third persons. 1 But the mere sharing of profits, with- out any connection whatever in the business, is not enough to constitute a partnership.^ Thus, if one firm agrees with another, that each shall continue and carry on its business independ- ently, but that the profits and losses of each firm shall be divided between the two, the two firms do not enter into partnership, nor do the members of one firm become partners with the members of the other. 1 There need not, how- ever, be a community of interests in the prop- erty, if there be in the profits and some con- nection in the business." But a setting apart a portion of the profits to pay the debt of a third person, does not make him a partner. b So, too, a joint purchase, but for the purpose of distinct and separate sales by each party on his own ac- count, does not constitute the purchasers part- ners.' There are but few cases where a writing is necessary. Under the statute of frauds, where there is an agreement that a partnership shall commence at some time more than a year from the making of the agreement, a writing is necessary. 4 With respect to that part of the statute of frauds relating to lands, it has been held that a partnership may be constituted with- out writing,' and that if a partnership is proved to exist it may be shown that its property con- sists of land, although there is no signed agree- ment between the parties.' So it has been held, that an agreement to form a partnership for the purpose of buying and selling land may be proved by parol.' But this latter proposition is 8-Story Partn. g86; 3 Kent Comra. 27; Dav. Dist. Ct. 320 ; 4 Conn. 568 ; 7 E. L. & E. 305 ; a Barb. Ch. 336. t-3 Sumner, 435 ; iMunf. 510; 15 Penn. 177. u- Davies, 320. v-i8 Ves. 300. w-i? Ves. 403 (Sumner's Ed.) and note, p. 404; 10 Hill. 526; i Foster (N. H.) 175; 14 Barb. 474. x-2 Sandf. 7 ; 15 Conn. 67; i Hill, 526; 4 M. & Sel. 240; a B. & C. 401; 4 East. 144; 4 B. &C. 867; 6 Conn. 347; 6 Greenl. 76; 6 Pick. 124; 3 Mason 138; aa Vt. 181 ; 31 Id. 395. y-2o N. Y. (6 Smith) 93. f-s Sandf. 113; i Seld. 186. a- 19 Barb, aaa ; 96 Ala. 133. b-3 Rich. L. 37. -38 Me. 553 ; 15 Mo. 481. d-5 B. & C. 108. e-2o Beav. Rolls. 449. f-s Ves. Ch. 309 ; 10 Cush. 458. -5 Hare Ch. 369; a Phl. a(*, a Hal} & F. 224. b-See Day. not generally conceded. The contrary doc. trine has the weight of learned opinion.* Persons may be copartners as to third parties and brought within all the liabilities of part- nership as to them, who are not partners be- tween themselves. 1 For whether they are partners is determined chiefly by their own in- tention ; but whether they are partners in re- spect to third parties, is determined by a con- sideration of this intention, and also of that actual participation of profits which is held to require them to participate in the losses, because it diminishes the fund from which the losses are to be paid ; and also of the way and de- gree in which the person sought to be charged as partner has been held out to *he world as such, so that the person seeking to charge him had good reason to believe the debt of the partnership carried with it his responsibility .J Though a man really have no interest in the firm, yet if he suffer himself to be held out to the world as a member of it, he thereby author- izes those to whom he has been held out to treat him as a contracting party . k To make a man liable as nominal partner, he must have been held out as such to the plaintiff} A con- tract to pay one employed in certain business a salary equal in amount to a certain proportion of the profits, will not make such a person a partner. The question of profits is of impor- tance only in determining the amount of the salary. Neither will a certain salary, together with a certain per cent, upon the profits, make the receiver a partner. An agreement by which a person is to receive a certain por- tion of the profits for his salary, does not con- stitute a partnership, such person having no special interest in the profits themselves, as profits. Nor do factors and brokers for a commission on the profits, nor a master of vessel engaging for the share of the profits, become partners, and are not, therefore, liable for the debts, as a partner is. It is sometimes difficult to distinguish between partnership and tenancy in common. In general, if the property owned jointly is so owned for the purpose of a joint business, and is so used, and the profits result- ing from a common fund, it is partnership property; otherwise not.P Though partnerships are usually formed by participation in profits and losses, partners may agree as to any way of dividing the losses ; that a partner shall have his share of the pro- fits and not be liable for losses. And this Dist. Ct. 320; Story Partn. 9 83 ; 3 Sumn. C. C. 458- 471 ; 2 De Gex & J. 52. i-6 S. & B. 333 ; 4 East. 144 ; 14 Vt. 540; 4 Penn. St. 30. J-22 Vt. 511 ; 4 Harring- ton, 90; ii Humph. 271. Et-io B. & C. 20. l-io B. & C. 141 ; i M. & R. 126 S. C. in-is S. & R. 137 ; 5 E L. & E. 67 ; i Barr. 255 ; 6 Met. 82 ; 13 Barb. 302 ii Id. 309. n-i2 Conn. 169; i Denio, 337; S. C. 3 Comst 132 ; 20 Wend. 70 ; 4 Sandf. 311 ; i Foster (N. H.; 93; a G. Greene. 574 ; 10 Texas, 193 ; 2 Md. i ; 3 Rich L. 37; 2 Strobh. 471 ; 6 Ala. 215; 7 Leigh, 115; 9 C B. 431 ; 3 Harr. & Johns. 505 ; 6 Conn. 351. 0-15 Mass. 370; 6 Pick. 335. p-q Johns. 470'; 14 Id. 318 : i Gray, 289; i Hill, 234; 15 Wend. 379; 24 Pick. 191; 23 Vt. 308; ii Ohio, 364; 20 Ala. 212; 3 Mason, 138; 6 Greenl. 76; 6 rick. 124; 10 Vt. 170; 31 Id. 395. PARTNERSHIP. agreement is valid as between themselves. And this agreement will be equally efficacious, whether stated in articles, or proved by circum- stances, or otherwise. For partners among themselves may make whatever bargain they choose. But no such agreement will prevent such partner from being liable for the debts of the partnership, unless the creditor knew of this bargain between the partners, and with this knowledge gave the credit to the other partners only.P The liability of a partner springs either from his holding himself out to the world as a partner, or from his participation in the busi- ness and its profit or loss. If these two cases meet, as is usually the case, they strengthen each other; but either of them alone is, in general, sufficient to create this liability."! There is no liability as a partner, where there is neither a participation in the profits, nor any such use of the defendant's name permitted by him as justifies the plaintiff in selling to others on his credit, although there may be in some way or measure a community of interest.' Proof of existence. Whether a partner- ship exists or not in a particular case is not a mere question of fact, but one of mixed law and fact. It is, nevertheless, generally to be decided by a jury. 1 The existence of a part- nership may be proved by showing I. A distinct agreement for a partnership : or, 2. An agreement to share profit and loss ; either of these will be conclusive : or, 3. An agreement to share profits which will be strong evidence of a partnership: or, 4. Circumstances suf- ficient to establish a ^ 112; Cowp. 445: 2 Ves. & B. Cn. Ir. 300; 3 Kent Comm. 59. 8-24 Pick. 89; see i Bland Ch. 408 ; 2 Ashm. 305 ; Poth. Partn. . 148. t-Collyer Partn. 1 to. note ; 3 Kent Comm. 59 ; Story Partn. 307, 308 : 4 B. & Ad. 175 ; 17 Johns; 525 ; i Freem. Cn. 131 ; 8 W. & S. 262. u-7 Johns. 525 ; 8 Wend. 442 ; 5 Dana, 213; i Whart. 381 ; 2 Dev. Eq. 481 ; but see 14 Pick. 322. v-i3 Penn. St. 67: i Blatch. 488; 17 Johns. 525; i Freem. Ch. (Miss.) 231 ; 5 Dana, 213 ; 8 W. & 8.262; 14 Pick. 322; CollyerPartr guo; 2 Dev. Eq. 481; 17 Vt 390. w-4 B & Ad. 175. x-See Bis- set Partn 87; i W. Bl. 475 ; 4 B. & Ad. 172. y-Coll- yer Partn. $ 4 , Poth. Partn. ft. 147. ^-24 Pick. 8a ; see Story Partn. {298. -i6 Johns. 401, 402 ; Poth. Partn nn. 5, 140-143; Collyer Partn. 115. b-Poth. Partn. n. 143 ; Story Partn. 3 280. c-Collyer Partn. 119: Poth. Partn. . 139. I-i7 S. & R. 165 ; Chitty Boutr. (Ed. 1860) 285. e-i6 Johns. 438 ; 3 Kent Comm. te ; Story Partn. jj 315. 316; 3 Bland 674. f-Collyer partners;' so on his gross carelessness and waste in the administration of the partnership, and his exclusion of the other partners from their just share of the management;* so on the existence of a violent and lasting dissension between the partners, 11 where these are of such a character as to prevent the business from being conducted upon the stipulated terms. 1 and to destroy the mutual confidence of the partners in each other.J But a partner cannot, by misconducting himself and rendering ii impossible for his copartners to act in harmony with him, obtain a dissolution on the ground of impossibility so created by himself. 11 A partnership may be dissolved by decree when its business is in a hopeless state, its continu- ance impracticable, and its property liable to be wasted and lost. 1 The confirmed lunacy of an active partner is sufficient to induce a court of equity to decree a dissolution, not only for the purpose of pro- tecting the lunatic, but also to relieve his co- partners from the difficult position in which the lunacy places them. m The same may be said of every other inveterate infirmity, such as palsy, or the like, which has seized upon one of the partners, and rendered him incompetent to act where his personal labor and skill were contracted for." But lunacy does not itself dissolve the firm, nor do other infirmities. The court does not decree a dissolution on the ground of lunacy, except upon clear evidence that the malady exists, and is incurable. P A temporary illness is not sufficient."! A dissolution by the court, on the ground of insanity, dates from the de- cree, and not from a prior day. r Dissolution with respect to Third Persons. The partnership as to third persons, that is, the liability of partners with respect to third per- sons, cannot be dissolved without notice to them that the partnership no longer exists. Actual notice must be brought home to persons who have been in the habit of dealing witb the firm; but as to all persons who have had no previous dealings with the firm, notice fairly given in the public newspapers is deemed sufficient.' This notice is neces- Partn. 296; Chitty Contr. (Ed. 1860) 285; 4 Beav. Rolls. 502; 21 Id. 482; 2 Ves. & B. Ch. Ir. 209. g- Collyer Partn. ? 227 ; i Jac & W. Ch. 592 ; a Id. 206 ; 5 Ark. 278; 2 Asnm. 300, 310 ; 3 Ves. Ch. 74. h-i Jar- man Conv. 26 ; Gow. Partn. (30 Ed.) 227 ; J Iowa, 537 , Collyer Partn. J 297 ; see 4 Sim. Ch. u ; Story Partn 288; 4 Beav. Rolls, 503; 14 Ohio, 315. i-3 Kent Comm. 60, 61; Collyer Partn. \ 297. J-Beav. Rolls. 502 . zi Id. 482 ; i Lindley Partn. 184, 185. k-2i Beav. Rolls. 403,494; 3 Hare Ch. 387. 1-Collyer Partn 291 ; 3 Kent Comm. 60 ; i Cox, 212 ; 2 Ves. & B Ch. Ir. 290 ; 16 Johns. 491 ; Gow. Partn. (3d Ed.) 226, 227; i Lind- ley Partn. 180, 182; 3 Kay & J. 78, 13 Sim. Ch. 495 ni-See i Cox Ch. 107; i Swanst. 514, note; 2 Mylne & K. 125 ; 6 Beav. Rolls, 324: i De Gex M. & G. 171 : 2 Kay & J. 441 ; Collyer Partn. g 292 ; 3 Kent Comm 58; Watson Partn. 382; 3 Younge & C. 184, Kisstt Partn 83. n-Poth. Partn. . 153, 3 Kent Comm. 62- Collyer Partn \ 295. 0-3 Kent Comm. 58; Sn-ry Partn J 295 ; 3 Jur. 358 ; Bisset Partn. 85. p-3 Younge & C. 184; 2 Kay & J 441. q-2 Ves. Sen Ch. 34, i Cox. 107; i Lindley Partn 182, 183. r-i Phil. 172; 2 Coll. 276; i K. & J. 765; i Lindl. Partn. 183. -C"oll- yer Partn. fj 532-534- PARTNERSHIP. 553 ary to terminate the agency of each part- ner, and, consequently, his power to bind the firm.* It is not necessary to give notice of the re- tirement of a dormant partner from the firm, if the fact of his being a partner be unknown to all the creditors of the firm ; if it be known to some, notice to those must be given, but that will be sufficient. Notice of the dissolution is not necessary in case of the death of one of the partners, to free the estate of the deceased partner from further liability;' nor is notice, in fact, necessary in any case where the dissolution takes place by operation of law. w EFFECT OF DISSOLUTION. The effect of dissolution as between partners is to terminate all transactions between them as partners, ex- cept for the purpose of taking a general account, and winding up the concern. 1 As to third persons, the effect of a dissolution is to absolve the partners from all liability for future transactions, but not for past transactions of the firm.' Dissolution, however it takes place, terminates altogether the power of a partner to carry on the business concerns of the partner- ship, in a way to bind former partners by any contract whatever. The former partners are partners no longer, but tenants in common ; and where there is no agreement to the con- trary, each partner, after dissolution, possesses the same authority to adjust the affairs of the firm, by collecting its debts, and disposing of its property, as before dissolution ; but they can no longer bind each other, even by vary- ing the form of existing obligations. 1 No partner can indorse a note of the firm, even to pay a prior debt of the firm.* When a partner dies, the partnership property goes to the sur- vivors for the purpose of settlement, and they all have the power necessary for that purpose, and no more. b And the survivors can charge nothing for their trouble or labor in settling the concern. Nor is a partner entitled to com- pensation for extra services in the absence of an express contract, and there is no principle of the law which authorizes an inquiry into the inequality of the services of partners, unless t-i Lindley Partn. 261, 324; i Younge & J. 227; i Stark. 164; 7 Price, 193; i Campb. 402; 10 East. 264. n-Collyer Partn. j$ 120, 536; 5 Esp. 89; i Carr. ft K. 580; i Met. iMass.) 19 ; i B. & Ad. n ; 4 Id. 179; 5 B. Mon. 170; Chitty Tontr. (Ed. 1860) 287, and note ; 5 Cow. 534 ; i Lindley Partn. 326. v- Collyer Partn. g 120; Story Partn. (Jj> 162, 336, 343 ; 3 Kent Comm. 63; 3 Mer. Ch. 614; 17 Pick. 519; Bisset Partn. 103, 104. W-Collyer Partn. ? 538 ; 3 Kent Comm. 63, 67; 15 Johns. 57: 16 Id. 494. x-i Penn. St. 274; 3 Kent Comm. 62. et scq. y-Collyer Partn. 121 ; Story Partn. Ch. 15 ; 3 Kent Comm. 62, et sey.; 2 Cush. 175 ; Poth. Partn. . 155 ; 3 M'Cord, 378 ; 4 Munf. 215 ; 5 Mas. C. C. 56 ; Harper, 470; 4 Johns. 224; 6 Cow. 701 ; 41 Me. 376. z-13 Vt. 452 ; Id. 522 ; 24 N. Y. (10 Smith) 570. a-s Ga. 166; 25 Ala. 474; 33 N. H. 351; i Cush. 146; ii Id. 314. l>-6 Ves. 119, 126; n Id. 5; 15 Id. 218 ; 16 Id. 49, 57 : 5 M. & Sel. 336 ; 31 E. L. & E. 121 : 3 Harr. & J. 495 ; 6 Cowen, 441 ; 17 Pick. 519 ; i Busb. Eq. (N. C.) 277 ; 4 Wis. 102 ; i E. & E. 506 ; 16 La. 30; 19 Id. 402. 0-19 Penn. St. 516; i Hare, 153. d-i Head, 93; Id. 353. e-6 Ves. 119; n Id. 5. f-i6 B. Mon. 355; z Kernan, 283; 3 G. Greene, 186; 23 Mo. 185; 14 Penn, St. 469; 12 Barb, s/ 28 Conn. i. g- there be an express stipulation to that effect. 4 They are tenants in common with the repre- sentatives of the deceased, as to the choses in possession ; and they have a lien on them to settle the affairs of the concern, and pay its debts. 6 Proper notice should be given of a dissolution, for a firm may be bound by a con- tract made after the dissolution, or retirement of one or more, by a former partner, in the usual course of business, with a person who had no notice or knowledge of the dissolu- tion.' The power of the partners subsists for many purposes after dissolution ; among these are : 1. The completion of all the unfinished en- gagements of the partnership. 2. The conversion of all the property, means, and assets of the partnership existing at the time of the dissolution, for the benefit of those who were partners, according to their respective shares. 3. The application of partnership funds to the payment of the partnership debts. But although, for the purposes of winding up the concern, and fulfilling engagements that could not be fulfilled during its existence, the power of partners subsists even after dis- solution, yet, legally, and strictly speaking, it subsists for those purposes only. h RIGHTS OF CREDITORS CONCERNING PART- NERSHIP FUNDS. The property of a partner- ship is bound to the payment of the partnership debts, and the right of a private creditor of one copartner to that partner's interest in the prop- erty of the firm, is postponed to the right of the partnership creditor. 1 Where an attachment by mesne process exists, such attachment is allowed; but it is generally made subject to the paramount rights of the partnership cred- itors.J It is well settled that if partnership effects can be taken by attachment or on execu- tion to secure or satisfy the debts of one of the partners, this can be done only to the extent of that partner's interest, and subject to the set- tlement of all partnership accounts.* The gen- eral rule of law is, that in levying an execution against one partner for his separate debt, the officer may take possession of all the joint Story Partn. J 326; Chitty Contr. (Ed. 1860) z88; 3 Kent Comm. 57 ; 17 Pick. 519. h-Collyer Partn. ? 119 ; 15 Ves. Ch. 227; 5 Man. & G. 564: i H. Bl. 156: 3 Esp. 108 ; 4 M. & W. 461, 462 ; 10 Hare Ch 453 ; 4 De Gex M. & G. 542. Whether a dissolution of a partner- ship \%f>er se a breach of a contract by the firm to em- ploy a person in their service is questionable ; 3 Hurlst & N. 931. i-8 How. 414: 6 Mass. 243 ; 5 N H. 190:4 Conn. 540; 9 Greenl. 28; 20 Me. 89; 13 Ala. (N. S.) 752 ; 18 Conn. 294 ; 6 B. Mon. 128 ; 7 Id. 210 : 2 Md. i ; 1 8 Ohio, 181 ; 20 Penn. St. 76; I Foster, 462; 20 Vt. 479; i Barb. Ch. 480; 13 Ala. 387; 7 Humph. 106: 3 Barb. Ch. 46, 50; 2 Vt. 120; 8 Id. 790; 19 Id 278; Id 292; 46 Me. 250. J -6 Mass. 242 ; n Id. 248; 16 Pick 572 ; 22 Id. 450; 24 Id. 210; o Greenl 28 : i Fairf. 458 : 2 Me. 89 ; 5 N. H. 100 ; i Show. 169 ; i Salk. 392 ; i Comyns. 277; 8 N. H. 238; jo Id. 77; 12 Id. 276 : 4 Conn. 540; 19 Vt. 278 : 16 Johns. 102 ; 6 Johns. Ch 186; 13 Cal. 626. It-Cowp. 445 ; Doug. 650; i Ves. Sen. 239; i Ves. Jr. 236; 4^.396; 15 Ves. 557; ijac. & W. 608; 17 Ves. 193; 9 Greenl. 33; i Penn. St. 198 i Ala. (N. S.) 129 ; Story Partn. J 261 ; Col! Partn. } 822, H. ; i Wena. 311 ; 5 N. H, 193 ; 5 Blackf. 337-*, Dewey, J, 554 PARTNERSHIP. property of the firm, in order to inventory and appraise it. He has no authority to divide it ; he can only sell the joint interest of the debtor, whatever it may be, and the purchaser will stand in the place of the debtor, and hold the same interest in the joint concern which he held. The levy of execution does not give the creditor a separate possession of the goods. The indebted partner had no such possession himself; and the levy gives to his creditor only that which the debtor had ; and that is a right to call for an account, and then a right to the balance which may be found to belong to him upon a settlement. In the absence of statutory provisions, an officer cannot take or give, by sale, specific pos- session of the partnership property ; he takes, and can sell only the right and interest of the indebted partner to, and in the whole fund. After sale on execution, the officer should con- vey to the purchaser all the right and interest of the indebted partner in the stock and prop- erty of the partnership. Private creditors of one of the partners can- not reach the partnership funds until the claims of the partnership creditors are satisfied. 1 The assets of a deceased, and of insolvent partners, if there be a partnership and separate property, will be distributed by paying the firm debts out of the joint estate, and the individual debts out of the separate estate ; the joint and individual debts should be kept separate, and the assets of the two estates marshalled accordingly ; joint creditors must first resort to the joint fund, and the creditors of the individual partners to their separate property; upon the inadequacy of either of these, then the joint or separate estate may be applied, according to the exigency of the case ; if there is no joint fund, nor any sol- vent partner, joint creditors may participate equally with a private creditor in the estate of a deceased partner, and if there should be a surplus of the joint fund, the creditor of an in- dividual partner may resort to that. m MEMBERS. Partners are members of partnership. Dor- mant partners are those whose names and transactions as partners are professedly con- cealed from the world. Nominal partners are ostensible partners who have no interest in the firm or business. Ostensible partners are those whose names appear to the world as partners, and who in reality are such. Persons who have the legal capacity to make other contracts may enter into that of partner- ship.* A lunatic seems not to be absolutely (n capable of being a partner. 1 * A minor may contract the relation of partner, as he may 1-8 How. 414: i Williams, 478; 14 Texas, 20. m- Pahlman vs. Graves, 26 111. 405. a-Collyer Part. ? n, 17.. b-2 Mylne & K. 125 ; 6 Beav. Rolls. 324; t Lind- e-i Stark. 25 ; 8 Taunt. 35 ; 5 B. & """, 479 : .(Ed. !ey Partn. 76, 77. C-i Stark. 25 ; 8 Taunt. 35 ; 5 1 Aid. 147. d-s B. & Aid. 147 ; 9 Vt. 368 ; 2 Hill, 3 Cush. 372 ; Collyer Part. \ 528 ; Cnitty Contr. v ~~. 1860), 170, 171 ; Story Part. 37: 3 Kent Comm. 68 ; i Lindley Part. 74-76. e-2 Hill, (S. C.) 497. f-Str. 939; 2 M. & S. 205. ff -Collyer Partn. 14; 15 Johns. 57 ; 16 Id. 438 ; 3 Kent Comm. 62, 67 ; i Bindley Partn. 79. ll-Collyer Partn . J u ; i Lindley Partn. 71. |-i4 make any other trading contract which may possibly turn out to be for his benefit." This contract is subject to the right of avoidance by the minor ; but, as in the case of continuing contracts, he is presumed to ratify it, and will be liable on subsequent contracts made on the credit of the partnership if he do not, within a reasonable time after he has attained his full age, give notice of his disaffirmance of or otherwise repudiate the partnership.* It has been held that if a party who was a member of a firm during his minority, does in any manner concur with in carrying on the part- nership, or receive profits from it, after he comes of age, it amounts to a confirmation, and will render him liable on the contracts of the firm made during his minority. 6 The person with whom the minor contracts will be bound by all the consequences. 1 Persons domiciled, and trading in different countries at war with each other, cannot be partners.* Generally speaking, the common law im- poses no restriction as to the number of per- sons who may carry on trade as partners. 1 * PARTNERS IN LAW. If persons suffer their names to be used in a business, or otherwise hold themselves out as partners, they are to be so considered, whatever may be the engage- ments between them and the other partners. 1 In such cases they will be equally responsible with the other partners, although they receive no profits ; for the contract of one is the con- tract of alU This rule of law arises not upon the ground of the real transaction between the partners, but upon principles of general policy, to prevent the frauds to which creditors would be liable if they were to suppose that they lent their money upon the apparent credit of three or four persons, when, in fact, they lent it only to two of them, to whom, without others, they would have lent nothing.* It has been held that it is not necessary for a person charging a nominal partner to have been aware of the partnership at the time of the contract, 1 and this doctrine has been vindicated on the ground that the object of the rule is to prevent the extension of unsound credit. m But the doc- trine has been very much questioned." The term " holding one's self out as partner," im- ports, at least, the voluntary act of the party holding himself out, but no particular mode of holding himself out is requisite to charge a party. The usual evidence to charge a party in such cases is that he suffered the use of his name over the shop door, in printed notices, bills of parcels, and advertisements, or that he Vt. 540; 3 Kent Comm. 32, 33; Collyer Partn. j) 86; 27 N. H. 252. f-2 Campb. 802 ; 2 McLean C. C. 347: 5 Mill. (La.) 406, 409 ; 5 Bingh. 776 ; 10 B. & C. 140 ; i M. & R. 9; 19 Ves. 459; 17 Vt. 449. k-2 H. Bl. 235; Dougl. 371 ; 2 W. Bl. 998 ; 3 Kent Comm. 32, 33 ; 6 S. 6 R. 259, 333; 16 Johns. 40; 2 Dot. 148; 2 Nott. & M'Cord, 427; Collyer Partn. 86; Watson Partn. 26. 1-2 H. Bl. 242; 3 Watts. 39. in-Collyer Partn. g 86. n-See i Smith L. Cas. ( Eng. Ed.) 507 ; i B. & C. 140; 2 McLean C. C. 347 ; Mood. & R. 9 ; i B. & Aid. xi ; 8 Ala. fN. S.) 560; 7 B. Mon. 456. o-Collyer Partn. } 97; 3 Conn. 324; 2 Camp. 617. PARTNERSHIP. sss has done acts, or suffered his agents to do acts,* no matter of what kind, sufficient to in- duce others to believe him to be a partner.^ If there be a stipulation that a person appearing to be a partner shall be liable to no loss, he, of course, will not be liable as a partner to those who have absolute knowledge of such stipulation. 1 " Dormant partners are, when discovered, equally liable with those who are held out to the world as partners, upon contracts made during the time they participate in the profits of the business." The principle upon which dormant partners are liable is that, as they have the benefit of a share in the profits which are a part of the fund to which a creditor looks for payment, they shall be bound by the bur- dens.' Another reason given for holding them liable is that they might otherwise receive usurious interest without any risk." Sharing Profits, The general result of the authorities seems to be that persons who share in the profits of the concern are prima facie liable as partners to third persons; if they have not held themselves out, or allowed themselves to be held out, as partners, they may repel the presumption of partnership by showing that the legal relation of partnership inter st does not exist. T This presumption may be repelled by showing that the persons who receive a share of the profits are mere ser- vants, agents, factors, brokers, or other persons receiving such share of the profits in lieu of wages, or commission for their labor, trouble, or services." A distinction has been sometimes made between sharing the gross profits or earnings and the net profits; but it is far from being treated as decisive on the question of partnership." The contract must be voluntary among the members ; therefore no stranger can be intro- duced into the firm without a concurrence of the whole firm.? The delectus persona, as it is called, is so essentially necessary to the consti- tution of a partnership, that even ;he executors, or other representatives of partners themselves do not, in their capacity of executors, or rep- resentatives, succeed to the state and condition of partners. 1 But it may be stipulated that the heirs or executors of partners themselves shall p-37 N. H. 9. q-Collyer Partn. g 97 ; 3 McLean C. C. 364, 549 ; 3 Campb. 310 ; i Ball. & B. 9 ; 6 Bingh. 776; 4 Moore & P. 713; 20 N. H. 453, 454; 39 Me. 157. r-i Campb. 404 : 5 Brown. Parl. Gas. 489 ; Coll- yer Partn. $ 98 ; but see Chitty Bailm. 120. As to how knowledge of the terms of the agreement under which parties are associated will affect third persons, see 6 Met. (Mass.) 93, 94; 6 Pick. 372; 15 Mass. 339; 4 Johns. 251 ; 5 Cow. 4 635 ; 4 Esp. 89 ; i Cr. Pick. 272 ; 5 Pet. 529 ; 2 ] (Ed. 1860), 262 ; 5 Watts. 454 ; 28 Vt. 108. s-s Scott, 619, J.3i6; 5 Mass. C. C. 176; 9 Harr & 0.159; Chitty Contr. . 37 ; 3 Price, 538. C. 187, 188; 5 Pet. East. 174 ; i H. BL 31 ; 2 Id. 247 : Collyer Partn. i Dougl. 371; i H. Bl. t-i Story C. C. 371, 376; 5 Mas. C. [Pet. 574 ; 10 Vt. 170; 16 Johns. 40; 16 . Bl. 31 ; 2 Id. 247: Collyer Partn. 18. U-Per Mansfield, Dougl. 371 ; 4 East. 143 ; 4 B. & Aid. 663 ; 3 C. B. 641, 650 10 Johns. 226. v-Collyer Partn. I 85. w-Collyer Partn. (25, 39 ; Story Partn. ? 33, 34, 49. 55 : 4 Sandf. 311 ; 14 Pick. 195; 6 Met. (Mass.) 91 ; 12 Conn. 69 ; 2 McCord, 421 ; 3 Wils. 40; but see 38 N. H. 287. x-See i Campb. 330; 16 Vt. 119; 10 Id. be partners,* and such stipulation is binding.* Although the delectus persona, which is inher- ent in the nature of partnership, precludes the introduction of a stranger into the concern against the will of any of the partners, yet no partner is precluded from entering into a sub- partnership with a stranger. In such case the stranger may share the profits of the particulal partner with whom he contracts. POWERS. It may be stated, as a general prin- ciple which governs all partnerships in trade, that each individual partner constitutes the others his agents for the purpose of entering into all contracts for him within the scope of the partnership concern, and, consequently, that he is liable to the performance of all such contracts in the same manner as if entered into personally by himself. 6 In truth, the law of partnership is a branch of the law of principal and agent. If two agree that they should carry- on a trade and share the profits of it, each is a principal and each is an agent for the other, and each is bound by the other's contracts in carry- ing on the trade as much as a single principal would be by the act of an agent who was to give the whole of the profits to his employer. Hence it becomes a test of liability of one for the contract of another, that he is to receive the whole or a part of the profits arising from that contract by virtue of the agreement made at the time of the employment.* If an act is done by one partner on behalf of the firm, and it can be said to have been necessary for the carrying on of the partnership business in the or- dinary way, the firm will prima facie be liable, although in point of fact the act was not au- thorized by the other partners ; but if the act cannot be said to have been necessary for the carrying on of the partnership business in the ordinary way, the firm -will prima facie not be liable.* Each partner has power to manage the ordi- nary business of the firm, whatever it may be, and. consequently, to bind his partners, whether they be ostensibly dormant, actual, or normal, 1 by whatever he may do in the course of such management, as entirely as himself. A partner may, for instance, borrow money, 1 purchase goods,J and sell k the whole of the partnership goods at a single sale. 1 So he may pledge the 170; 6 Pick. 335; 14 Id. 193 ; 6 Met. (Mass.) 91 ; 4 Me. 264; 12 Conn. 69; 38 N. H. 287, 304; Coll. Partn. \ 35 ; and note Abbott, C. J. : 4 B. & Aid. 663. y-7 Pick. 235,238; n Me. 488; i Hill (N. Y.)2 34 : 8 W. & S. 63; 16 Ohio, 166 ; Collyer Partn. gj>8, 192 ; Poth. Partn. Ch. 5, ii. Art. 91 ; 2 Rose Bank. 254, z-Collyer Partn. \ q : 7 Pick. 237, 238 ; 3 Kent Comm. 55, 56. a-2 Ves. Sr. Ch. 34; Collyer Partn. 9, 228, et seq.; 3 Kent Comm. 56, 57; i Swanst. 510, .,- 9 Ves. Ch. 500; 7 Conn. 307. b-Poth. Partn. . 145. c-Dig. lib. 17 tit. 2, s. 20; Poth. Partn. Ch. 5, \ ii, n. 91. e-6 Bingh. 792 ; Story Partn. i ; 20 Miss. 122 ; 10 N. H. 16; Collyer Partn. g 195; Poth. Partn. c. 5, n. 90; 4 Exch. 623, 630. f-23 Bost. L. Rep. 498. ff-io B. & C. 128; 14 M. & W. ii ; 4 Exch. 630; i Lindley Partn. 192-195. h-7 East. 210; 2 B. & Aid. 673; i Cr. & J. 316. I-i Esp. 406; Collyer Partn. j$ 300, 391 ; 4 Met. (Mass.) 577. j-Comb. 383 ; 2 Carr. & K. 828 ; 5 W. & S. 564. fc-Godb. 244; Cowp. 445; 3 Kent Comm. 44. 1-24 Pick. 89; Collyer Partn. g 394; i Brock. 456; 5 Watts. 22; 4 Wash. C. C. 234; i Harr. Ch. a. 55 PARTNERSHIP. partnership goods even in the case of a par- ticular adventure." This principle does not extend to the case of a joint-purchase or sub- purchase.* The right of a partner to dispose of the property of the firm extends to assign- ments of it as security for antecedent debts, as well as for debts thereafter to be contracted on account of the firm.? The assignment may be for the benefit of one creditor or of several, or of all the joint creditors where all are admitted to an equal participation.*! It has been held that one partner may without the consent or knowledge of his copartners mortgage all the goods of the firm to secure a particular cred- itor of the firm. r The right of one partner to dispose of the partnership property is, how- ever, confined strictly to personal effects, and does not extend to real estate held by the part- nership. 1 A partner may draw, accept, and indorse Ws, notes, and checks in the name and for the jse of the firm,* and a note or bill executed by jne partner in the name of the firm is prima facie evidence that it was executed for partner- ship purposes." But if a partnership be carried on under a single name, it has been held that the legal presumption in regard to a note signed by that name, is, that it was a personal and not a partnership note. v One partner may effect insurance," and receive money for the firm, x may compromise with its debtors or creditors/ and release debts due to it, 1 and such acts and dealings, if they fall within the ordinary busi- ness of the firm,* will bind all the other part- ners. A warranty of a horse upon sale thereof by one of several horse-dealers' partners would bind the others. b Upon the principle that the act and assurance of one partner, made with reference to business transacted by the firm, will bind all the partners; the acknowledg- ment, promise, or undertaking of one partner with reference to the contracts of the partner- ship, is held to be the acknowledgment, promise, or undertaking of all. Power to Interfere with, or Dissent from Future Contracts, etc. One partner may inter- fere, and, by his dissent from future contracts by his copartner, or from closing of contracts with m-Barn. 343 ; 2 KentComm. 46; CollyerPartn. 396; 10 Hare Ch. 453; 5 Exch. 489; 6M. &G. 607. n-Gow. 132, 135 note : i Rose Bank. 297; 4 B. & C. 867. o- 5 B. & Aid. 395. n-Story Partn. g 101 ; 5 Cranch. 298 ; i Brock 456 ; 17 Vt. 394. -Story Partn. g 101 : 4 Day, 428; 6 Pick. 360; 4 M'Cord, 519; 4 Mas C. C. 206; 5 Watts, 22 ; i Hoff. Ch. 511. r-i Met. (Mass.) 518, 519 ; 7 Id. 248. *-i Met. (Mass.) 518,519; Story Partn. 101 ; i Brock. 456, 463. t-Salk. 126; 7 T. R. 210; 2 Peake. 150; 3 Dowl. 219; B. N. P. 279; 20 Miss. 226; 4 Johns. 265 ; Story Partn. g 102 ; 5 Blackf. 210 ; 4 Md. 288. n-Collyer Partn. g 401, note; 6 Wend. 615; 16 Me. 419; 5 Mass. C. C. 176; 7 Ala. N. S. 119. v-See 26 Barb. 610; 38 Me 506 ; 5 Pick. n. w-4Campb. 66; Collyer Partn. g 438 ; Story Partn. g 102. x-Holt. 434 ; Cowp. 814 y-Story Partn. g 115; 7 Gill. 40; Rice, 9i. *-} Kent Comm. 48; Chitty Contr. (Ed. 1860) 274; Coflyer Partn g 468 and note; Bac. Abr. Release (D); 3Bingh. 103: 17 Johns. 58; 7 N. H. 567; 4 Mas. C. C. 232 ; 4 Gill & J. 310; 3 Wash. C. C. 511 ; 3 C. B. 742, 745; Story Partn. 9 "5- a-6 Beav. Rolls, 324; 2 Phill. 354. b-2 B. & Aid. 679. c-i Taunt. 104 ; Story Partn. g 107; i Esp. 135; i Russ. & M. 199 ; 4 B. & AW. 663; 4 Dowl. & R. 7; i Salk. 291; CollyerPartn. him which have not become binding upon the firm, he may, upon express notice thereof, avoid any liability subsequently arising upon such con- tracts if entered into, unless the dissenting partner afterwards assents to and ratifies the transaction. 4 But it seems that the dissenting partner would not be liable merely on the ground that the goods purchased, or the fruits of the contract, came to the use of the firm,* unless they were of some benefit to the firm.' It has, however, been questioned whether the dissent of one partner where the partnership consists of more than two, will affect the valid^ ity of partnership contracts made by the major- ity of the firm in the usual course of business, and within the scope of the concern.' In the absence of an express stipulation, a majority must decide as to the disposal of the partner- ship property, 11 but the power of the majority must be confined to the ordinary business of the partnership. 1 It does not extend to the right to change any of the articles thereof^ nor to engage the partnership in transactions for which it was never intended. k Where a majority is au- thorized to act, it must be fairly constituted, and must proceed with the most entire good faith. 1 Power to Bind the Firm in Submission, Arbi- tration, Confession of Judgment, etc. One part- ner cannot bind the firm by submitting any of the affairs of the firm to arbitration, whether by deed or parol. m The principle is that there is no implied authority, excepting so far as it is necessary to carry on the business of the firm." It might also affect the rights of the other part- ners to resort to the ordinary course of justice. Still, in some States, one partner may submit partnership matters to arbitration .P One partner cannot, by confessing a volun- tary judgment, bind his copartners, unless actually brought into court by regular service of process against him and his partner; a judg- ment so confessed will bind the partners who did it only.i Nor can one partner, by enter- ing an appearance for another, bind him per- sonally and individually, where the latter is not within the jurisdiction, and has not been served with process.' One partner will be bound by the fraud of g 422. d-i Stark. 164 ; 3 Kent Comm. 45; 3 Comm. 124; i Campb. 403; 16 Vin. Abr. 244; 15 Me. 198; Collyer Partn. gg 388, 389 ; Poth. Partn. n.oo. e-is Me. 178, 181 : 3 Conn. 124; 10 East. 204 ; i Younge & J. 227, 230. f-i Stark. 104 ; 15 Me. 181. |f-3 Kent Comm. 45 ; Collyer Partn. gg 147, 389 and note ; Story Partn. g 123; i Johns. Ch. 400; 4 Id. 573, 597; i Turn. & R. Ch. 496, 517, 525. h-i Chitty Com. L. 234. i- Collyer Partn. g 197 ; 9 Hare Ch. 326 ; 3 De Gex. & I. 123; 4 Kay. & J. 733; 2 Phill. 740; 14 Beav. Rolls. 367; 2 De Gex. M. & G. 49! 3 Smale & G. 176. I- Collyer Partn. g 198; Story Part, g 125; 4 Johns. Ch. 573 ; 32 N. H. 9. k-Gow. Partn. fed Ed.) 398 App. ; 3_M. & S. 488; i Taunt. 241 ; i Sim. & S. Ch. v. 1- Turn. & R. Ch. 525 ; 10 Hare Ch. 493 ; 5 De Gex. & S. 310. Wl-3 Kent Comm. 49 ; Story Partn. gg 114, 115 ; 3 Bingh. 101 ; 3 Hurlst. & N. 500; i Cr. M. & R. 681 ; 3 C. B. 742, 745 : 19 Johns. 137 ; i Pet. 221 : ColL Partn. g 439, 470. n-i Cr. M. & R. 581 ; 3 Bingh. lot. O-Collyer Partn. g 439. p-Wright, 420; 12 S. & R. 243: iMonr. 433. q-i Wend. 311 ;' i Blackf. 252 ; i W. & S. 340, 519 ; 7 Id. 172 ; 3 C. B. 742 ; Coll. Partm. g 464, n. ; 4 Moore & P. 57. r-y Cush. 360; i How. 165. PARTNERSHIP. 557 hit copartner in contracts relating to the affairs of the copartnership made with innocent third persons.* This doctrine proceeds upon the ground that, where one of two innocent persons must suffer by the act of a third person, he shall suffer who has been the cause or occasion of the confidence and credit reposed in such third person.* The liability, therefore, does not arise when there is collusion between the fraudulent partners and the party with whom be deals," or the latter have reason to suppose that the partner is acting on his own account/ A partner may be made liable for other wrongs committed in reference to the partnership busi- ness by his copartners ; as, where a partner in- jures a third person by negligence in driving a coach, the property of the firm and employed on their business.* A joint conversion may be raised in point of law, by the assent of the partner to the acts of his copartner.* Demand of, and refusal by one partner to deliver up property is evidence of a conversion by both.r But the wilful tort of one partner seems not in general to be imputable to the firm.* Private Arrangements between Partners, etc. No arrangements between the partners them- selves can limit or prevent their ordinary re- sponsibilities to third persons, unless the latter assent to such arrangements.* But where the creditor has express notice of a private arrange- ment between the partners, by which either the power of one to bind the firm, or his liability on partnership contracts is qualified or defeated, such creditor will be bound by the arrange- ment. 1 * The act or contract of one partner, even in a transaction purely of a partnership nature, does not bind the firm, if the creditor has express notice from the other partners that they will not consider themselves responsible, for the authority of one partner to bind the firm is only implied ; and no one can become the creditor of another against his express and declared will.* The partnership property consists of the orig- inal stock and the additions made to it in the course of trade. All real estate purchased for the partnership, paid for out of the funds thereof, and devoted to partnership uses and trusts, whether the legal title is in one or all of the partners, is treated in equity in the same man- ner as other partnership property until the part- S-Collyer Partn. \ 445 ; 2 B. & Aid. 795 ; Cowp. 114 ; i Met. (Mass.) 563 ; 6 Cow. 497; i Ry. & M. 364 ; 6 B. & C. 561 ; 2 Clark & F. Ho. L. 250 ; 7 Monr. 617 : i Campb. 185; 7 Ired. 4; 15 Mass. 75, 81, 331 ; 17 Id. 182 ; Bisset Partn. 76. t-Story Partn. 108 : I Met. (Mass.) 562, 563. u- Bisset Partn. 80, 81 ; i East. 48, 53. v-Peake,~8o, 81 ; Chitty Contr. (Ed. 1860), 280, 284 ; 2 C. B. 821 ; 10 B. & C. 298. W-Chitty Contr. (Ed. 1860) 280, a note ; Collyer Partn. \ 458 ; 12 N. H. 276. x-Collyer Partn. 458; i M. & S. 588; Story Partn. 166. y-4 Hill, 13 ; 24 Wend. 169 ; 4 Rawle, 120. -3 Dowl. 160; 10 Exch. 352. a-Collyer Partn. J 386; i B. & Aid. 679 ; 3 Kent Comm. 41 ; 5 Mas. C. C. 187, 188 ; 5 Pet. 129 ; 3 B. & C. 427. b-Collyer Partn. J 387; 12 N. H. 275; 4 Ired. 129; 38 N. H. 287 ; 6 Pick. 372 ; 4 Johns. 251 ; 5 Conn. 597, 598 ; i Campb. 404 ; 5 Brown Parl. Cas. 489 ; i Lindley Partn. 260, tt stf. 267-269. C-i Salk. 202 ; 10 East. 264 ; i Stark. 164 ; i Vounge & J. 227. d-Chitty Contr. (EU. nership account is settled, and the partnership debts are paid. 9 Leases of real estate taken by one partner for partnership purposes, mines, and trade-marks, are held to be partnership property/ A peculiar species of interest, called good- will of the trade or business, is often treated as in some sort a part of the partnership property.* It is considered to enhance the value of the effects on it, is attendant, and will, therefore, be included in a decree for the sale of those effects. 11 The good-will of a professional part- nership belongs, in the absence of express stipu- lation, exclusively to the survivors. 1 Partners as Joint Tenants, and Differing from Tenants in Common, etc. Partners are said to be joint tenants of the partnership prop- crty, without benefit of survivorship inter set But in addition to the ordinary right of joint tenants, each partner has also a power, singly, to dispose of the entire right of all the partners in the partnership effects, for the purposes of partnership, and in the name of the firm. k Partnership also differs from a tenancy in common in reference to the power of disposal, and because, inter se, each partner has a claim, not to any specific share or interest in the prop- erty in specie, as a tenant in common has, but to the proportion of the residue which shall be found to be due to him upon the final balance of their accounts, after the conversion of the assets, and the liquidation thereout of all the claims upon the partnership; and, therefore, each partner has a right to have the same ap- plied to the discharge and payment of all such claims before any one of the partners, or his personal representatives, or his individual cred- itors, can claim any right or title thereto. 1 If a Partner has taken the whole or any part of his share out of the partnership stock, the stock so taken, if identified, is applicable to the payment of what, upon an account taken, shall be found to be due from him to the partner- ship, before it can be applied to the payment of his separate creditors. The same rule will apply to any other property into which the partnership property may have been converted, so far and so long as its original character and identity can be distinctly traced," and hence no separate creditor of any partner can, merely 1860)284; Collyer Partn. J 387. *-Bis*et Partn. 47- 56,60; Story Partn. 98 ; 5 Ves. Ch. 189; 3 Swanst 489 ; Collyer Partn. \ 135 ; 10 Cush. 458 ; 4 Met. 5,77 5 Id. 562 ; 3 Kent. Comm. 37; 27 N. H. 37. t-ij Ves Ch. 298 ; Bisset Partn. 60, 61 ; i Taunt. 250; 10 Jur 106; 5 Ves. Ch. 308 ; Story Partn. ? 98. ff-But Chan cellor Kent says : " The good-will of a trade is not part nership stock." 3 Kent Comm. 64. Still, the good-wit of a business is often recognized as a. valuable interest 3 Mer. Ch. 452, 451; ; i Hoff. Ch. 68 ; 5 Ves. Ch. 539 ll-Collyer Partn. fj[ 161, 322 ; Story Partn. $ 99, 100 Bisset Partn. 62. i-Bisset Partn. 64 ; 3 Madd. Ch. 64 Collyer Partn. 163. jj-Bisset Partn. 34. 45 ; 7 Jar man Conv. 67; Com. Dig. Merchants (t).)- Co'ilye Partn. \ 123; Story Partn. $ 89, 90. k- Bisset P-mn 45 ; Story Partn \ 90 ; Cowp. 445. 1-Story Partn ?97; 7 Jarman Conv. 68; Cowp. 469; x Ves. Sen Ch. 2^9; 4 Ves. Ch. 396; 6 Id. 119; 17 Id. IQT. ill i P. Wms. 180; Collyer Partn. J iao; Story Partn. | 97. 11-4 Harr. & M'H. 167; Story Partn. J 07. 55* PARTNERSHIP. as such creditor, take any portion of the part- nership effects, by process or otherwise, except for so much as belongs to that partner, and his share or balance after all prior claims thereon are deducted and satisfied. Each Partner has also a specific lien on the present and future property of the partnership, the stock brought in, and everything coming in lien, during the continuance and after the determination of the partnership, not only for the payment of debts due to third persons, but also for the amount of his own share of the partnership stock, and for all moneys advanced by him beyond that amount for the use of the partnership, as also for moneys abstracted by his copartners beyond the amount of his share. P This lien attaches on real estate held by the partnership for partnership purposes, as well as upon the personal estate,^ and is co-extensive with the transactions on joint account. 11 Each Partner is Liable to pay the "whole Part- nership Debts. In what proportion the partners shall contribute is a matter merely among themselves." Universally whatever agreement may exist among the partners themselves, stipulating for a restricted responsibility, and however limited may be the extent of his own separate beneficial interest in, and however numerous the members of the partnership, each individual member is liable for the joint debt to the whole extent of his property.* The a'-t or admission of one partner in legal proceedings, as also notice to or by one partner, as a general rule, is held to be binding on the firm." In an action against partners, one may enter an appearance for the rest, T but not to bind them personally and individually when not within the jurisdiction, and not served with process. 1 " Where one partner released an ac- tion after the firm had instructed their attorney to proceed to trial, the court refused to inter- fere. 1 And it seems that one partner has also the power of suspending proceedings in an ac- tion.' One partner may give notice of aban- donment under a policy of insurance for all. 1 Notice of dishonor to one of several partners, joint indorsers of a bill or note, is notice to all.* One partner may act for the others in proceedings under the bankrupt laws, b except in the case of a petition for a fiat.* O-Story Partn. ? 97 : 9 Me. 28 ; Collyer Partn. ? 822, and notes : 5 Johns. Ch. 417. p-Story Partn. |j) 97, 326, 441; CollVer Partn. g 125; 3 Kent Comm. 65, 66; 8 Dana, 278 : 10 Gill & J. 253 ; 20 Vt. 479 ; 9 Cush. 558 ; i Lindley Partn. 576 ; i Ves. Sen. 230 ; o Beav. Rolls. 239 ; 20 Id. 20 ; 25 Id. 280 ; 3 Mont. D. & D. 198. q- 5 Met. (Mass.) 562, 577-579, 585. r-i Dana, 58; n Ala. (N. S.) 412. H-Per Mansfield, 5 Burr. 2613. t- Bisset Partn. 9; 5 Burr. 2611; 2 W. Bl. 947; 9 East. 516; 5 T. R. 601; i Ves. & B. Ch. Ir. 157; 2 Deas. 148; 6 S. & R. 333; i Lindley Partn. 300. u-Collyer Partn. {$ 441, 442, 443; 15 Mass. 44; 2 Wash. C. C. 388; 4 Conn. 326; 3 Littell, 250 : Story Parln. 2 107; i M. & S 259; 5 Id. 49; i C. & P. 550; i Campb. 82; 2 (Jr. & M. 318. v-7 T. R. 207; 17 Vt. 531; see 2 M'- L'ord, 310. w-9 Cush. 360; n How. 165. X-7 J. B. Moore, 356. y-Bisset Partn. 75 ; Gow. Partn. 65, note. -5 M. & S. 47. a-Chitty Bills, 339; 6 La. 684; 20 Johns. 176. b-Collyer Partn. 19 Id. 291; i Rose Bank, 2; a .>.. *...... Itng. Ed.) 76. c-Bissot Partn. 76. d-s Q. B. 833; 4 444; 4 Ves. Ch. 579; k.2 ; a Id. 174; Bisset Partn. Power to Bind the Firm outside of Partner- ship Transactions, etc. A partner derives no authority from the mere relation of partnership to bind the firm as the guarantor of the debt of another,* or as a party to a bill or note for the accommodation of, or as a mere and avowed surety for another.* In neither of these cases can the act of one partner bind the firm, unless there be a special authority for the purpose, or one to be implied from the common course of business, or the previous course and habit of dealing, with the knowledge and consent of th firm, or unless the transaction is subsequently adopted by the firm.' Whether it appears upon the instrument or in some other way, that the contract is one of guaranty, suretyship, or accom- modation, the burden of proof is upon the party holding it, if he took it, knowing such to be the character of the contract, to show the facts neces- sary to render it available against the firm.* Direct or positive proof is not necessary ; the authority or ratification may be inferred from circumstances. 11 The Act of a Partner "wholly unconnected with the business of the Partnership does not bind the firm. 1 Still a partner may bind the firm in matters out of the usual course of the business of the firm, if those matters arise out of, and are connected with, the regular transac- tions of the firm.J If one partner is a trustee, and he improperly employs the trust funds in the partnership business, his knowledge that he is doing so is not imputable to the firm. k If a partner applies partnership funds to the payment of his own debts this act is void, al- though the creditor did not know that the funds belonged to the partnership. 1 And where any creditor of one member of the firm takes from him either in payment or security for his debt the paper of the firm, he takes it in fraud of the firm, and the firm will not (unless their interest, or assent and authority be shown) be held. m Contracts to Convey Real Estate. Contracts by Deed, etc. One partner without authority, express or implied, from circumstances cannot bind the firm by a contract to convey real estate of the partnership unless there be a subsequent ratification or adoption of the contract." One Exch. 623; Collyer Partn. ? 421; Chitty Contr. (Ed. 1860) 276, 277, and notes ; Story Partn. \ 127; 3 Kent Comm. 46, 47; 3 Ired. 241 ; 2 Harr. 24; 2 Ala. (N. S.) 502 ; 2 Cush. 309. e-2 Cush. 309; Coll. Partn. \ 421 ; 19 Johns. 154 ; i Wend. 531 ; 5 Conn. 574 ; 21 Miss. 122; 31 Me. 452; 3 Humph. 507; 14 Wend. 133, 138; 4 Hill (N. Y.) x6i. f-Collyer Partn. 9 421, and note ; 3 Kent Comm. 46, 47 ; Chitty Contr. (Ed. 1860) 276, 277 ; 3 Humph. 597; 4 Hill (N. Y.) 261. JT-I9 Johns. 154; 7 Wend. 309; 2 Cush. 314, 315; 2 Penn. St. 177; 21 Miss. 122; 22 Me. 188, 189; 31 Id. 454. h-2 Cush. 309; 22 Me. 188, 189; 14 Wend\ 133; 2 Littell, 41; 10 Vt. 268. i-4 Exch. 623 ; Collyer Partn. $ 437, 484; a B. & Aid. 678 ; 4 Johns. 265: 8 Me. 820 ; 15 Pick. 290; 3 Conn. 198; 3 Johns. Ch. 23; Story Partn. $ 112, 113; Chitty Contr. (Ed. 1860) 275; 3 Q. B. 316; 4 Dana, 378; 2 El. & Bl. 61. J-Collyer Partn. \ 484 ; 2 B. & Aid. 673. h-i Lindley Partn. 231 ; i Brock, 386. 1-iz Peters, 229 ; 16 Johns. 34 ; 7 Wend. 326 ; 23 Ala. 558 ; 24 Miss. 170. 111-14 Wend. 33 ; n S. & Marsh. 322; 18 Penn. 408 ; n Cush. 62 ; 4 Seld. 408. 11-5 Hill (N. Y.) 107. PARTNERSHIP. 559 partner has no implied authority to bind his copartners by deed, but a deed made by one partner in the name and for the use of the members of the firm will bind the other part- ners, if they assent to it or subsequently adopt it; and this consent or adoption may be by parol.P So one partner may bind the firm to a conveyance by deed of the effects of the firm which he might have conveyed without deed. The mere circumstance of annexing a seal to the instrument in such a case does not annul a transfer so consummated.' A deed of as- signment of the partnership property, executed by one partner as his deed only, passes his interest in the property. 11 The rule that one partner cannot bind his copartners by deed does not extend to releases;* as a release by one partner is a release by all, so a release to one partner is a release to all.* The power of a partner to dispose of the property of the firm does not extend to real estate held by the partnership; one partner can- not convey away real estate of the firm without special authority." Upon the decease of one of several partners his personal representatives become tenants in com- mon with the surviving partners.' Still, as the surviving partner stands chargeable with the whole of the partnership debts, he takes the partnership property by survivorship, for all purposes of holding and administering the estate, until the effects are reduced to money, and the debts paid. w The debts of the part- nership must be collected in the name of the surviving partner. 1 Profits, Distribution of. As between the partners, they may by agreement stipulate for equal or unequal shares in the profit and loss of the partnership,? but in the absence of any express agreement or stipulation between them, and of all controlling evidence and circum- stances, the presumption is held to be that they are interested in equal shares. 1 And the cir- cumstance that each partner has brought an unequal amount of capital into the common stock, or that one or more have brought in the whole capital, and the others have only brought industry, skill, and experience, would not seem to furnish any substantial ground of difference 0-3 Kent Comm. 47, 48 ; Story P.irtn. g 117, et sea.; Collyer Partn. 463. P-'i Pick. 400; 4 Met. (Mass.) 548; ii Ohio, 223; Chitty Contr. (Ed. 1860) 278, note ; Collyer Partn. 462, et seq. 469, et seq. |- i Brock. 456; i Met. 515; 7 Id. 244: 5 Hill, 107; 8 Leigh. 415. r-n M. & W. 128: but see 17 Ves. Ch. '.93, 200 ; 5 Mo. 466. S-Collyer Partn. f! 468 ; 2 Co, 68 ; 4 T. R. 519: 3 Bingh. 101 ; 3 Johns. 68; 4 Gil! & J. 310; 3 Kent Comm. 48. t-March, 202; 8 Co. 136; 23 Pick. 444 ; 3 Penn. 57 ; 5 Gill & J. 314 : 22 Pick. 305 ; Chitty Contr. (Ed. 1860) 275, n. u-t Met. (Mass.) 518, 519 ; Story Partn. g 101 ; i Brock, 456, 468 ; 3 McLean C. C. 27; Collyer Partn. g 394. v-Collyer Partn. g 346; 3 Kent Comm. 37; Story Partn. \ 346; 35 N. H. 403. W-3 Kent Comm. 37; Story Partn. g 346; Coll- yer Partn. g 129 ; 5 Met. (Mass.) 576, 585 ; 10 Gill & J. 404; 30 Me. 386; 6 Cow. 441 ; 3 Paige, 527 ; 13 Miss. L- 18 Conn. 294; see i Exch. 164: Year B. 38 Edw. nf./ 046 ; 3 _ _ Partn. ^23. z-Id. ^24: Bisset Partn. 56,' S7;'Col!ye'r Ul.f. 7, t. Accompt. 3jj6; 3 Kent Comm. 37; 4_Met. (_Mass.) 540. jr-Story c-6 Cow. 441 ; Story Partn. Partn. \ 167; i Mood. & R. 527; 6 Wend. 263; 9 Ala. 36 as to the distribution. 4 Whether a partnership includes the capital stock, or is limited to the profit and loss, must be determined from the agreement and intention of the parties.* A bona fide sale, for a valuable consideration, by one partner to another, of all the partner- ship effects, is valid, and the property so con- veyed becomes the separate estate of the pur- chaser, although the firm and both partners are at the time insolvent.* Mutual Rights Obligations. Good faith, reasonable diligence, and skill, and the exer- cise of a sound judgment and discretion, lie at the very foundation of the relation of partner- ship. The same rules and tests are to be ap- plied to the conduct of partners as are ordi- narily applied to that of trustees. Indeed, the functions, rights, and duties of partners in a great measure comprehend both those of trus- tees and agents. 4 If the partnership suffers loss from the gross negligence, unskilfulness, fraud, or other wanton misconduct of a partner in the partnership business, or from a known deviation from the partnership articles, he is ordinarily responsible over to the other partners for all losses and damages sustained thereby." A party withdrawing the funds of the concern, thereby diminishing the stock, and applying it to his own use, shall account to the others for the injury/ But if one partner, acting fairly, and for the best in his judgment, causes a loss, he is not answerable to the others.* Not only gross frauds, but intrigues for private benefit, are clearly offences against the partnership at large, and, as such, are relievable. 11 As it is the duty of the partners to devote themselves to the interests of the concern, to exercise due diligence and skill for the promo- tion of the common benefit of the partnership, it follows that they must do it without any re- ward or compensation, although the services performed by the partners are very unequal in amount and value, unless there is an express stipulation for remuneration. 1 So no partner has a right to engage in any business or specu- lation which must necessarily deprive the part- nership of a portion of his skill, industry, or capital^ nor to place himself in a position which (N. S.) 372 ; 13 Id. 732 ; 2 Murphy, 70 ; 5 Dana, 211 ; 8 Id. 214; i Ired. 332; i J. J. Marsh. 506; i Lindley Partn. 573 ; 20 Beav. Rolls, 98 ; 7 DeGex M. & G. 239 ; 17 Ves. Ch. 49; 7 Hare, 159; i Mood. & R. 527. it- Story Partn. g 24 ; 3 Kent Comm. 28, 29; 21 Me. 117. b-2i Me. 120; Collyer Partn. 3 169-171 ; see 5 Taunt. 74 ; 4 B. & C. 867 ; Story Partn. g 26. 0-9 Cush. 553 ; Collyer Partn. J 174, 894, 903 ; 21 Conn. 130, 137 ; 21 N. H. 462, 469. d-Collyer Partn. ? 178, 182 ; Story Partn. 160 ; 3 Story C. C. 93, TOI ; 3 Ves. & B. Ch. Ir. 36; i Johns. Ch. 470; 10 Hare Ch. 522, 536; 14 Beav. Rolls, 250; i Macn. & G. 294: 3 Smale & G. 419; i Lindley Partn. 492,493. e-i Sim. Ch. 89 ; Path. Partn. n. 133 ; 3 Kent Comm. 52, n. ; Story Partn. g 173, and note, f-i J. J. Marsh. 507 ; 3 Story C. C. 101. g-3 Wash. C. C. 224. h-Collyer Partn. 3 179 ; 15 Ve. Ch. 227 ; 2 Kent Comm. 51, 52 ; i Sim. Ch. 52, 89 ; 17 Ves. Ch. 298. 1-7 Paige Ch. 483 ; i Anstr. 94 ; i Johns. Ch. 157, 165 ; 8 Dana, 219 ; 4 Gill. 338 ; 2 Dev. & B. 123 ; 3 Johns. Ch. 431 ; Story Partn. g 182 ; Coll- yer Partn. J 183. j-3 Kent Comm. 51, 52; Collyer Partn. Z 184 ; Story Partn. 8 177 ; i Johns. Ch. 305; x Sim. & S. Ch. 133. 5 6o PARTNERSHIP. gives him a bias against the discharge of his duty, k nor to make use of the partnership stock for his own private benefit, 1 nor to introduce a stranger into the concern. Each partner should keep precise accounts, and have them always ready for inspection." In all ordinary matters relating to the part- nership, the powers of the partners are co-ex- tensive, and neither has a right to exclude an- other from an equal share in the management of the concern, or from the possession of the partnership effects. A partner ought not to transcend the ordinary privileges of a partner by incurring extravagant and unnecessary ex- pense in the management of the concern, though for partnership purposes.? The weight of au- thority is in favor of the power of a majority of the firm acting in good faith, to bind the minority in the ordinary transactions of the part- nership, and when all have been consulted.' It is the duty of those upon whom, by ap- pointment or otherwise, it devolves, after the dissolution of a firm, to wind up the affairs of the partnership, to act for the best advantage of the concern, to make no inconsistent use of the property, and to seek no private advantage in the composition of debts, or in any other transaction in the performance of this business.' Nor, in this case, can any partner claim any commission for getting in the debts, or, in any other particular, reward or compensation for his trouble.* Right of Action between. A partner may sue a copartner on an express agreement to do any act not involving a consideration of the part- nership accounts.* And if partners finally bal- ance all their accounts, or a distinct part thereof is entirely severed by them from the rest, a suit is maintainable for the balance.* But one part- ner cannot sue a copartner at law in respect to any matter growing out of the transactions of the partnership, and involving an examination of partnership accounts." If one of a partner- ship who are plaintiffs be also one of a partner- ship who are defendants, the action cannot be maintained ; for the same party cannot be plaintiff and defendant of record in the same action.' NAME. FIRM is the persons composing a partnership, lc Pa k-Collyer Partn. g 186 ; i Madd. & G. Ch. 367 ; Story rtn. g 175; i Sim. & S.Ch. 124; 9 Sim. Ch. 607; u Ch. 52 \ "24 C. S. 209. m-Collyer Partn. 8, 192 ; 7 Pick. 238; 8W. & S. 63: 16 Ohio, 166. n-Collyer Partn. 189 ; 2 Jac. & W. Ch. 558 ; Story Partn. 3 181 ; i6Vcs. Ch. 51; i Lindley Partn. 665, 666; 3 Beav. Rolls, 388, note; i DeGex & S. 692 ; 12 Sim. Ch. 460; 2 Phill. 222 ; 3 Younge & C. 655 ; 20 Beav. Rolls, 210. 0-Collyer Partn. \ 190 ; 2 Paige Ch. 310 ; 16 Ves. Ch. 61 ; 2 Jac. & W. Ch. 558 ; i Lindley Partn. 464. P- ' Collyer Partn. ? 191. q-3 Kent Comm. 45, and note; ice also Story Partn. 123, and notes ; 3 Chitty Com. L. 234 ; 6 Ves. Ch. 777 ; 5 Brown Parl. Cas. 476, 489 ; Turn. 234 ; 6 Ves. Un. 777 ; 5 Brown Karl. i_as. 470, 459 ; i urn. & R.Ch. 516, 525; 3 Johns. Ch. 400, 405,406; 4^.473; i Vern. Ch. 465. r-i Taunt. 104 ; I Swanst. 507 ; 2 Id. 627. B-I Knapp. Priv. Counc. 312 ; 3 Kent Comm. 64, note; Story Partn. 3 331, and note ; 17 Pick. 519; 4 Gratt. 138 ; Collyer Partn. g 199, and note. But in 16 taken collectively. The name, style or title under which the members of a partnership transact business. The word is used as synonymous with part- nership. The words "house," "concern," and " company," are also used in the same sense. This name is in point of law conven- tional, and applicable only to the persons who, on each particular occasion when the name is used, are members of the firm. A firm is usually described in legal proceedings as cer- tain persons trading or carrying on business under, and using the name, style, and firm of, etc. a It may be that the names of all the members of the partnership appear in the name or style of the firm, or that the names of only a part appear, with the addition of " and company " ("&Co."), or other words indicating a par- ticipation of others, as partners in the business, 1 * or that the name of only one of the partners, without such addition, is the name of the firm. It sometimes happens that the name of neither of the partners appears in the style of the firm. The proper style of the firm is frequently agreed upon in the partnership articles ; and where this is the case, it becomes the duty of every partner, in signing papers for the firm, to employ the exact name agreed upon. This may be necessary, not only to bind the firm itself,* but also to prevent the partner signing from incurring a personal liability both to third persons and to his copartners.* So, the name which a partnership assume, recognize, and publicly use, becomes the legitimate name and style of the firm, not less so than if it had been adopted by the articles of copartnership/ and the partner has no implied authority to bind the firm by any other than the firm-name thus acquired.' Wherefore, where a firm consisted of J. B. and C. H.,the partnership name being J. B. only, and C. H. accepted a bill in the name of J. B. & Co., it was held that J. B. was not bound thereby. 11 No FIXED NAME. If a firm have no fixed name, a signing by one, in the name of himself and company, will bind the partnership, 1 and a note in the name of one, and signed by him " for the firm," etc., will bind the company.J Where the business of a firm is to be carried Vt. 613, a partner who performed services in settling up the affairs of the firm after dissolution was allowed com- pensation for them,. See also 15 Mass. 120. t-8 Cranch, 30 ; 6 N. H. 547 ; 2 Caines, 293 ; 2 Bingh. 170 : 3 Pick. 423; Holt, 368; 26 Vt. 754; ii Pick. 82; 5 Wend. 274; 1 Stark. 78; 6 B. & C. 149; 2 T. R. 478; 2 Conn. 425; 14 Johns. 318 ; i Wend. 532 ; 2 T. R. 483, . ; 2 Bingh. 170; 16 Wend. 601 ; 3 Ala. 347; 15 Mass. 116; 13 Ala. 214 ; 12 Mass. 32 ; 19 Me. 211. n-6 B. & C. 149 ; 6 M.&W. 119; 9 Dana, 257; 3 Cal. 292 ; 15 Ga. 213. V-2 Fairf. 196; Minor (Ala.) 103: a B. & P. 120; 4 Bingh. 149; 8 B. & C. 345; 6 Taunt. 597; 2 B. & Ad. 822 ; 12 Ohio, 300; i Story, 396; 8 Yerg. "t. a-See 9 Q. B. 361 ; 9 M. & W. 347; i Chitty Bailm. 49, and ante, page 55 et sey. b-i6 Pick. 428, 429. c- Collyer Part. \ 215 ; i Story Part. ? 20*. d-Story Part. 2 102. e-Collyer Part, g 215 ; Story Part. $ 102, 202 ; 2 Jac. & W. Ch. 268; ii Ad. & E. 339; Poth. Part. . 100, 101. f-2 Pet. 186, 198. |f -9 M. & W. 284^ ll-g _f-9 M M.'& W. 284; see Dav' Dist. Ct. 325. j-5 Black f. 99. 1-2 Ohio, 61. PARTNERSHIP. 561 on in the name of B. & D., a signature of a note by the names and surnames of the respec- tive parties is a sufficient signature to charge the partnership.* Where a written contract is made in the name of one, and another is a secret partner with him, both may be sued upon it. 1 INDIVIDUAL'S NAME USED, ETC. Where partners agree that their business shall be con- ducted in the name of one person, whether himself interested in the partnership business or not, that is the partnership name, and the partners are bound by it. m Where that name is the name of one of the partners, and he does business also on his own private account, a contract signed by that name will not bind the firm, unless it appears to have been entered into for the firm ; but, if there be no proof that the contract was made for the firm, the pre- sumption will be that it was made by the part- ner on his own separate account, and the firm will not be responsible." IDENTITY OF NAME. The name of the firm should be distinct from the names of all other firms. When there is confusion in this respect, the partners composing one firm may, in some cases, be made responsible for the debts of another. Merchants and lawyers have differ- ent notions respecting the nature of a firm. Merchants are in the habit of looking upon a firm as a body distinct from the members com- posing it.P The law looks to the partners themselves ; any change among them destroys the identity of the firm ; what is called the property of the firm is their property, and what are called the debts and liabilities of the firm are their debts and their liabilities. In point of law, a partner may be the debtor or creditor of his copartners ; but he cannot be either debtor or creditor of the firm of which he is himself a member.' Suits in Firm Name. A firm can neither sue nor be sued otherwise than in the name of the partners composing it. Consequently, no ac- lion can be brought by the firm against one of its partners, nor by one of its partners against it ; for in any such action one person at least would appear both as plaintiff and defendant, and it is considered absurd for any person to sue himself even in form. r For the same rea- son, one firm cannot bring an action against another if there be one or more partners in both firms. 1 Whenever a firm is spoken of by its name or style, the courts admit evidence to show what persons did in fact constitute the firm at the time in question.* fc-3 C. B. 792. 1-a Ala. 134 ; 5 Watts. 454. _ m-6 I'M, 322; i Denio. 405, 471, 481. n-Sto 139; Collyer Part. 411, and note; 5 Pi Hill, 322; i Denio. 405, 471, 481. n-Story Part. 139; Collyer Part. 411, and note; 5 Pick, n ; o Id. 274; x Duer, 405 ; 17 S. & R. 165 ; 5 Mas. C. C. 176; 5 Pet. 529; 2 Bouv. Inst. . 1442 et seq. o-See Peake Cas. 80; 7 East. 210; 2 Bell Comm. (sth Ed.) 670; 3 Martin N. S. 39. As to the right of a surviving partner to carry on the business in the name of the firm, see 7 Sim. Ch. 127; Story Part. j> 100, ; Collyer Part. \ 162, . p-Cory Accounts (2d Ed.); Lindley Partn. c vii, p. 103. 0-4 Mylne & C. Ch. 171, 172. r-i B. & Aid. 664; 4 M. & C. Ch. 171, 172; 6 Taunt. 598; 6 Pick. 320, 321 ; 5 Gill. & I. 487 ; Collyer Part. % 642, n. M-6 Taunt. 597; a Bos. & P. 120. t-6 Taunt. 15; 4 Change in Name, etc. If persons trade or carry on a business under a name, style or firm, whatever may be done by them under that name is binding as much as if real names had been used. Any change of the persons composing a firm is productive of a new sig- nification of the name. If, therefore, a legacy is left to a firm, that is a legacy to those who compose it at the time the legacy vests ; T and if a legacy is left to the representatives of an old firm, it will be payable to the executors or the survivors of the partners constituting the firm alluded to, and not to its successors in busi- ness." Again, an authority given to a firm of two partners cannot, it would seem, be exer- cised by them and a third person afterwards taken into partnership with them.* A name may be a trade-mark ; and, if it is, the use of it by others will be illegal, if they pass them- selves or their own goods for the firm or the goods of the firm whose name is made use of.' Moreover, if this is done intentionally, the illegality will not be affected by the circum- stance that the imitators of the trade-mark are themselves of the same name as those whose mark they imitate. 1 LIMITED PARTNERSHIP. The purpose of limited partnership is to enable a party to put into the stock of a firm a definite sum of money, and abide a responsi- bility and share a profit which shall be in pro- portion to the money thus contributed, and no more.' Partnerships of this kind are wholly unknown to the common law, and are author- ized and regulated only by statute. See GEN- ERAL STATUTES. 1. The name or firm under which the part- nership business is to be conducted. 2. The general nature of the business to be transacted. 3. The names of all the general and spe- cial partners interested therein; distinguishing which are general partners and which are spe cial partners, and their respective places of residence. 4. The amount of the capital stock whicl. each special partner shall have contributed to the common stock. 5. The period at which the partnership is to commence, and the period when it will termi- nate. Such certificate must be acknowledged by the several persons signing the same, before some officer authorized by law to take the Maule & S. 13 ; 2 Keen. Rolls, 255. n-i Chitty Bailm. 707; 3 C. & P. 296; 2 Campb. 548; Hays & S. Exch. Ir. 43. v-See 2 Keen Rolls, 255; 3 Mylne & C. 507 ; j De Gex. M. & G. 673. w-n Ir. Eq. 451; i Lindley Partn. 166. x-6 Bingh. N. & C. 201 ; see 4 Ad. & E 482; 16 Sim. Ch. 121 ; 7 Hare Ch. 351; 4 Ves. Ch. 649 y-2 Keen Rolls, 213; 4 Kay & I. Ch. 747. -i3 Beav. Rolls. 209 ; 3 De Gex. M. & G. 896. a-By the com- mon law of partnership, he who had any interest in the stock and received any proportion of the profits, is a partner, and as such is liable, in solido, for the whole debts of the firm. And mere joint stock companies, without incorporation, are, as to all purposes of liability, like common partnerships. 35 Maine, 303; i Clarke (Iowa) 369 ; 7 Wend. 542 ; 4 S. & R. 356. 562 PARTNERSHIP PATENTS. acknowledgment of deeds ; and such acknowl- edgment must be made and certified in the manner provided by law for the acknowledg- ment of deeds for the conveyance of land. See GENERAL STATUTES. Partnership Certificate and Acknowl- edgment. We, the undersigned, A. B., C. D., and E. F., and G. H., as partners under the name (or firm) of B. & D., will, on the day of , com- mence the business of (here give the general nature ef the business to be transacted}, and on the day of , said partnership will terminate. The names of the general partners, and their respective places of residence, are as follows : A. B., , county, State of ; C. D., , county, State of . The names of the special partners, and their respective places of residence, are as follows : E. F., , county, State of ; and G. H., , county, State of . The amount of capital which each of said spe- cial partners has contributed to the common stock of said partnership is as follows: E. F., dollars, and G. H., dollars. A. B. C. D. E. F. G. H. For form of ACKNOWLEDGMENT, see that title, ante. Affidavit. To be Indorsed on the back of Certificate ef Partner- ship. State of , county, ss. A. B., being duly sworn, says, that he is one of the general partners of the within-named part- nership, and that the amount of money contrib- uted by each of the within-named special part- ners to the common stock thereof is as follows: E. F., dollars, G. H., dollars ; which said amounts have been actually and in good faith contributed and applied to the same. A. B. Subscribed and sworn to before me, this day of , A. D. . J. P., Justice of the Peace. Partnership Notice of Terms of. Partnership Notice. Notice is hereby given that A. B. , C. D.,and E. F., and G. H., as partners, under the name (or firm) of B. & D. , will, on the day of , com- mence the business of . and on the day of said partnership will terminate. The names of the general partners, and their respective places of residence, are as follows: A. B., , county, State of ; C. D., , , county, State of . The names of the special partners, and their respective places of residence, are as follows : E. F., , county, State of ; and G. H., , county, State of . The amount of the capital which each of said special partners has contributed to the common stock of said partnership is as follows: E. F., dollars, and G. H., dollars. Date . [ Official Signature and Sea/.] [Publish fix weeks successively.} State of , county, ss. P. P., being duly sworn, says, that he is the printer of (or, is in the employ of P. P., the printer of) the , a newspaper published in and of general circulation in said county ; and that the notice, of which the annexed is a true copy, was published for consecutive weeks in said newspaper, commencing on the day of . P. P. Subscribed and sworn to before me, this day of . [ Official Signature and Seal. ] Partnership Notice of Dissolution. Dissolution of Partnership. The partnership heretofore existing under the name of B. & D., wherein A. B., of , county, State of , and C. D., of , county, State of , were general partners, and E. F., of , county, State of , and G. b-34 Barb. 553. e-3 Kent Comm. 36 ; 3 Denio, 435 ; 34 Penn. St. 344. H., of , county, State of , were special partners, is, this day of , A. D. , dis- solved by mutual consent. A. B. C. D. E. F. G'. H. The affairs of the firm will be adjusted by C. D., at , etc. [Publish six weeks successively^ For a debt owing by all the partners, genera! and special, in a limited partnership, a suit is well brought against the general partners alone ; and a judgment and execution in such suit, levied upon the partnership property, will bind the entire interest of all the partners. 1 * ACTIONS BY AND AGAINST A LIMITED PART- NERSHIP. Special partners are not liable for the debts of the partnership beyond the amount of funds contributed by them respectively to the common stock, and all sums by them re- ceived, withdrawn, or divided, with interest thereon from the time when they were so with- drawn or divided, if they comply with the re- strictions of the law. If they do not they be- come general partners, and, as such, are liable, in solido, for the whole debts of the firm." Parturition. See MEDICAL LAW, "Birth." Party. See BILLS, BONDS, AND NOTES; CON- TRACTS, ETC. Party Walls. See REAL PROPERTY. Pass-book. See ACCOUNTS. Passengers. See BAILMENTS, "Common Car- riers of." Pastures. See REAL PROPERTY. PATENTS. See COPYRIGHTS ; CONTRACTS ; CON- VEYANCES. Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and use- ful improvement thereof, not known nor used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or dis- covery thereof, and not in public use or on sale for more than two years prior to his application (unless the same is proved to have been aban- doned), may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor. See STATUTES, and RULES OF PRACTICE, below. Revised Statutes at Large, Forty-third Congress, Approved June 22, 1874. (As Amended by Act of Congress Approved August 15, 1876.) Subject. Sec. Abandonment by delay of two years averted when Commissioner is satis- fied that delay was unavoidable .. 4894 of application by delay of two years 4854 Action for infringement .... 4919 plea 49 20 Administrator or executor to make oath, when 4896 Alien may file caveat after one year's residence and declaration . . . 49 02 Amendment in reissue shall not intro- duce new matter .... 49'6 Annual report, when made and what to contain 494 Appeal from board of examiners-in- chief 4904 from examiner of interferences . 4904 mode of proceeding .... 4888-4891 twenty days allowed in case of in- terference 494 PATENTS. 56? Subject, to Commissioner from exam* iners-in-crtief to examiners-in-chief from ex- aminer of interferences to examiners-in-chief after second rejection to Supreme Court, District of Co- lumbia Applicant, oath of, before whom taken shall be notified of interference Application, abandonment of, by delay of two years for patent, what to contain may be made by executor or ad- ministrator must be completed within two years must be sworn to by inventor, if living right of purchaser before Appointments, how made Article patented must be so marked . Assignment by instrument in writing must be recorded within three months Assignments must be recorded in Patent-Office Assistant Commissioner, how ap- pointed salary of . . . . Bill in equity may be filed to compel issue of patent Bonds of Commissioner, chief clerk, and financial clerk . . . . Caveat, any citizen who desires time to complete invention may file . shall be filed in confidential ar- chives when interfering must be com- pleted within three months Certificate of copyright (Chapter 301, 1874) of extension of trade-mark of extension shall be recorded . required in filing trade-mark . Certified copies, of foreign patents of trade-mark to be evidence shall be furnished to Supreme Court in appeals .... to be placed in the clerk's office of United States courts to be used in evidence Chief clerk, salary of .... to give bond Claim, what to cover .... Clerk of United States court may sum- mon witness in interference cases . Commissioner, appeal to ... how appointed maybe summoned as witness by Supreme Court, District of Co- lumbia may establish rules in interference cases salary of shall be notified of hearings by Supreme Court of District of Co- lumbia Hommissioner shall cause examination to be made shall hear and decide tn extension cases ....'... shall not record device which can- not be a lawful trade-mark . to control registration of labels ("Chapter 301, 1874', . to countersign patents to establish regulations . to establish rules for taking testi- mony to give bond to have charge of all books, records, models, etc to have charge of collections of ex- ploring expedition .... to make rules for transfer trade- marks . . . Sec. 4010 4909 4909 4911-4914 4893 4904 4894 4896 4894 4895 4899 476 4898 4895 476 477 49^5 479 4902 4903 4903 5 4927 3 893 4 490, 894 892 440 479 4906 4910 478 4913 49<>5 477 4913 4893 4937 4939 4883 483 4905 479 481 495 Subject. See. Commissioner to prescribe regulation! in filing trade-marks to report annually to Congress . 494 to superintend grant of patents un- der direction of Secretary of the Interior 481 Composition of matter, specimens of ingredients may be required . . 4890 Contracts for lithographing, how awarded 493 Copyright, articles protected by, must be marked (Chapter 301, 1874) . construction of statute (Chapter 301, 1874) fee for recording (Chapter 301, 1874) . . . what may be protected by (Chapter 301, 1874) . , . Counterfeiting trade-mark, penalties (act August 14, 1876) . . . . ... Damages cannot be recovered unless defendant has been notified of in- fringement 49Od for infringement, how obtained . 49'9 Decision of Commissioner, appeal from 4911-4914 Design patents, extension of . . . 4932 subject to same provisions as other patents ...... 4933 for what granted .... 4929 Designs, term of patent for . . . 4931 Disbursements, by disbursing clerk of Interior Department, all . . . 496 Disclaimer, effect of .... 4917 how filed 4917 must be filed before commence- ment of suit 4922 Division of patent on reissue . . . 4916 Draftsman, skilled, salary of . . . 440 Drawing and specification shall be part of patent 4884 attached to patent as part of speci- fication 4889 how signed and witnessed . . 4889 in reissue shall not be amended ex- cept by model 4916 Drawings and specifications, how sup- plied to public libraries . . . 491 to be printed 490 copyist of, salary .... 440 Examination, applicant shall be no- tified of rejection on .... 4903 in reissue applications . . . 4916 in applications for extension . . 4? :6 to be made of alleged invention . 4"93 Examiner, first assistant, salary of . 440 in charge of interferences . . . 4 iu duty of 49 3 4 of trade-marks, salary of . . . 440 principal, salary of . . . . 440 to report in extension cases . . 4C 3 *> second assistant, salary of . . 443 third assistant, salary of . . . 440 Examiners-in-chief, duties of 482, 4Qcq how appointed 476 legal and scientific ability of . . 482 salary of 477 Examiners maybe summoned as wit- nesses 4013 Exemplary damages .... 4919, 4921 Extension, application for, must be advertised 492,5 application for, referred to prin- cipal examiner .... 4926 certificate of, shall be recorded . 49 2 7 Extension, evidence for and against, shall be heard by Commissioner . 4927 of patent, effect of .... 4927 of patent granted prior to March 2, 1861 4924 of trade-mark c shall inure to assignees to extent of their interest .... 49^8 sworn statement t accompany application fo\ .... 4924 Pee for registering label (Chapter 301, 1874) 5*4 PATENTS. Subject, Sec. Pees, amount of . . . . . 4934 how paid 4935 to witness in interference cases . 4907 Final fee, if not paid within six months, patent withheld 4885 Foreign patent, to give date to Ameri- can patent, when 4887 trade-mark, to limit duration of American 5 use no bar to grant of patent . . 4923 Forfeited application, renewal of . . 4897 Infringement, action for . . . . 4919 of trade-mark, penalty for . . 7 plea and special matters to be proved 4930 Injunctions may be granted by court having jurisdiction .... 4930 Interference, applicant shall be notified of 4904 Interfering patents, how set aside . 49 1 " Label, fee for registration of (Chapter 301, 1874) ... Labels (Chapter 301, 1874) . . . . . . Laborer, skilled, salary of ... 440 Librarian, salary of 440 Library 486 Machinist, salary of .... 440 Marine engines, patented, must be rec- ommended by board of engineers . *537 Messenger and purchasing clerk, sal- ary of 440 Model in reissue shall not be amendtd except by drawing .... 4916 Model-room, attendants in ... 440 to be kept open 484 Model shall be furnished if required . 4891 Models in design cases may be dis- pensed with ..'... 493O in rejected applications may be re- turned 485 rejected, may be disposed of . . 485 specimens, etc., how arranged . 484 Money paid by mistake, how refunded 4936 received to be paid into Treasury . 4935 Oath, in trade-marks .... s made by executor or administrator in case of decease of inventor . 4896 of applicant, before whom taken . 4893 what to cover and by whom ad- ministered 4893 Officers and employees not to ac^'jire interest in patents .... 480 Papers, badly written, printed at cost of party filing 488 Patent-agent, punishment by Commis- sioner subject to approval of Secre- tary 487 Patent, a printed description bars the grant of 4886 Patent, duration of 4884-4886 for what granted .... 4886 foreign use no bar to grant of . 4887 Office, in Department of Interior . 475 to be withheld for non-payment of final fee 4885 to bear date, when .... 4885 to expire at same time with foreign 4887 what to contain 4884 Patents, employees of Patent Office not to acquire interest in ... 480 how issued, attested and recorded 4883 may be granted to assignee . . 4895 shall be countersigned by the Com- missioner 4883 shall be signed by the Secretary of the Interior 4883 Patented article must be marked . . 4900 Patentee shall be notified of interfer- ence 4904 Penalty for deceptive marking of un- patented article 4901 for false registration of trade-mark 9 Printed , claims of current issues may be 489 laws, decisions, regulations, and circulars may be .... 489 papers not legibly written to be . 488 specifications and drawings may be 490 Subject. Priority of invention determined by primary examiner .... Public libraries, how supplied with copies of specifications and drawings Purchaser not liable for infringement on article made prior to application . Purchasing clerk and messenger, sal- ary of Records of patents Re-examination to be made after first rejection, if desired .... Reissue application must be sworn to by inventor in patents granted since July 8, 1870 by reason of defective specification for unexpired term of original patent Reissue may be granted to assignee, when Reissue patent to contain no new mat- ter Rejected applications, renewal of Rejection, applicant shall be notified of reasons for Renewal of forfeited application . Report to Congress, when and what to contain Revised Statutes, accrued rights re- served under acts of limitation not affected by . arrangement and classification of. do not repeal acts passed since December 1, 1873 .... penalties and punishments under . repeal provisions .... what to embrace .... Royalty not to be paid to United States officers for use of Springfield breech- loading system Rules for taking testimony, Commis- sioner to establish .... Seal of Patent Office .... Specification and drawing shall be part of patent defective, reissue to correct . in reissue may be amended on suf. ficient proof shall be signed and witnessed Specifications and drawings, how sup- plied to public libraries and drawings, sale of ... and drawings to be printed . and drawings, uncertified, price of Specimens, may be required when Statute, construction of, in copyright (Chapter 301, 1874) . Statutes, Revised, what to embrace . Supreme Court, District of Columbia, appeal to may revise decisions of Commis- sioner Surrender of old patent to take effect on reissue Trade-mark, certificate required in fil- ing certified copies to be evidence . Commissioner to prescribe regula- tions for filing duration ot ... fac-simile to be registered . . fee in filing . . < former rights at law preserved . fraudulently registered, to rendet liable (or damages . how extended in use under act July 8, 1870, maybe recorded free under present rules penalty for counterfeiting . protection afforded by rights at common law not abridged by statute unlawful or fraudulent, not pro- tected what may be a lawful . ' . who may obtain protection for Trade-marks, accompanying declara- tion under oath . ... Sec 4904 49* 4899 44<> 475 493 4895 4916 4916 4895 4916 4897 49>3 4897 494 5597 5599 5600 5601 5598 5596 5595 1673 495 47 4884 4916 4916 4888 49* 491 490 493 4890 5595 49H-49M 49>4 4916 PATENTS. S65 Subject. Sec. Trade-marks, penalties for counterfeit- ing, etc. (act March 3, 1881) rules for transfer to conform to law of copyrights 4947 United State* courts may grant in- junctions 4921 to have certified copies of all pat- ents 490 United States officers not to receive royalty for Springfield breech-load- ing system 1673 Unpatented article, penalty for decep- tive mark 4901 Witness, fees of, in interference cases 497 , in interference summoned by clerk i of United States courts . . 4906 when in contempt .... 493 OR<; AMZATIO V OF THE PATENT OFFICE. Title XI, Rev. Stat., s. 440, p. 74. There shall be in the department of the in- terior in the patent-office : One chief clerk, at a salary of two thousand two hundred and fifty dollars a year. One examiner in charge of interferences, at a salary of two thousand five hundred dollars a year. One examiner in charge of trade-marks, at a salary of two thousand two hundred and fifty dollars a year. Twenty-two principal examiners, at a salary of two thousand five hundred dollars a year each. Twenty-two first assistant examiners, at a salary of one thousand eight hundred dollars a year each. Twenty-two second assistant examiners, at a salary of one thousand six hundred dollars a year each. Twenty-two third assistant examiners, at a salary of one thousand four hundred dollars a year each. One librarian, at a salary of one thousand eight hundred dollars a year. One machinist, at a salary of one thousand six hundred dollars a year. Three skilled draughtsmen, at a salary of one thousand two hundred dollars a year each. Thirty-five copyists of drawings, at a salary f?f one thousand dollars a year each. One messenger and purchasing clerk, at a salary of one thousand dollars a year. One skilled laborer, at a salary of one thou- sand two hundred dollars a year. Eight attendants in the model-room, at a salary of one thousand dollars a year each. Eight attendants in the model-room, at a salary of nine hundred dollars a year each." Establishment of the Patent Office. SEC. 475. There shall be in the depart- ment of the interior an office known as the ^.itent office, where all records, books, models, drawings, specifications, and other papers and things pertaining to patents shall he safely kept and preserved. 1 * Officers and Employees. SEC. 476. There shall be in the patent office a commissioner of patents, one assistant com- a-Act Aug. is, 1876. fo-8 July, 1870, c. 230, 2 i, v. i. p. 198. c-Id. 2 t, p. 198. d-Id. 2 4, p. 199* -Id. missioner, and three examiners-in-chief, who shall be appointed by the president, by and with the advice and consent of the senate. All other officers, clerks, and employees authorized by law for the office shall be appointed by the secretary of the interior, upon the nomination of the commissioner of patents. See sec. 169; also act of August 15, 1876. Salaries. SEC. 477. The salaries of the officers men- tioned in the preceding section shall be as follows : The commissioner of patents, four thousand five hundred dollars a year. The assistant commissioner of patents, three thousand dollars a year. Three examiners-in-chief, three thousand dollars a year each. 4 Seal. SEC. 478. The seal heretofore provided for the patent office shall be the seal of the office, with which letters patent and papers issued from the office shall be authenticated. 6 Bonds of Commissioner and Chief Clerk. SEC. 479. The commissioner of patents and the chief clerk, before entering upon their duties, shall severally give bond, with sureties, to the treasurer of the United States, the former in the sum of ten thousand dollars, and the latter in the sum of five thousand dollars, con- ditioned for the faithful discharge of their respective duties, and that they shall render to the proper officers of the treasury a true ac- count of all money received by virtue of their offices/ Restrictions upon Officers and Em- ployees. SEC. 480. All officers and employees of the patent office shall be incapable, during the period for which they hold their appointments, to acquire or take, directly or indirectly, except by inheritance or bequest, any right or interest in any patent issued by the office.* Duties of Commissioner. SEC. 481. The commissioner of patents, under the direction of the secretary of the in- terior, shall superintend or perform all duties respecting the granting and issuing of patents directed by law ; and he shall have charge of all books, records, papers, models, machines, and other things belonging to the patent office.* Duties of Examiners-in-Chief. SEC. 482. The examiners-in-chief shall be persons of competent legal knowledge and scientific ability, whose duty it shall be, on the written petition of the appellant, to revise and determine upon the validity of the adverse de- cisions of examiners upon applications for pat- ents, and for reissues of patents, and in inter- ference cases ; and, when required by the com- missioner, they shall hear and report upon claims for extensions, and perform such other like duties as he may assign them. 1 Establishment of Regulations. SEC. 483. The commissioner of patents, Id. , p. aoo. f-Id. i 6, p. 199. gr-Id. 2 16, f. aoo. h- 7, P- 199- i-8 July, 1870, c. 330. 2 io, v. 16, p. 199. 5 66 PATENTS. subject to the approval of the secretary of the interior, may from time to time establish regu- lations, not inconsistent with law, for the con- duct of proceedings in the patent office.* Arrangement and Exhibition of Models, etc. SEC. 484. The commissioner of patents shall cause to be classified and arranged in suitable cases, in the rooms and galleries provided for that purpose, models, specimens of composi- tion, fabrics, manufactures, works of art, and d. -signs, which have been or shall be deposited in the patent office; and the rooms and gal- leries shall be kept open during suitable hours for public inspection. 11 Disposals of Models on Rejected Appli- cations. SEC. 485. The commissioner of patents may restore to the respective applicants such of the models belonging to rejected applications as he shall not think necessary to be preserved, or he may sell or otherwise dispose of them after the application has been finally rejected for one year, paying the proceeds into the treasury, as other patent moneys are directed to be paid. 1 Library. SEC. 486. There shall be purchased for the use of the patent office a library of such scien- tific works and periodicals, both foreign and American, as may aid the officers in the dis- charge of their duties, not exceeding the amount annually appropriated for that purpose. See act of August 15, 1876. Patent-Agents may be refused Recog- nition. SEC. 487. For gross misconduct the com- missioner of patents may refuse to recognize any person as a patent-agent, either generally or in any particular case ; but the reasons for such refusal shall be duly recorded, and be subject to the approval of the secretary of the interior." Printing of Papers Filed. SEC. 488. The commissioner of patents may require all papers filed in the patent office, if not correctly, legibly, and clearly written, to be printed at the cost of the party filing them.* Printing Copies of Claims, Laws, De- cisions, etc. SEC. 489. The commissioner of patents may print, or cause to be printed, copies of the claims of current issues, and copies of such laws, deci- sions, regulations, and circulars as may be neces- sary for the information of the public. P Printing Specifications and Drawings. SEC. 490. The commissioner of patents is authorized to have printed, from time to time, jfor gratuitous distribution, not to exceed one 'hundred and fifty copies of the complete speci- fications and drawings of each patent hereafter issued, together with suitable indexes, one copy to be placed for free public inspection in each capital of every State and Territory, one for the like purpose in the clerk's office of the district court of each judicial district of the United States, except when such offices are located in J-8 July, 1870, c. 230, J 19, p. 200. fe-Id. ? 13, p. TOO. 1-Id. \ 14, p. 200. m-fd. J is, p. 200. n-Id. g 17, p. oo. O-Id. 3 18. p. 200. p- Id. $ 20, p. 200. q-njan., State or territorial capitols, and one in the library of congress, which copies shall be cer- tified under the hand of the commissioner and seal of the patent office, and shall not be taken from the depositories for any other purpose than to be used as evidence.i Additional Specifications and Draw- ings. SEC. 491. The commissioner of patents is authorized to have printed such additional numbers of copies of specifications and draw- ings, certified as provided in the preceding sec- tion, at a price not to exceed the contract price for such drawings, for sale, as may be warranted by the actual demand for the same ; and he is also authorized to furnish a complete set of such specifications and drawings to any public library which will pay for binding the same into volumes to correspond with those in the patent office, and for the transportation of the same, and which shall also provide for proper custody for the same, with convenient access for the public thereto, under such regulations as the commissioner shall deem reasonable.* Lithographing and Engraving. SEC. 492. The lithographing and engraving required by the two preceding sections shall be awarded to the lowest and best bidders for the interests of the government, due regard being paid to the execution of the work, the work to be done under the supervision of the commis- sioner of patents, who shall receive competitive bids therefor. 8 Act of August 15, 1876. Price of Copies of Specifications and Drawings. SEC. 493. The price to be paid for uncer- tified printed copies of specifications and draw- ings of patents shall be determined by the com- missioner of patents, within the limits of ten cents as the minimum and fifty cents as the maximum price.* Annual Report of the Commissioner. SEC. 494. The commissioner of patents shall lay before Congress, in the month of January, annually, a report, giving a detailed statement of all moneys received for patents, for copies of records or drawings, or from any other source whatever; a detailed statement of all expenditures for contingent and miscellaneous expenses; a list of all patents which were granted during the preceding year, designating under proper heads the subjects of such patents; an alphabetical list of all the patentees, with their places of residence ; a list of all patents which have been extended during the year ; and such other information of the condition of the patent office as may be useful to Congress or the public." See $$ 195, 196. Custody of Collections of Exploring Expedition. SEC. 495. The collections of the exploring expedition, now in the patent office, shall be under the care and management of the com- missioner of patents. T 1871, Res. No. 5, v. 16, p. 590. r-Id. s-Id. ; 24 Mar., 1871, c. 5, { i, v. 17, p. 2. t-Id. g 2, p. 3. u-8 July, 1870, c. 230, 9, Y. 16, p. 199. v-4 Aug. 1854, c. 242. 4 8, v. 10, p. 572. PATENTS. 567 Disbursements for Patent Office. SEC. 496. All disbursements for the patent office shall be made by the disbursing clerk of the interior department. (Copies of Records, etc. TITLE XIII., Rev. Stat., p. 168. SEC. 892. Written or printed copies of any records, books, papers, or drawings belonging to the patent office, and of letters patent au- thenticated by the seal and certified by the commissioner or acting commissioner thereof, shall be evidence in all cases wherein the originals could be evidence; and any person making application therefor, and paying the fee required by law, shall have certified copies thereof. 1 Copies of Foreign Letters Patent. SEC. 893. Copies of the specifications and drawings of foreign letters patent, certified as provided in the preceding section, shall be prima facie evidence of the fact of the grant- ing of such letters patent, and of the date and contents thereof.? Printed Copies of Specifications and Drawings. SEC. 894. The printed copies of specifica- tions and drawings of patents, which the com- missioner of patents is authorized to print for gratuitous distribution, and to deposit in the capitals of the States and Territories, and in the clerk's offices of the district courts, shall, when certified by him and authenticated by the seal of his office, be received in all courts as evi- dence of all matters therein contained. 1 Patented Articles connected with Ma- rine Engines. TITLE XV., Rev. Stat., p. 261 : SEC. 1537. No patented article connected with marine engines shall hereafter be pur- chased or used in connection with any steam vessels of war until the same shall have been submitted to a competent board of naval engi- neers, and recommended by such board, in writing, for purchase and use.* \o Royalty to be paid by the United States to its Officers for Patent men- tioned in preceding Section. (Springfield breach-loading system.) TITLE XVII., Rev. Stat., p. 292 : SEC. 1673. No royalty shall be paid by the United States to any one of its officers or em- ployees for the use of any patent for the system, or any part thereof, mentioned in the preced- ing section, nor for any such patent in which said officers or employees may be directly or indirectly interested. 1 * W-8 July, 1870, c. 230, g 69, v. 16, p. 200. x-Id. 57, p. 207 ; Brooks et al. vs. Jenkins et al. 3 McLean, 432; P. vs. H. 4 McLean, 370; P. -vs. D. 4 Wash. C. C. 215 ; L. vs. B. 2 Fish. 89 (see i Bond, 361) ; W. vs. H. Wood. & Min. 260; E. vs. H. 2 Blatch. 12. y-Id. 57, p. 207. z-n Jan., 1871, Res. 5, v. 16, p. 590. a- 18 July, 1861, c. 8, 3, v. 12, p. 268. b-6 June, 1872, c. 316, v. 17, p. 261. C-8 July, 1870, . 230, 21, v. 16, p. 200; D. vs. W. 6 Blatch. 429. d-Id. 22, p. 201 ; S. vs. W. 4 How. 709 ; P. vs. W. 2 Story, 614 ; S. vs. R. i Paine, 441; E. vs. H. 6 Blatch. 9: D. vs. W. 2 Blatch. 429 ; W. vs. E. Baldw. 314 ; B. vs. B. 3 Mc- Lean, 297. e-Id. g 23, p. 201. f-Id. \ 24, p. 201 ; G. vs. B. 10 How. 477; H. vs. G. ii How. 248; LeR. vs. T. 14 How, 156; O'R. vs. M. 15 How. 62; C. vs. B. 15 How. 252 ; K. vs. W. 21 How. 322 ; A. vs. B. & N. 2 El. 699 ; B. vs. D. i Wall. 521 ; I vs. B. 7 Wall. 395 ; T. vs. B. 7 Wall. 337 ; A. Co. vs.J.j Wall, 583 ; PATENTS. Patents, how Issued, Attested, and Re- corded. TITLE LX., Rev. Stat., Chap, i, p. 953 : SEC. 4883. All patents shall be issued in the name of the United States of America, under the seal of the patent office, and shall be signed by the secretary of the interior and countersigned by the commissioner of patents, and they shall be recorded, together with the specifications, in the patent office, in books to be kept for that purpose." Contents and Duration. SEC. 4884. Every patent shall contain a short title or description of the invention or discovery, correctly indicating its nature and design, and a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery throughout the United States, and the Territories thereof, referring to the specification for the particulars thereof. A copy of the specification and drawings shall be annexed to the patent and be a part thereof." 1 Date of Patent. SEC. 4885. Every patent shall bear date as of a day not later than six months from the time at which it was passed and allowed and notice thereof was sent to the applicant or his agent ; and if the final fee is not paid within that period the patent shall be withheld. 6 What Inventions are Patentable. SEC. 4886. Any person who has invented or discovered any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement thereof, not known nor used by others in this country, and not patented or described in any printed pub- lication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor.' Patents for Inventions previously patented abroad. SEC. 4887. No person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid, by reason of its having been first patented or caused to be patented in a foreign country, unless the same has been introduced into public use in the United States for more than two years prior to the application. But W. vs. S. 7 Wall. 685 ; R. Co. vs. G. o Wall. 788; S. vs. W. 10 Wall. 117; G. Co. vs. W. 14 Wall. 511; M. vs. W. 14 Wall. 620 ; C. vs. B. 17 Wall. 463 ; C. vs. O. 18 Wall. 120; H. vs. K. 18 Wall. 670; W. vs. P. i Gallis. 437; O. vs. W. 2 Gallis. 51 ; A. vs. H. i Sumn. 432 : R. vs. G. 3 Sumn. 518; H. vs. A. 2 Story, 194; B. vs. S. 2 Story. 411 ; C. vs. B. Manuf. Co. 2 Story, 438; H. vs. S. 3 Wood. & M. 17 : F. vs. S. i Blatch. 445 ; P. vs K. t Blatch. 493 ; H. vs. W. 2 Blatch. 194; McC. vs. S. 2 Blatch. 240; E vs. R. 4 Blatch. 307; M. vs. The N. Y. Eye Inf. 5 Blatch. 116 ; H. vs. S. 7 Blatch. 58 ; R. P.V. K. & G. i Wash. 171 ; P. vs. L. & W. ; Wash. 108 : K vs. The Schuylkill Bank, 4 Wash. \2 ," "V. vs. E. B.iMw. 314: G. vs. The Railroad, 2 Wall., jr., 360; S. vs. P. 2 McLean, 178; R. vs. B. & D. 4 McLean, 77 ; H. vs. G. & W. 4 McLean, 461 ; S. vs. H. i Fisk. Pat. Cas. 475; P. w. S. 3 Fish. Pat. Cas. 476. PATENTS. every patent granted for an invention which lias been previously patented in a foreign coun- iry shall be so limited as to expire at the same lime with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it be in force more than seventeen years.* Requisites of Application, Description, Specification, ami Claim. SEC. 4888. Before any inventor or discoverer shall receive a patent for his invention or dis- covery, he shall make application therefor, in writing, to the commissioner of patents, and shall lile in the patent office a written description of the same, and of the manner and process of mak- ing, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same ; and in case of a machine, he shall explain the principle thereof, and the best mode in which he has contem- plated applying that principle, so as to distin- guish it from other inventions; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery. The specification and claim shall be signed by the inventor and attested by two witnesses. 11 Drawings, when Requisite. SEC. 4889. When the nature of the case admits of drawings, the applicant shall furnish one copy signed by the inventor or his attorney in fact, and attested by two witnesses, which shall be filed in the patent office ; and a copy of the drawing, to be furnished by the patent office, shall be attached to the patent as a part of the specification. 1 Specimens of Ingredients, etc. SEC. 4890. When the invention or discovery is of a composition of matter, the applicant, if required by the commissioner, shall furnish specimens of ingredients and of the composi- tion, sufficient in quantity for the purpose of experiment.! Model, when Requisite. SEC. 4891. In all cases which admit of rep- resentation by model, the applicant, if required by the commissioner, shall furnish a model of convenient size to exhibit advantageously the several parts of his invention or discovery . k Oath required from Applicant. SEC. 4892. The applicant shall make oath that he does verily believe himself to be the original and first inventor or discoverer of the art, machine, manufacture, composition, or im- provement for which he solicits a patent ; that he does not know and does not believe that the g-8 July, 1870, c. 230, g 25, v. 16, p. 201 ; O'R. vs. M. 15 How. 62 ; H. vs. S. i Fish. Pat. Cas. 532 ; J. vs. C. i Fish. Pat. Cas. 615. h-Id. 't 26, p. 201 ; E. vs. E. 7 Wh. 434 : W. vs. U. 5 How. i ; H. vs. E. ix How. 587; O'K. vs. M. 15 How. 62; C. vs. B. 15 How. 252 ; LeR. vs. T. 22 How. 132 ; P. vs. P. 24 How. 164 ; T. 9t. B. 7 Wall. 327 ; C. vs. B. 17 Wall. 463 ; L. vs. DeG. i Paine, 203; S. vs. R. i Paine, 450; M. vs. J. x Blatck. 37? ; G. & O. vs. J. Pet. C. C. 401 ; P. vs. L. same was ever before known or used ; and shall state of what country he is a citizen. Such oath may be made before any person within the United States authorized by law to admin- ister oaths, or when the applicant resides in a foreign country, before any minister, charge d'affaires, consul, or commercial agent, holding commission under the government of the United States, or before any notary public of the foreign country in which the applicant may be. 1 Examination and Issuing: Patent. SEC. 4893. On the filing of any such appli- cation and the payment of the fees required by law, the commissioner of patents shall cause an examination to be made of the alleged new invention or discovery; and if on such exami- nation it shall appear that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and impor- tant, the commissioner shall issue a patent therefor. Limitation upon Time of Completing Applications. SEC. 4894. All applications for patents shall be completed and prepared for examination within two years after the filing of the applica- tion, and in default thereof, or upon the failure of the applicant to prosecute the same within two years after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satis- faction of the commissioner of patents that such delay was unavoidable." Patents Granted to Assignee. SEC. 4895. Patents may be granted and is- sued or reissued to the assignee of the in- ventor or discoverer; but the assignment must first be entered of record in the patent office. And in all cases of an application by an as- signee for the issue of a patent, the applica- tion shall be made and the specification sworn to by the inventor or discoverer; and in all cases of an application for a reissue of any patent, the application must be made and the corrected specification signed by the inventor or discoverer, if he is living, unless the patent was issued and the assignment made before the eighth day of July, eighteen hundred and seventy. When and on what Oath Executor or Administrator may Obtain Patent. SEC. 4896. When any person, having ma.de any new invention or discovery for which a patent might have been granted, dies before a patent is granted, the right of applying for and obtaining the patent shall devolve on his ex- ecutor or administrator, in trust for the heirs at & W. 3 Wash. 198 ; B. & M. vt. B. & J. 3 McLean, 250. i-Id. \ 27, p. 201 : O'R. vs. M. 15 How. 62 ; W. vs. G. 3 Stoiy, 133. J-8 July, 1870, c. 230, j? 28, v. 16, p. 201. It-Id. 3 29, p. 201; H. vs. E. 6 How. 437; McC. vs. T. 20 How. 409. 1-Id. i 30, p. 202; H. vs. E. 6 How. 437; W. vs. C. i GalJ. 429; C. vs. B. Mills, 3 Fish. Pat. Cas. 536. m-Id. g 31, p. 202. ii-Id. j! 32, p. 202 ; B. vs. D. i Bond, 212. o-Id. Q 33, p. 202 : 3 March, 1871, c. 132, v. 16, p. 583; G. vs. L. 10 How. 477; S. vs. W. 3 Fish. Pat. Cas. 343. PATENTS. 569 law of the deceased, in case he shall have died intestate ; or if he shall have left a will, dis- posing of the same, then in trust for his devi- sees, in as full manner and on the same terms and conditions as the same might have been claimed or enjoyed by him in his lifetime ; and when the application is made by such legal representatives, the oath or affirmation required to be made shall be so varied in form that it can be made by them.P Renewal of Application In Cases of Failure to Pay Fees in Season. SEC. 4897. Any person who has an interest in an invention or discovery, whether as in- ventor, discoverer, or assignee, for which a patent was ordered to issue upon the payment of the final fee, but who fails to make payment thereof within six months from the time at which it was passed and allowed, and notice thereof was sent to the applicant or his agent, shall have a right to make an application for a patent for such invention or discovery the same as in the case of an original application. But such second application must be made within two years after the allowance of the original application. But no person shall be held re- sponsible in damages for the manufacture or use of any article or thing for which a patent was ordered to issue under such renewed applica- tion prior to the issue of the patent. And upon the hearing of renewed applications preferred under this section, abandonment shall be con- sidered as a question of fact.' Assignments of Patents. SEC. 4898. Every patent or any interest therein shall be assignable in law by an instru- ment in writing; and the patentee or his as- signs or legal representatives may, in like man- ner, grant and convey an exclusive right under his patent to the whole or any specified part of the United States. An assignment, grant, or conveyance shall be void as against any subse- quent purchaser or mortgagee for a valuable consideration, without notice, unless it is re- corded m the patent office within three months from the date thereof.* 1 Persons Purchasing; of Inventor, etc., may Use or Sell the Thing: Purchased. SEC. 4899. Every person who purchases of the inventor, or discoverer, or with his knowl- edge and consent constructs any newly invented or discovered machine, or other patentable article, prior to the application by the inventor or discoverer for a patent, or who sells or uses one so constructed, shall have the right to use, and vend to others to be used, the specific thing so made or purchased, without liability therefor.' Patented Articles Must be Marked as Back. SEC. 4900. It shall be the duty of all pat- entees, and their assigns and legal representa- p-8 July, 1870, c 330, j) 34, v. 16, p. to* ; R. Co. vs. G. 9 Wall. 788. q-Id. # 35, p 202. r-Id ? 36, p. 203 ; W. vs. W. 4 How. 712 . W. vs. S o How. 109 ; G. vs. W. 10 How 494: B. vs. McQ 14 How. 539: K. vs. P. 18 How. 289 ; H. vs. D. 19 How. 211 : R. R. Co 7>s. T. 10 Wall. 367 ; N. P. Co. vs. J. 14 Wall. 452 ; A. vs. it. 17 Wall. 453; E. w. D 18 Wall. 414; G. vs. C. 4 tives, and of all persons making or vending any patented article for or under them, to give suf- ficient notice to the public that the same is patented ; either by fixing thereon the word " patented," together with the day and year the patent was granted; or when, from the character of the article, this cannot be done, by fixing to it, or to the package wherein one or more of them is enclosed, a label containing the like notice; and in any suit for infringement, by the party failing so to mark, no damages shall be recovered by the plaintiff, except on proof that the defendant was duly notified of the infringement, and continued, after such notice, to make, use, or vend the article so patented. 1 Penalty for Falsely Marking: or Label- ling: Articles as Patented. SEC. 4901. Every person who, in any man- ner, marks upon anything made, used, or sold by him for which he has not obtained a patent, the name or any imitation of the name of any person who has obtained a patent therefor, without the consent of such patentee, or his assigns or legal representatives; or Who, in any manner, marks upon or affixes to any such patented article the word " patent " or " patentee," or the words " letters patent," or any word of like import, with intent to imitate or counterfeit the mark or device of the patentee, without having the license or consent of such patentee or his assigns or legal repre- sentatives; or Who, in any manner, marks upon or affixes to any unpatented article the word " patent " or any word importing that the same is patented, for the purpose of deceiving the public, Shall be liable, for every such offence, to a penalty of not less than one hundred dollars, with costs; one-half of said penalty to the person who shall sue for the same, and the other to the use of the United States, to be recovered by suit in any district court of the United States within whose jurisdiction such offence may have been committed. Filing; and Effect of Caveats. SEC. 4902. Any citizen of the United States who makes any new invention or discovery, and desires further time to mature the same, may, on payment of the fees required by law, file in the patent office a caveat setting forth the design thereof, and of its distinguishing characteristics, and praying protection of his right until he shall have matured his invention. Such caveat shall be filed in the confidential archives of the office and preserved in secrecy, and shall be operative for the term of one year from the filing thereof; and if application is made within the year by any other person for a patent with which such caveat would in any manner interfere, the commissioner shall de- Blatch 271; P. vs. C. 7 Blatch. 195; B. vs. McC. i Bond, 194 : H. vs W. j Bond, 407 ; P. vs. J. 15 Barb. (N. Y.) 310. s-8 July, 1870, c. 230, ff 37, v. 16, p. 203 , K. vs. W. 21 How. 322 ; S. v s. S. 2 Ciiri. C. C. 555 ; R. vs. B. & D. 4 McLean, 177. t-Id. 38, p. ^03 R. Co. vs. G. 9 Wall. 788 ; G. vs. A. 6 Blatch. 33. n-Jd. g 39, p. 203. 570 PATENTS. posit the description, specification, drawings, and model of such application in like manner in the confidential archives of the office, and give notice thereof, by mail, to the person by whom the caveat was filed. If such person desires to avail himself of his caveat, he shall file his description, specifications, drawings, and model within three months from the time of placing the notice in the post-office in Wash- ington, with the usual time required for trans- mitting it to the caveator added thereto; which time shall be indorsed on the notice. An alien shall have the privilege herein granted, if he has resided in (foe United States one year next preceding the filing of his caveat, and has made oath of his intention to become a citizen. T Notice of Rejection of Claim for Patent to be Given to Applicant. SEC. 4903. Whenever, on examination, any claim for a patent is rejected, the commissioner shall notify the applicant thereof, giving him briefly the reasons for such rejection, together with such information and references as may be useful in judging of the propriety of renew- ing his application or of altering his specifica- tion; and if, after receiving such notice, the applicant persists in his claim for a patent, with or without altering his specifications, the commissioner shall order a re-examination of the case. w Interferences. SEC. 4904. Whenever an application is made for a patent which, in the opinion of the commissioner, would interfere with any pend- ing application, or with any unexpired patent, he shall give notice thereof to the applicants, or applicant and patentee, as the case may be, and shall direct the primary examiner to pro- ceed to determine the question of priority of invention. And the commissioner may issue a patent to the party who is adjudged the prior inventor, unless the adverse party appeals from the decision of the primary examiner, or of the board of examiners-in-chief, as the case may be, within such time, not less than twenty days, as the commissioner shall prescribe. 1 Affidavits and Depositions. SEC. 4905. The commissioner of patents may establish rules for taking affidavits and depositions required in cases pending in the patent office, and such affidavits and deposi- tions may be taken before any officer authorized by law to take depositions to be used in the courts of the United States, or of the State where the officer resides.' Subpoenas to Witnesses. SEC. 4906. The clerk of any court of the United States, for any district or Territory wherein testimony is to be taken for use in any contested case pending in the patent office, shall, upon the application of any party there- to, or of his agent or attorney, issue a subpoena for any witness residing or being within such district or Territory, commanding him to ap- pear and testify before any officer in such dis- V-8 July, 1870, c. 130, \ 40, v. 16, p. 203 ; B. vs. D. i Bond, 213. w-Id. | 41, p. 204. x-ld. 42, p. 204. y-8 July, 1870, c. 230, g 43, v. 16, p. 204. z-ld. ft -M, trict or Territory authorized to take depositions and affidavits, at any time and place in the subpcena stated. But no witness shall be re- quired to attend at any place more than forty miles from the place where the subpcena is served upon him.* Witness Fees. SEC. 4907. Every witness duly subpoenaed and in attendance shall be allowed the same fees as are allowed to witnesses attending the courts of the United States.* Penalty for Failing: to Attend or Re- fusing to Testify. SEC. 4908. Whenever any witness, after being duly served with such subpoena, neglects or refuses to appear, or after appearing refuses to testify, the judge of the court whose clerk issued the subpoena may, on proof of such neglect or refusal, enforce obedience to the process, or punish the disobedience, as in other like cases. But no witness shall be guilty of contempt for disobeying such sub- poena, unless his fees and travelling expenses in going to, returning from, and one day's attend- ance at the place of examination, are paid or tendered him at the time of the service of the subpoena; nor for refusing to disclose any secret invention or discovery made or owned by himself. 1 * Appeals from Primary Examiners to Examiners-in-Chief. SEC. 4909. Every applicant for a patent or for the reissue for a patent, any of the claims of which have been twice rejected, and every party to an interference, may appeal from the decision of the primary examiner, or of the examiner in charge of interferences in such case, to the board of examiers-in-chief; having once paid the fee for such appeal. 6 From Examiners-in-Chief to Commis- sioner. SEC. 4910. If such party is dissatisfied with the decision of the examiners-in-chief, he may, on the payment of the fee prescribed, appeal to the commissioner in person. 4 From the Commissioner to the Sn- preme Court, District of Columbia. SEC. 4911. If such party, except a party to an interference, is dissatisfied with the decision of the commissioner, he may appeal to the supreme court of the District of Columbia, sitting in bane. 6 Notice of snch Appeal. SEC. 4912. When an appeal is taken to the Supreme Court of the District of Columbia, the appellant shall give notice thereof to the commissioner, and file in the patent office, within such time as the commissioner shall appoint, his reasons of appeal, specifically set forth in writing.' Proceedings on Appeal to Supreme Court. SEC. 4913. The court shall, before hearing such appeal, give notice to the commissioner of the time and place of the hearing, and on receiving such notice the commissioner shall 45, p. 204. a-Id. ?45. b-Id. $44, 45- e-Id. J 46. d- Id. g 47, p. 205. e-Id. g 48. f-8 July, 1870, c. *jo, } 49, v. 16, p. 206. PATENTS. 57 1 give notice of such time and place in such manner as the court may prescribe, to all par- ties who appear to be interested therein. The party appealing shall lay before the court cer- tified copies of all the original papers and evi- dence in the case, and the commissioner shall furnish the court with the grounds of his de- cision, fully set forth in writing, touching all the points involved by the reasons of appeal. And at the request of any party interested, or of the court, the commissioner and the exami- ners may be examined under oath, in explana- tion of the principles of the thing- for which a patent is demanded. 11 Determination of su-h Appeal and its Effect. SEC. 4914. The court, on petition, shall hear and determine such appeal, and revise the decision appealed from in a summary way, on the evidence produced before the commis- sioner, at such early and convenient time as the court may appoint ; and the revision shall be confined to the points set forth in the reasons of appeal. After hearing the case the court shall return to the commissioner a certificate of its proceedings and decision, which shall be entered of record in the patent office, and shall govern the further proceedings in the case. But no opinion or decision of the court in any such case shall preclude any person interested from the right to contest the validity of such patent in any court wherein the same may be called in question. 1 Patents* obtainable by Bill In Equity. SEC. 4915. Whenever a patent on applica- tion is refused, either by the commissioner of patents or by the Supreme Court of the District of Columbia upon appeal from the commis- sioner, the applicant may have remedy by bill in equity ; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to re- ceive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudica- tion, if it be in favor of the right of the appli- cant, shall authorize the commissioner to issue such patent on the applicant filing in the patent office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases, where there is no opposing party, a copy of the bill shall be served on the commis- sioner; and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not.J (See g 629, p. 9.) Reissue of Defective Patents. SEC. 4916. Whenever any patent is inopera- tive or invalid, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or dis- h-Id.Jsi. Md.Jso. j-Id.? 5 . k-8 July, 1870, c. B 3. 53. v - J 6, p. 205 ; S. 7>s. C. 7 Pet. 292 ; W. vs. R. 4 How. 646 ; M. vs. G. i Bl. 273 ; R. vs. B. a Wall. 501 ; C vs. W. 4 Wall. 522 ; B vs. F. 8 Wall. 445 i M. vs. L 8 Wall, a ^o; S.vs.O. n Wall. 516: C. vs. B. 17 Wall. 463; A. vt. H. iSumii. 488; C. vs. B. Manuf. Co. 2 Story, 439; covery more than he had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudu- lent or deceptive intention, the commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in ac- cordance with the corrected specification, to be issued to the patentee, or, in case of his death or of an assignment of the whole or any undi- vided part of the original patent, then to his executors, administrators, or assigns, for the unexpired part of the term of the original patent. Such surrender shall take effect upon the issue of the amended patent. The com- missioner may, in his discretion, cause several patents to be issued for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the re- quired fee for a reissue for each of such reis- sued letters patent. The specifications and claim in every such case shall be subject to revision and restriction in the same manner as original applications are. Every patent so reissued, together with the corrected specifica- tion, shall have the same effect and operation in law, on the trial of all actions for causes thereafter arising, as if the same has been orig- inally filed in such corrected form; but no new matter shall be introduced into the speci- fication, nor in case of a machine patent shall the model or drawings be amended, except each by the other ; but when there is neither model nor drawing, amendments may be made upon proof satisfactory to the commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mistake, as aforesaid. k Disclaimer. SEC. 4917. Whenever, through inadvertence, accident, or mistake, and without any fraudu- lent or deceptive intention, a patentee has claimed more than that of which he was the original or first inventor or discoverer, his patent shall be valid for all that part which is truly and justly his own, provided the same is a material or substantial part of the thing patented ; and any such patentee, his heirs or assigns, whether of the whole or any sectional interest therein, may on payment of the fee required by law, make disclaimer of such parts of the thing patented as he shall not choose to claim or to hold by virtue of the patent or as- signment, stating therein the extent of his interest in such patent. Such disclaimer shall be in writing, attested by one or more wit- nesses, and recorded in the patent office ; and it shall thereafter be considered as part of the original specification to the extent of the inter- est possessed by the claimant and by those 57* PATENTS. claiming under him after the record thereof. But no such disclaimer shall affect any action pending at the time of its being filed, except so far as may relate to the question of unrea- sonable neglect or delay in filing it. 1 Suits Touching Interfering Patents. SEC. 4918. Whenever there are interfering patents, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inop- erative, or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented. But no such judgment or adjudication shall affect the right of any person, except the parties to the suit and those deriving title under them subsequent to the rendition of such judg- ment." 1 Suits for Infringement; Damages. SEC. 49x9. Damages for the infringement of any patent may be recovered by action on the case, in the name of the party interested, either as patentee, assignee, or grantee. And when- ever in any such action a verdict is rendered for the plaintiff, the court may enter judgment thereon for any sum above the amount found by the verdict as the actual damages sustained, according to the circumstances of the case, not exceeding three times the amount of such ver- dict, together with the costs." Pleading and Proof in Actions for Infringement. SEC. 4920. In any action for infringement the defendant may plead the general issue, and having given notice in writing to the plaintiff or his attorney, thirty days before, may prove, on trial, any one or more of the following special matters : 1. That for the purpose of deceiving the public the description and specification filed by the patentee in the patent office was made to contain less than the whole truth relative to his invention or discovery, or more than is neces- sary to produce the desired effect ; or, 2. That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same ; or, 3. That it had been patented or described in some printed publication prior to his supposed invention or discovery thereof; or, I-Id. ? 54, p. ao6; S. vs. F. 14 How. 218 ; O'R. vs. M. 15 How. 121 ; S. vs. McC. 19 How. 206 ; W. vs. S. i Story, 294 ; R. vs. C. i Story, 600 ; G. vs. S. i Blatch. 44 : H. vs. W. 2 Blatch. 198 ; T. vs. B. 6 Blatch. 95 ; VV. vs. E. i Baldw. 313; B. vs. J. 4 McLean, 440. ni- ls July, 1870, c. 230, \ 58, v. 16, p. 207. n-Id. \ 59, p. aoj ; D. vs. M. 20 How. 198 ; Corp. of N. Y. vs. R. 23 How. 487 ; M. vs. M. 7 Wall. 515 ; M. vs. W. 14 Wall. 6.-o ; M. vs. H. 16 Wall. 544 : P. vs. N. 17 Wall. 460. O-IJ. J 61, p. 208 ; B. vs. P. 8 Wall. 420; W. vs. A. 9 Walk 737. p-8 July, 1870, c. 230, J 55, v. 16, p. 206 ; 4. That he was not the original and first in- ventor or discoverer of any material and sub- stantial part of the thing patented ; or, 5. That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been aban- doned to the public. And in notices as to proof of previous in- vention, knowledge, or use of the thing patented, the defendant shall state the names of pat- entees and the dates of their patents, and when granted, and the names and residences of the persons alleged to have invented, or to have had the prior knowledge of the thing patented, and where and by whom it had been used ; and if any one or more of the special matters alleged shall be found for the defend- ant, judgment shall be rendered for him with costs. And the like defences may be pleaded in any suit in equity for relief against an alleged infringement ; and proofs of the same may be given upon like notice in the answer of the de- fendant, and with the like effect. Power of Courts to Grant Injunctions and Estimate Damages. SEC. 4921. The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions ac- cording to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable ; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby; and the court shall assess the same or cause the same to be as- sessed under its direction. And the court shall have the same power to increase such damages, in its discretion, as is given to increase the dam- ages found by verdicts in actions in the nature of actions of trespass upon the case.P Suit for Infringement Where Specification is too Broad. SEC. 4922. Whenever, through inadvertence, accident, or mistake, and without any wilful default or intent to defraud or mislead the pub- lic, a patentee has, in his specification, claimed to be the original and first inventor or discov- erer of any material or substantial part of the thing patented, of which he was not the orig- inal and first inventor or discoverer, every such patentee, his executors, administrators, and assigns, whether of the whole or any sectional interest in the patent, may maintain a suit at law or in equity, for the infringement of any part thereof, which was bonafi.de his own, if W. vs. W. 4 How. 712 ; H. vs. E. n How. 587 ; L. vt. W. 15 How. 546; S. vs. McC. 16 How. 489 ; D. vs. M. 20 How. 198; Corp. of N. Y. vs. R. 23 How. 487; M. vs. M. 7 Wall. 515; R. Co. vs. G. 9 Wall. 788; M. vs. W. 14 Wall. 629 ; M. vs. H. 16 Wall. 544 : P. vs. N. 17 Wall. 460; N. vs. C. i Wood. & M 34; W. vs. E. 3 Wood. & M. 120; W. vs. W. i Blatch. 165; A. vs. B. i Blatch. 486: W. vs. S. i Blatch. 536; G. vs. D. i Blatch. 565 ; G. vs. R. Co. 4 Blateh. 63 ; T. vs L. 4 Blatch. 86; G. vs. A. 6 Blatch. 33 : O. vs. E. 4 Wash. 584; B. vs. Manuf. Co. 3 Wall. jr. 196; B. vs.S. 3 Mc- Lean, 523 ; H. vs. W. i Bond, 407. PATENTS DESIGNS. 573 it is a material and substantial part of the thing patented, and definitely distinguishable from the parts claimed without right, notwith- standing the specifications may embrace more than that of which the patentee was the first inventor or discoverer. But in every such case in which a judgment or decree shall be ren- dered for the plaintiff, no costs shall be recov- ered unless the proper disclaimer has been entered at the patent office before the com- mencement of the suit. But no patentee shall be entitled to the benefits of this section if he has unreasonably neglected or delayed to enter a disclaimer. 11 Patent not Void on Account of Previous Use in Foreign Country. SEC. 4923. Whenever it appears that a pat- entee, at the time of making his application for the patent, believed himself to be the orig- inal and first inventor or discoverer of the thing patented, the same shall not be held to be void on account of the invention or discovery, or any part thereof, having been known or used in a foreign country, before his invention or dis- covery thereof, if it had not been patented or described in a printed publication. 8 Extension of Patents Granted Prior to March 2, 1861. SEC. 4924. Where the patentee of any in- vention or discovery, the patent for which was granted prior to the second day of March, eighteen hundred and sixty-one, shall desire an extension of this patent beyond the original term of its limitation, he shall make applica- tion therefor in writing to the commissioner of patents, setting forth the reasons why such ex- tension should be granted; and he shall also furnish a written statement under oath of the ascertained value of the invention or discovery, and of his receipts and expenditures on account thereof, sufficiently in detail to exhibit a true and faithful account of the loss and profit in any manner accruing to him by reason of the invention or discovery. Such application shall be filed not more than six months nor less than ninety days before the expiration of the orig- inal term of the patent ; and no extension shall be granted after the expiration of the original term.* Wbat Notice of Application for Extension Must be Given. SEC. 4925. Upon the receipt of such appli- cation and the payment of the fees required by law, the commissioner shall cause to be pub- lished in one newspaper in the city of Wash- ington, and in such other papers published in the section of the country most interested ad- versely to the extension of the patent as he may deem proper, for at least sixty days prior to the day set for hearing the case, a notice of such application, and of the time and place when r-8 July, 1870, c. 230, 60, v. 16, p. 207; O'R. vs. M. 15 How. 62 ; S. vs. McC. 19 How. 106 ; S. vs. F. 20 How. 378 ; V. vs. C. i Bl. 427 ; W. vs. S. i Story, 273; R. vs. C. i Story, 600; P. vs. W. 2 Story, 621 ; G. vs. S. i Blatch. 244; H. vs. W. 2 Blatch. 198, 199; B. vs. J. 3 McLean, 449. s-Id. $ 62, p. 208; J. vs. C. i Bond, 327; B. vs. S. i Fish. Pat. Cas. 516; H. vs. M. i Fish. Pat. Cas. 586. t-8 July, 1870, c. 230, g 63, v. 16, p. ao8; C. wr.'W. 4 Wall. 522. and where the same will be considered, that any person may appear and show cause why the extension should not be granted." Applications for Extension, to Whom to be Referred. SEC. 4926. Upon the publication of the notice of an application for an extension, the commissioner shall refer the case to the prin- cipal examiner having charge of the class of inventions to which it belongs, who shall make the commissioner a full report of the case, stating particularly whether the invention or discovery was new and patentable when the original patent was granted. r Commissioner to Hear and Decide the Question of Extension. SEC. 4927. The commissioner shall, at the time and place designated in the published notice, hear and decide upon the evidence pro- duced both for and against the extension; and if it shall appear to the satisfaction of the com- missioner that the patentee, without neglect or fault on his part, has failed to obtain from the use and sale ot his invention or discovery a reasonable remuneration for the time, ingenu- ity, and expense bestowed upon it, and the in- troduction of it into use, and that it is just and proper, having due regard to the public in- terest, that the term of the patent should be extended, the commissioner shall make a cer- tificate thereon, renewing and extending tins patent for the term of seven years from the ex- piration of the first term. Such certificate shall be recorded in the patent office ; and thereupon such patent shall have the same effect in law as though it had been originally granted fcv twenty-one years.' Operation of Extensions. SEC. 4928. The benefit of the extension of a patent shall extend to the assignees an 54 PATENTS. Perspicuity, Stimlf MST. etc. d. Drawings should be made with the fewest /ines possible consistent with clearness. By observing this rule the effectiveness of the work after reduction will be much increased. Shading (except on sectional views) should be used only on convex and concave surfaces, where it should be used sparingly, and may even there be dispensed with if the drawing is otherwise well executed. The plane upon which a sectional view is taken should be indi- cated on the general view by a broken or dotted line. Heavy lines on the shade sides of objects should be used, except where they tend to thicken the work and obscure letters ef refer- ence. The light is always supposed to come from the upper left-hand corner, at an angle of forty-five degrees. Imitations of wood or surface-graining must never be attempted. Scale. e. The scale to which a drawing is made ought to be large enough to show the mechan- ism without crowding, and two or more sheets should be used if one does not give sufficient room to accomplish this end ; but the number of sheets must never be increased unless it is absolutely necessary. On the other hand, when an invention is simple and easily understood, it should be shown on a small scale, and un- necessary space should not be occupied, even on a single sheet. It often happens that an invention, although constituting but a small part of a machine, has yet to be represented in connection with other and much larger parts. In such cases a gen- eral view on a small scale is recommended, with one or more of the invention itself on a much larger scale. Letter* of Reference. f. Letters of reference must be well and carefully formed ; they are of the first impor- tance. When at all possible, no letter of refer- ence should measure less than one-eighth of an inch in height, that it may bear reduction to one-twenty-fourth of an inch, and they may be much larger when there is sufficient room. Reference letters must be so placed in the close and complex parts of drawings as not to interfere with a thorough comprehension of the same, and to this end should rarely cross or mingle with the lines. When necessarily grouped around a certain part, they should be placed at a little distance, where there is avail- able space, and connected by short broken lines with the parts to which they refer. They must never appear upon shaded surfaces, and, when it is difficult to avoid this, a blank space must be left in the shading where the letter occurs, so that it shall appear perfectly distinct and separate from the work. If the same part of an invention appears in more than one figure, it should always be rep- resented by the same letter. When it is necessary to turn a drawing upon its side in reading a certain figure, its number uid reference letters should be made to corre- spond, and should be so placed that the sheet will be turned to the right. Signatures ami Title. g. The signature of the inventor is to be placed at the lower right-hand corner of the sheet, and the signatures of the witnesses at the lower left-hand corner, all within the mar- ginal line. (See specimen sheet.) The title should be written with pencil on the back of the sheet. The permanent names and title will be supplied subsequently by the office in uniform style. Arrangement of Flgnres, etc. When figures are larger than the width of the sheet, the latter is turned on its side, and the space for heading will be left at the right, and that for the signatures at the left, occupy- ing the same space and position as in the up- right subjects, so that the heading and names will read right when the drawing is held in an upright position. Special Figure for Official Gazette. h. As a rule, one view only of each inven- tion can be shown in the Gazette illustra- tions. The selection of that portion of a drawing best calculated to explain the nature of the specific improvement would be facili- tated, and the final result improved, by the judicious execution of a figure with express reference to the Gazette, but which might, at the same time, act as one of the figures re- ferred to in the specification. For this purpose, the figure may be a plan, elevation, section, or perspective view, according to the judgment of the draughtsman. It must not cover a space exceeding sixteen square inches. All its parts should be especially open and distinct, with very little or no shading, and it must illustrate the invention claimed only, to the exclusion of all other details. (See Fig. I., opposite page 42.) When well executed, it will be used without curtailment or change ; but any attempt at excessive fineness, crowding, or unnecessaiy elaborateness of detail, will insure its rejection for Gazette purposes. How Transmitted. i. Drawings should be rolled for transmission to the office, not folded. To Contain Nothing Irrelevant. No agent's nor attorney's stamp, nor any written address, will be permitted upon the face of a drawing within or without the mar- ginal line. These rules do not apply to drawings for de- signs and trade-marks, as the office does not duplicate these. (See Rules for Designs and Trade-Marks.) Conformity of Drawings to Rules, How Enforced. 20. The foregoing rules relating to drawings will be rigidly enforced; and all drawing not artistically executed in conformity therewith will be returned to the respective applicants, or, at the applicant's option and cost, the office will make the necessary corrections. Specimen Drawings Furnished. 21, A specimen drawing, illustrating arrange- PATENTS. 585 metit, style, and quality of work, will be fur- nished upon request. New Drawing* on Reissues,, 22. All reissue applications must be accom- panied by new thick paper drawings, as in orig- inal applications. Employing Artists Advised. 23. Applicants are advised to employ com- petent artists to make their drawings. MODEL. Models, Win- 11 Required What tbey Must Show. 24. A model will be required in every case where the nature of the invention admits of such illustration, except in applications upon designs. It must clearly exhibit every feature of the machine which forms the subject of a claim of invention, but should not include other matter than that covered by the actual in- vention or improvement, unless it is necessary to the exhibition of a working model. When the invention is a. composition of matter, a specimen of each of the ingredients and of the composition, properly marked, must accompany the application. How Made. 25. The model must be neatly and substan- tially made of durable material, metal being deemed preferable ; and should not in any case be more than one foot in length, width, or height. If made of pine or other soft wood, it should be painted, stained, or varnished. Glue must not be used, but the parts should be so connected as to resist the action of heat or moisture. Working Models Desirable. 26. A working model is always desirable, in order to enable the office fully and readily to understand the precise operation of the machine. Returning Models. 27. The model, unless it is deemed neces- sary that it be preserved in the office, or unless it be otherwise disposed of, may be returned to the applicant upon demand, and at his expense, in all cases where an application has been re- jected more than two years ; and the model, in any pending case of less than two years' standing, may be returned to the applicant upon the filing of a formal abandonment of the application, signed by applicant in person. Returning: Exhibits. 28. Models filed as exhibits, in interference and other cases, may be returned to the appli- cant or otherwise disposed of at the discretion of the commissioner. THE EXAMINATION. Order of Making Examinations. 29. All cases in the patent office are classi- fied and taken up for examination in regular order; those in the same class being examined and disposed of, as far as practicable, in the order in which the respective applications are completed. When, however, the invention is deemed of peculiar importance to some branch of the public service, and when, for that reason, the head of some department of the govern- ment specially requests immediate action, the casa will be taken up out of its order. These, with applications for extensions, for reissue, and for letters patent for inventions for which a foreign patent has already been obtained, which cases have precedence over all others, are the only exceptions to the above rule in relation to the order of examination. If an application is found to conflict with a caveat, its examination will be suspended as herein- after provided. The first step in the examination of any application will be to determine whether it is, in all respects, in proper form. If, however, an objection as to form is not vital, the exami- ner may proceed to the consideration of the application on its merits; but in such case he must, in his first letter to applicant, state all his objections, whether formal or otherwise. Attendance of Applicants Unnecessary. 30. Ihe personal attendance of the appli- cant at the patent office is unnecessary. The business can be done by correspondence or by attorney ; and if there has been an assignment of the whole or of an undivided part of the invention, the assignee, or, in the latter case, the assignee and the inventor jointly, will be recognized as the proper party to prosecute the application. When Amendments may be Made. 31. The applicant has a right to amend after the first rejection; and he may amend as often as the examiner presents any new references. After a second rejection, and at any time before the issue of a patent, special amendments may be made on approval by the commissioner, if sufficient reason therefor be shown. But such amendments must first be submitted to the tribunal last acting on the case, for recommen- dation or objection. Affidavits in support of applications will not be received at any stage of the examination, unless the office denies that the device is operative. Requisites of Amendments. 32. All amendments of the model, drawings, or specification, in the case of original applica- tions which are capable of illustration by draw- ing or model, must conform to at least one of them as they were at the time of the filing of the application; further changes than this can only be made by filing a new application. If the invention does not admit of illustration by drawing, amendment of the specification may be made upon proof satisfactory to the commis- sioner that the proposed amendment is a part of the original invention. How They Must be Drawn. All amendments of specifications or claims must be made on separate sheets of paper from the original, and must be filed in the manner above directed. Even when the amendment consists in striking out a portion of the specifi- cation or other paper, the same course should be observed. No erasure must be made by the applicant. In every case of amendment the exact word or words to be stricken out or inserted should be clearly specified, and the precise point indicated where the erasure or insertion is to be made. PATENTS. Proceeding* on Rejection. 33. "Whenever, on examination, any claim for a patent is rejected for any reason whatever, the applicant will be notified thereof, and the reasons for such rejection will be given, to- gether with such information and references as may be useful in judging of the propriety of prosecuting his application or of altering his specification; and if, after receiving such notice, he shall persist in his claim for a patent, with or without altering his specification, the case will be re-examined. luruisliiiiu Specific Reference**, and Copies or References. 34. Upon the rejection of an application for want of novelty, the examiner must cite the best references at his command, and the appli- cant will, if he demands it, be entitled to a specific reference (by name, date, and class, or the equivalent thereof) to the article or articles by which it is anticipated. If he desires a copy of the cases so referred to, or of the plates or drawings connected with them, they will be forwarded to him, if in the possession of the office, on payment of the cost of making such copies. Reference of Abandoned Case. 35. When the rejection of an application is founded upon another case previously rejected, but not withdrawn or abandoned, the applicant will be furnished with all information in rela- tion to the previously rejected case which is necessary for the proper understanding and management of his own. But this rule does not authorize the citation of pending applica- tions as references. Specifications to be Corrected as Re- quired. 36. The specification, especially if the claim be amended, must be amended and revised, if required by the examiner, for the purpose of correcting inaccuracies of description or un- necessary prolixity, and of securing correspond- ence between the statement and description of the invention and the claim. Mere errors of orthography or of grammatical construction will be corrected by the examiner in charge. No Removing Papers. Copies Fur- nished. 37. The office will not return specifications for amendment ; and in no case will any per- son be allowed to take any papers, drawings, models, or samples from the office. If appli- cants have not preserved copies of such papers as they wish to amend, the office will furnish them on the usual Jerms. J>ATE OF PATENT. Dating Patents: Withheld if Final Fee is not Paid. 38. Every patent will bear date as of a day not later than six months from the time at which the application was passed and allowed and notice thereof was mailed to the applicant or his agent, and if the final fee (or, in case (he fee has been paid to the treasurer or any of the assistant treasurers, or any of the designated depositaries of the United States, the certificate of deposit) be not received at the office within that period, the patent will be withheld, The party may, however, obtain a patent upon a new application, as hereinafter provided. A patent will not be antedated. WITHDRAWN AND REJECTED AP- PLICATIONS. Renewing Applications. 39. When an application for a patent has been rejected and the applicant fails to renew the same, or to file a new one within two years after the date when notice of the last official action was mailed to him or to his agent, his application will be held to have been aban- doned. Any act which calls such rejected applica. tion up for farther consideration, within the time mentioned, will be regarded as constitut- ing a renewal. Fees Required with Renewed Applica- tion. 40. When a new application is filed in place of an old one, a new fee will invariably be required. Delay Must be Sufficiently Accounted For. 41. Upon the hearing of applications at- tempted to be renewed after the expiration of the two years after any action thereon, it must be shown to the satisfaction of the commis- sioner that such delay was unavoidable. APPEALS. Appeals to Examiners-in-Chief. 42. Every applicant for a patent or the reissue of a patent, any of the claims of which have twice been rejected, may appeal from the decision of the primary examiner in such case to the board of examiners-in- chief, having once paid a fee of ten dollars. For this purpose a petition in writing must be filed, signed by the party, or his authorized agent or attorney, praying an appeal, and set- ting forth the reasons upon which the appeal is taken. Reasons of Appeal and Answer. This statement of the reasons of appeal should point out distinctly and specifically the supposed errors of the examiner's action, and should constitute a brief of the argument upon which the applicant will rely in support of his appeal. Before the appeal is entertained by the board, this statement will be submitted to the primary examiner, who will make answer in writing touching all the points involved therein. If the appellant desires to be heard orally before the board, he should so indicate when he files his appeal; a day of hearing will then be fixed, and due notice of the same be given him. Proceedings on Appeal. 43. The examiners-in-chief will consider the case as it was when last passed upon by the primary examiner, merely revising his de- cisions so far as they were adverse to the ap- pellant. If, however, they discover any reason not given by the examiner, why a patent should not issue, they should make a statement to that effect to the commissioner. If affidavits are received under Rule 31, after the case has been appealed, the applica- PATENTS. 587 tion will be remanded to the examiner for re- consideration. Prerequisite*! to Appeal. 44. There must be two rejections upon the claims as originally tiled, or, if amended in a matter of substance, upon the amended claims ; and all the claims must be passed upon and all preliminary and intermediate questions must be settled before the case is appealed to the board. Appeal from Examiner to Commis- sioner. , Decisions of examiners upon preliminary or intermediate questions, or refusals to act, once repeated, will be re-examined, by the commis- sioner in person, upon written application set- ting forth the grounds of the appeal, and answer thereto by the examiner as in other ap- peals. For appeals of this class no fee is required. Rehearing of Appealed Cases. 45. Cases which have been heard and de- cided on appeal will not be reopened by the examiner without the written authority of the commissioner; and cases which have been decided by the examiners-in-chief will not be reheard by them, except upon the same authority. Cases which have been deliberately decided by one commissioner will not be reconsidered by his successor upon the same state of facts. They may, however, be reopened in accord- ance with the general principles which govern the granting of new trials. Appeals from Examiners-in-Chlef. 46. All cases which have been acted on by the board of examiners-in-chief may be brought before the commissioner in person, upon a writ- ten request to that effect, and upon the payment of the fee of twenty dollars required by law. Appeals to Supreme Court Proceed- ings. 47. From an adverse decision upon the claims of an application an appeal may be taken to the supreme court of the District of Columbia sitting in bane. In taking such ap- peals the applicant is required, under the rules of the court, to pay to the clerk of the court a docket-fee of ten dollars, and he is also re- quired by law to lay before the court certified copies of all the original papers and evidence in the case. The petition should be filed and the fee paid at least ten days before the com- mencement of the term of court at which the appeal is to be heard. Immediately upon taking an appeal the ap- pellant must give notice thereof to the commis- sioner of patents, and file in the patent office his reasons of appeal, specifically set forth in writing. The docket for the trial of cases appealed from the decision of the commissioner of pat- ents will be called on the first day of each session of the supreme court of the District of Columbia in general term. These sessions are held three in each year, and begin respectively on the first Monday in January, the third Mon- day in April, and the fourth Monday in Sep- tember. Appeal in Interference Cases None to Supreme Court. 48. In cases ol interference parties have the same remedy by appeal to the examiners-in- chief, and to the commissioner, as in ex-parte cases ; but no appeal lies in such cases from the decision of the commissioner. Appeals in interference cases should be accompanied with a brief statement of the reasons therefor; and both parties will be required to file briefs of their arguments at least five days before the day of hearing. Printed briefs are in all cases preferred. HEARINGS. Hearings, Regulations for. 40. All cases pending before the commis- sioner, the board of examiners-in-chief, or the examiner in charge of interferences, will stand for argument at 12 o'clock on the day of hearing, unless some other hour be specially designated. If either party in a contested case, or the appellant in an ex-parte case, appears at that time, he will be heard, but a contested case will not be taken up for oral argument after the day of hearing, except by the consent of both parties. If the engagements of the tribunal before whom the case is pending are such as to prevent it from being taken up on the day of hearing, a new assignment will be made, or the case will be continued from day to day until heard. Unless otherwise ordered before the hearing begins, oral arguments will be limited to one hour for each counsel. After any case has been argued, nothing further re- lating thereto will be heard unless requested by the tribunal having the decision of the case; and all interviews for this purpose, with parties in interest or their attorneys, will be invariably denied. MOTIONS IN CONTESTED CASES. Motions, Regulations for. 50. In contested cases reasonable notice of all motions, and copies of the motion, papers, and affidavits, must be served upon the oppo- site party or his attorney. Proof of such ser- vice must be made before the motion will be entertained by the office; and motions will not be heard in the absence of either party except upon default after due notice. Motions will be heard in the first instance by the officer or tribunal before whom the particular case may be pending; but an appeal from the decision rendered may be taken to the commissioner in person. INTERFERENCES. 51. An " interference " is a proceeding in- stituted for the purpose of determining the question of priority of invention between two or more parties claiming the same patentable subject-matter. It may also be resorted to for the purpose of procuring evidence relating to the alleged abandonment or the public use of an invention. Before the declaration of an interference all preliminary questions must be settled by the primary examiner, and the issue clearly de- fined; the invention which is to form the sub- ject of the controversy must be decided to be 5 88 PATENTS. patentable, and the claims of the respective parties must be put in such condition that they will not require alteration after the interference has been finally decided, unless the testimony adduced upon the trial should necessitate such change. (See $ 41.) When l>eclared. An interference will be declared in the fol- lowing cases : First. When two or more parties have ap- plications pending before the office at the same time, and their respective claims conflict in whole or in part. Second. When two or more applications are pending at the same time, in each of which a like patentable invention is shown or described, and claimed in one though not specifically claimed in all of them. Third. When an applicant, having been re- jected upon an unexpired patent, claims to have made the invention before the patentee. Interferences with Patents. 52. The fact that one of the parties has al- ready obtained a patent will not prevent an interference ; for, although the commissioner has no power to cancel a patent already issued, he may, if he finds that another person was the prior inventor, give him a patent also, and thus pi ace both parties on an equal footing before the courts and the public. Preliminary Interferences; Proceed- ing's. Preliminary Statements. 53. Before the declaration of an interference proper a preliminary interference will be de- clared, in which the primary examiner will no- tify the respective parties when the applications of the other parties were filed, together with their names and residences. Each party to the interference will be required to file a state- ment under oath, giving a detailed history of the invention, showing the date of the original conception, and the date that the invention was reduced to drawings or model, and the date of its completion, and the extent and character of use. The parties will be strictly held in their proof to the dates set up in their preliminary statements. This statement must be sealed up before filing (to be opened only by the examiner of interferences), and the name of the party filing it and the subject of the invention indicated on the envelope. These statements shall not be open to the inspection of the opposing parties until both have been filed, or until the time for filing both has expired; nor then, until they have been examined by the proper officer and found to be satisfactory. At the time of the examination of the preliminary statements the examiner of interferences will also make an examination of the preliminary declaration (instituted by the primary examiner), in order to ascertain whether or not the issue between the parties has been clearly defined. If it be found, upon such examination, that the preliminary declara- tion is ambiguous in this particular, the inter- ference will be suspended and the case returned to the primary examiner for amendment. Effect of Preliminary Statement. If the party upon whom rests the burden oi proof fails to file a preliminary statement, or if his statement fails to overcome the/rzwa facie case made by the respectives dates of applica- tion, or if it shows that he has abandoned his invention, or that it has been in public use more than two years before his application, the other party will be entitled to an immediate adjudication of the case upon the record; un- less a presumption is created that his right to a patent is affected by the alleged public use of the invention, in which case the interference may be proceeded with. If the earlier applicant fails to file a prelimi- nary statement, no testimony will subsequently be received from him going to prove that he made the invention at a date prior to his appli- cation. The preliminary statement can in no case be used as evidence in behalf of the -party making it. Its use is to determine whether the interference shall be proceeded with, and to serve as a basis of cross-examination for the other party. If either party requires a postponement of the time for filing the preliminary statements, he must present his reasons therefor, in the form of an affidavit, prior to the day previously fixed upon. Hearing of Interferences. 54. Where no testimony is taken by the ap- plicant upon whom rests the burden of proof, or where testimony has been taken by such ap- plicant, but not by the other party during the time assigned to the latter, the case will be considered closed, and upon motion duly made at the expiration of the time assigned to such parties, respectively, may be set for hearing at any time not less than ten days thereafter. Appeals In Interferences. 55. In cases of interlerence appeals may be taken to the examiners-in- chief and to the commissioner, in the manner provided in Rule 48. Notice to Parties of Interference. 56. When an interference is declared, notice will be given to both parties or to their attor- neys. When one of the parties has received a patent, duplicate notices will be sent to the patentee and to his attorney of record. Where one of the parties resides abroad and has no known agent in the United States, in addition to the notice sent by mail notice may be given by publication in a newspaper of general circu- lation in the city of Washington once in a week for three successive weeks. Order of Taking Testimony. 57. In cases of interference the party who first filed so much of his application for a pat- ent as is required by Rule 7, will be deemed the first inventor in the absence of all proof to the contrary. A time will be assigned in which the other party shall complete his direct testi- mony; and a further time in which the ad- verse party shall complete the testimony on his side; and a further time in which the party who first took testimony may take rebutting PATENTS. 589 testimony, but shall take no other. If there are more than two parties, the times for taking testimony will be so arranged that each shall have a like opportunity in his turn, each being held to go forward and prove his case against those who filed their application before him. Postponing Taking 1 Testimony. 58. If it becomes necessary for either party to have the time for taking his testimony, or for the hearing, postponed, he must make ap- plication for such postponement, and must show sufficient reason for it by affidavit as provided in Rule 113, filed before the time previously appointed has elapsed, if practicable, and must also furnish his opponent with copies of his affidavits and with reasonable notice of the time of hearing his motion. Prerequisite to, and Dissolving Interferences. 59. An interference will not be declared until the subject-matter involved is decided to be patentable. If after being declared it is found that no interference in fact exists, or that there has been such irregularity in declaring the same as will preclude the proper determi- nation of the question of right between the parties, it will be dissolved, and an appeal may be taken to the commissioner in person. Concessions of Priority. If, during the continuance of an interference, it shall appear that neither party is entitled to a patent by reason of abandonment, public use, or any other statutory bar, the examiner of in- terferences, or examiners-in-chief, as the case may be, will direct the attention of the com- missioner to the facts, either by a report, if before the hearing, or in the decision of the question of priority, if the interference comes to a regular hearing. The commissioner, if in his judgment it is necessary, will then suspend the interference and remand the cases to the principal examiner for the determination of any of these questions. If judgment be based upon a concession of priority by either of the parties, such conces- sion must be in writing, and under the signa- ture of the inventor himself; and if there has been an assignment, the assignee must join in the concession. Amendments Pending Interferences Rehearing and Second Interferences. 60. No amendments to the specifications will be received during the pendency of an inter- ference, except as provided in section 6l. A second interference will not be declared upon a new application on the same invention filed hy either party during the pendency of an in- terference, or after judgment, nor a rehearing be granted, unless it be shown to the satisfac- tion of the commissioner (in person) that the party desiring a new interference or rehearing has new and material testimony which he could not have procured in time for the hearing, or unless other sufficient reasons be shown, satis- factory to the commissioner. Part of Application only in Inter- ference. Oi. When an application is adjudged to interfere with a part only of another pending application, the interfering parties will be per- mitted to see or obtain copies of so much only of the specifications as refers to the inter- fering claims. And either party may, if he so elect, withdraw from his application the claims adjudged not to interfere, and file a new appli- cation therefor : Provided, That the claims so withdrawn cover inventions which do not in- volve the devices in interference : And pro- vided also, That the devices in interference are eliminated from the new application. In such case the latter will be examined without refer- ence to the interference from which it was withdrawn. REISSUES. Who May Apply for Reissne. 62. A reissue is granted to the original patentee, his legal representatives, or the as- signees of the entire interest, when, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his invention or discovery more than he had a right to claim as new, the original patent is inoperative or invalid, provided the error has arisen from inadvertence, accident, or mistake, and with- out any fraudulent or deceptive intention. In the cases of patents issued and assigned prior to July 8, 1870, the application for reissue may be made by the assignee ; but, in the case of patents issued or assigned since that date, the application must be made and the specification sworn to by the inventor, if he be living. What Must Accompany Petition. 63. The petition for a reissue must be ac- companied with a certified copy of the abstract of title, giving the names of all assignees own- ing any undivided interest in the patent ; and in case the application is made by the inventor, it must be accompanied with the written assent of such assignees. In applications for reissue, under several different divisions, a petition, oath, drawing, and specification must accom- pany each division. What Amendments Allowed. 64. The general rule is, that whatever is really embraced in the original invention, and so described or shown that it might have been embraced in the original patent, may be the subject of a reissue ; but no new matter shall be introduced into the specification, nor shall the model or drawing be amended except each by the other; but, when there is neither model nor drawing, amendments may be made upon proof satisfactory to the commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mis- take, as aforesaid. Take Precedence in Examination. 65. Reissued patents expire at the end of the term for which the original patents were granted. For this reason applications for reis- sue will take precedence, in examination, of original applications. Division of Patents. 66. A patentee in reissuing may, at his op- tion, hare a separate patent for each distinct 590 PATENTS. ind separate part of tha invention compre- hended in his original patent, by paying the required fee in each case, and complying with the other requirements of the law, as in origi- nal applications. Each division of a reissue constitutes the subject of a separate specifica- tion descriptive of the part or parts of the invention claimed in such division; and the drawing may represent only such part or parts. All the divisions of a reissue will issue simul- taneously. If there be controversy as to one, the others will be withheld from issue until the controversy is ended. Original Claim to be Examined Anew. 67. In all cases of applications lor reissues, the original claim, if reproduced in the amended specification, is subject to re-examination, and may be revised and restricted in the same manner as in original applications. The ap- plication for a reissue must be accompanied by a surrender of the original patent, or, if lost, then by an affidavit to that effect and a certified copy of the patent ; but if any reissue be re- fused, the original patent will, upon request, be returned to the applicant. DISCLAIMERS. 68. Whenever, by inadvertence, accident, or mistake, the claim of invention in any patent is too broad, embracing more than that of which the patentee was the original or first inventor, some material or substantial part of the thing patented being truly and justly his own, the patentee, his heirs or assigns, whether of a whole or of a sectional interest, may, upon payment of the duty required by law, make disclaimer of such parts of the thing patented as the disclaimant shall not choose to drum or to hold by virtue of the patent or assign- ment, stating therein the extent of his interest in such patent ; which disclaimer shall be in writing, attested by one or more witnesses, shall be recorded in the patent office, and shall thereafter be considered as part of the original specification, to the extent of the interest pos- sessed by the claimant and by those claiming under him after the record thereof. EXTENSIONS. What Patents May be Extended. 69. Power is vested in the commissioner to extend any patent granted prior to March 2, 1861, for seven years from the expiration of the original term ; but no patent granted since March 2, 1861, can be extended. When a patent has been reissued in two or more divi- sions, separate applications must be made for the extension of each division. When to File Petition and Pay Fee. 70. The applicant for an extension must file his petition and pay in the requisite fee not more than six months nor less than ninety days prior to the expiration of his patent. No certificate of extension will be signed after the expiration of the patent. Parties are cautioned to make their application for exten- sion in time to allow the testimony to be taken, Ae hearing to be had, and decision made, so that the final fee may be paid and the certifi- cate signed before the patent expires; other- wise, extension will be denied. Remonstrants, What is Required of Them. 71. Any person who intends to oppose an application for extension must give notice of such intention to the applicant or his attorney of record within the time hereafter named, and furnish him with a statement of his reasons of opposition. After this he will be regarded as a party in the case, and will be entitled to notice of the time and place of taking testi- mony, to a list of the names and residences of the witnesses whose testimony may have been taken previous to his service of notice of oppo- sition, and to a copy of the application and of any other papers on file, upon paying the cost of copying. He must also immediately file a copy of such notice and reasons of opposition, with proof of service of the same, in the patent office. (See sec. 75.) If the extension is opposed on the ground of lack of novelty in the invention, the reasons of opposition should contain a specific state- ment of any and all matter relied upon for this purpose. What is Required of Petitioner. 72. The applicant for an extension must fur- nish to the office a statement in writing, under oath, of the ascertained value of the invention, and of his receipts and expenditures on account thereof, both in this and foreign countries. This statement must be made particular and in detail, unless sufficient reason is set forth why such a statement cannot be furnished. It must in all cases be filed with the petition. No ex- ceptions will be made to this rule. Such statement must also be accompanied with a certified abstract of title and a declara- tion, under oath, setting forth the extent of ap- plicant's interest in the extension sought. Points to be Considered Proofs Required. 73. The questions which arise on each ap- plication for an extension are : 1 . Was the invention new and useful when patented ? 2. Is it -valuable and importanl to the public, and to what extent ? 3. Has the inventor been reasonably remu- nerated for the time, ingenuity, and expense bestowed upon it, and the introduction of it into use? If not, has his failure to be so re- munerated arisen from neglect or fault on his part? 4. What will be the effect of the proposed extension upon the public interests? No proof will be required from the appli- cant upon the first question unless the invention is assailed upon those points by opponents. To enable the commissioner to come to a correct conclusion in regard to the second point of inquiry, the applicant must, if possible, pro- cure the testimony of persons disinterested in the invention, which testimony should be taken under oath. ' This testimony must distinguish carefully bet-ween the specific devices covered by PATENTS. 59 ,he claims of the patent and the general ma- chine in which those devices may be incorpo- rated. In regard to the third point of inquiry, in addition to his own oath, showing his receipts and expenditures on account of the invention, the applicant must show, by testimony under oath, that he has taken all reasonable measures to introduce his invention into general use; and that, without neglect or fault on his part, he has failed to obtain from the use and sale of the invention a reasonable remuneration for the time, ingenuity, and expense bestowed on the same, and the introduction of it into use. Taking Testimony and Giving: Notice. 74. In case of opposition to the extension of a patent by any person, both parties may take testimony, each giving reasonable notice to the other of the time and place of taking said testimony, which shall be taken according to the rules hereinafter prescribed. Remonstrant*, Their Duties and Privileges. 75. Any person desiring to oppose an exten- sion must serve his notice of opposition, and file his reasons therefor, at least ten days before the day fixed for the closing of testimony; but parties who have not entered formal opposition in time to put in testimony may, at the discre- tion of the commissioner, be permitted to ap- pear on the day of hearing, and make argu- ment upon the record in opposition to the grant of the extension. But in such case good cause for the neglect to make formal opposition must be shown. Time of Taking Testimony. 76. In contested cases no testimony will be received, unless by consent, which has been taken within thirty days next after the filing of the petition for the extension. Service of Notice to Take Testimony. 77. Service of notice to take testimony may be made upon applicant, upon the opponent, upon the attorney of record of either, or, if there be no attorney of record, upon any at- torney or agent who takes part in the service of notice, or in the examination of the wit- nesses of either party. Where notice to take testimony has already been given to an op- ponent, and a new opponent subsequently gives notice of his intention to oppose, the examina- tion need not be postponed, but notice thereof may be given to such subsequent opponent by mail or by telegraph. This rule, however, does not apply to ex-parte examinations, or those of which no notice has been given when notice of opposition is served. Taking: Testimony and Hearing. Ref- erence to Examiner. 78. In the notice of the application for an extension a day will be fixed for the closing of testimony, and the day of hearing will also be named. Application for a postponement of the day of hearing, or for further time for taking testimony, must be made and supported accord- ing to the same rules as are to be observed in other contested cases; but they will not be granted in such a manner as to cause a risk of preventing a decision prior to the expiration of the patent. Immediately upon the closing of the testimony the application will be referred to the examiner in charge of the class to which the invention belongs for the report required by law ; and said report shall be made not less than five days before the day of hearing. As this report is intended for the information of the commissioner, neither the parties nor their attorneys will be permitted to make oral argu- ments before the examiner. In contested cases briefs are deemed desirable, and these should always be filed at least five days before the day of hearing. DESIGNS. Designs, What are Patentable. 79. A patent for a design may be granted to any person, whether citizen or alien, who, by his own industry, genius, efforts, and expense, has invented or produced any new and original design for a manufacture, bust, statue, alto-re- lievo, or bas-relief; any new and original de- sign for the printing of woollen, silk, cottqn, or other fabrics ; any new and original impres- sion, ornament, pattern, print, or picture, to be printed, painted, cast, or otherwise placed on or worked into any articles of manufacture ; or any new, useful, and original shape or configu- ration of any article of manufacture, the same not having been known or used by others be- fore his invention or production thereof, or patented or described in any printed publica- tion, upon payment of the duty required by law, and other due proceedings had the same as in cases of inventions or discoveries. How Long the Patents Inure. 80. Patents for designs are granted for the term of three and one-half years, or for seven years, or for fourteen years, as the applicant may, in his application, elect. Proceedings in Applications. 81. The proceedings in applications for pat- ents for designs are substantially the same as for other patents. The specification must dis- tinc'.ly point out the characteristic features of the design, and carefully distinguish between what is old and what is held to be new. The claims also should be as distinct and specific as in the case of patents for inventions or discov- eries. Models, When not Required. 82. When the design can be sufficiently rep- resented by drawings or photographs a model will not be required. Illustrations, How Prepared. 83. Whenever a photograph or an engraving is employed to illustrate the design, it must be mounted upon a thick Bristol-board or draw- ing-paper, ten by fifteen inches in size; and* the applicant will be required to furnish ten extra copies of such photograph or engraving (not mounted), of a size not exceeding seven and a half inches by eleven. Negatives will no longer be required. Whenever the design is represented by a drawing, each of the ten copies must be made to conform as nearly as possible to the rules laid down for drawings of mechanical inventions. 59* PATENTS TRADEMARKS. Roles Act of March 3, 1881. Who may obtain Registration. X. (a.) Any person, firm, or corporation domiciled in the United States or located in any foreign country which, by treaty, convention, or law, affords similar privileges to citizens of the United States,* and who is entitled to the exclusive use of any trade-mark and uses the same in commerce with foreign nations or with Indian tribes. (6.) Any citizen or resident of this country wishing the protection of his trade-mark in any foreign country the laws of which require registration in the United States as a condition precedent. Statutory Requirements. a. Every applicant for registration of a trade-mark must cause to be recorded in the Patent Office (a.) The name, domicile, and place of business or location of the firm or corporation desiring the protec- tion of the trade-mark, and the residence and citizen- ship of individual applicants. (6.) The class of merchandise and the particular description of goods comprised in such class to which the trade-mark has been appropriated (c '.) A description of the trade-mark itself, with fac- similes thereof, and the mode in which it has been ap- plied and used (d ) The length of time during which the trade-mark has been used by the applicant on the class of goods described. 3. A fee of twenty-five dollars is required on filing each application, except in the cases hereinafter named. (See pars. 16 and 17.) The Application. 4. An application for the registration of a trade-mark will consist of a statement and specification, a declara- tion or oath, and the fac-simile, with duplicates thereof. The statement and declaration should be written on one side of the paper only 5. These should be preceded by a letter of advice requesting registration and signed by the applicant. 6. The statement should announce the full name, citizenship, domicile, residence, and place of business of the applicant (or if the applicant be a corporation, under the laws of what State or nation incorporated), with a full and clear specification of the trade-mark, particu- larly discriminating between its essential and non-essen- tial features. It should also state from what time the trade-mark has been used by the applicant, the class of merchandise, and the particulai goods comprised in such class to which the trade-mark is appropriated, and the manner in which it has been applied to the goods 7. The declaration should be in the form of an oath by the person, or by a member of the firm, or by an officer of the corporation making the application, to the effect that the party has at the time of filing his appli- cation a right to the use of the trade-mark described in the statement; that no other person, firm, or corpora- tion has a right to such use, either in the identical form or in such near resemblance thereto as might be calcu- lated to deceive ; that such trade-mark is used in law- ful commerce with foreign nations or Indian tribes, one or more of which should be particularly named ; and that it is truly represented in the fac-simile for registry. 8. This oath may be taken within the United States, before a notary public, justice of the peace, or the judge or clerk of any court of record. In any foreign country it may be taken before the secretary of a legation or consular officer of the United States, or before any per- son duly qualified by the laws of the country to admin- ister oaths, whose official character shall be certified by a representative of the U. S. having an official seal. Fac-similes to be Filed. 9. Where the trade-mark can be represented by a fac-simile which conforms to the rules for drawings of mechanical patents,f such a drawing may be furnished by applicant, and the additional copies will be produced by the photolithographic process at the expense of the office. Or the applicant may furnish one fac-simile of the trade-mark, mounted on a card ten by fifteen inches in size, and ten additional copies upon flexible paper, not mounted ; but in all cases the sheet containing the mounted fac-simile or the drawing must be signed by The following countries have treaties with the United States at this time, viz.: Russia. Belgium, France, Austria, the Ger- man Empire, and Great Britain. t These rules are furnished oo application by letter to the the applicant or his authorized attorney, *nd Butfcaau Cited by two witnesses. Proceedings in the Office. 10. All applications for registration are considered ic the first instance by the trade-mark examiner An ad- verse decision by such examiner upon the applicant's right to registration will be reviewed by the Commis- sioner in person upon petition without fee. 11. No trade-mark will be registered unless it shall be made to appear that the same is used as such by the applicant in commerce with foreign nations or with Indian tribes, or is within the provisions of a treaty, convention, or declaration with a foreign power, nor which is merely the name of the applicant, nor which is identical with a known or registered trade-mark owned by another and appropriated to the same class of merchandise, or which so nearly resembles some other person's lawful trade-mark as to be likely to cause confusion in the public mind or deceive purchasers. 12. In case of conflicting applications for registration, or in any dispute as to the right to use which may arise between an applicant and a prior registrant, the office will declare an interference, in order that the parties may have opportunity to prove priority of adoption or right ; and the proceedings on such interference will follow, as nearly as practicable, the practice in inter- ferences upon applications for patents . but each appli- cant and registrant will be held to the date of adoption alleged in the statement filed with his application On the petition of any party dissatisfied with the decision of the examiner of interferences the case wil 1 be reviewed by the Commissioner without fee. 13. When these requirements have been complied with, and the office has adjudged the trade -mark law- fully registrable, a certificate will be issued by the Com- missioner, under seal of the Interior Departmen', to the effect that applicant has complied with the law, and that he is entitled to the protection of his trade-mark in such case made and provided Attached to the certificate will be a fac-simile of the trade mark and a printed copy of the statement and declaration. 14. The protection for such trade-mark will remain in force for thirty years, and may, upon the payment of a second fee, be renewed for thirty years longer, except in cases where such trade-mark is claimed for and ap- plied to articles not manufactured in this country, and in which it receives protection under the laws of any foreign country for a shorter period, in which case it will cease to has'e force in this country, by virtue of the registration, at the same time that the trade-mark ceases to be exclusive property elsewhere. 15. The right to the use of any trade-mark is assign- able by an instrument in writing, and such assignment of a registered trade-mark must be recorded in the Patent Office within sixty days after its execution, in default of which it may be void as against any subse- quent purchaser or mortgagee for a valuable considera- tion, without notice. No particular form of assignment or conveyance is prescribed, but the trade-mark must be identified by the certificate number. 16. Owners of trade-marks for which protection has been sought by registering them in the Patent Office under the Act of July 8, 1870 (declared unconstitutional by the Supreme Court of the United States), may regis- ter the same for the same goods, without fee, on com- pliance with the foregoing requirements. With each application of this character a specific reference to the date and number of the former certificate is required. 17. Applicants whose cases were filed under the act of 1870, either prior to or since the decision of the Su- preme Court declaring it unconstitutional, which are now pending before the office, are advised to prepare applications in conformity with the law and foregoing rules. On the receipt of such an application, referring to the date of the one formerly filed, all fees paid there- on will be duly applied. Those who have paid only $10 as a first fee are advised that the law does not pro vide for a division of the legal fee of $25, and that the remainder of the entire fee is required before the appli- cation can be entertained. FOREIGN PATENTS. Foreign Patents, Their Effect on Home Patents. 89. The taking out of a patent in a foreign country does not prejudice a patent previously obtained here ; nor does it prevent obtaining a patent here subsequently, unless the inventioB PATENTS. 593 shall have been introduced into public use in the United States for more than two years prior to the application ; but when a patent is taken out in this country for an invention pre- viously patented abroad, the American patent will expire at the same time with the foreign patent, or if there be more than one, at the same time with the one having the shortest term ; but in no case shall it be in force more than seventeen years. Oath when Invention is Patented Abroad. go. When application is made for a patent for an invention which has been already patented abroad, the inventor will be required to make oath that, according to the best of his knowledge and belief, the same has not been in public use in the United States for more than two years prior to the application in this country. Statement Required of Applicant. gi. An applicant whose invention has been patented abroad should state the fact that a foreign patent has actually been obtained, giv- ing its date, and if there be more than one, the date of each. CAVEATS. Caveat, Filing and Proceedings Thereon. 92. Any citizen of the United States, or alien who has resided for one year last past in the United States, and has made oath of his intention to become a citizen thereof, can file a caveat in the secret archives of the patent office on the payment of a 1 fee of ten dollars therefor. And if, at any time within one year thereafter, another person applies for a patent with which such caveat would in any manner interfere, such application will be suspended, and notice thereof will be sent to the person filing the caveat, who, if he shall file a complete applica- tion within the prescribed time, will be entitled to an interference with the previous applica- tion, for the purpose of proving priority of in- vention, and obtaining the patent, if he be ad- judged the prior inventor. The caveator, if he would avail himself of his caveat, must file his application within three months from the day on which the notice to him is deposited in the post-office at Washington, adding the regu- lar time for the transmission of the same to him ; and the day when the time for filing expires will be mentioned in the notice or indorsed thereon. Notice of Conflicting Application Renewing Caveats. 93. The caveator will not be entitled to notice of any application pending at the time of filing his caveat, nor of any application filed after the expiration of one year from the date of filing the caveat ; but he may renew his caveat at the end of one year by paying a second caveat fee of ten dollars, which will continue it in force for one year longer, and to on from year to year as long as he may desire. If a caveat is not renewed at the end of the year for which it was filed, it will no Jonger be regarded as in the secret archives of fee office. Oath of Caveator. 94. No caveat can be filed in the secret archives of the office unless accompanied by an oath of the caveator that he is a citizen of the United States, or, if he is an alien, that he has resided for one year last past within the United States, and has made oath of his inten- tion to become a citizen thereof; nor unless the applicant also states, under oath, that he be- lieves himself the original and first inventor of the art, machine, or improvement set forth in his caveat. Description of Invention Required. 95. A caveat need not contain as particular a description of the invention as is requisite in a specification ; but still the description should be sufficiently precise to enable the office to judge whether there is a probable interference when a subsequent application is filed. A caveat, equally with an application, must be limited to a single invention or improvement. No Altering or TV! thd rawing Papers Allowed. 96. Caveat papers cannot be withdrawn from the office nor undergo alteration, after they have once been filed; nor will additional caveat papers relative to the same invention te received, except upon the payment of an addi- tional fee; but the caveator, or any person properly authorized by him, can at any time obtain copies of the papers at the usual rates. Drawings Required. 97. When practicable, the caveat must be accompanied by full and accurate drawings, separate from the specifications, well executed on tracing-muslin or paper that may be folded, and of the same size as demanded in drawings for patents. ASSIGNMENTS. Patents and Trade-Harks Assignable. 98. A patent or trade-mark may be assigned, either as to the whole interest or any undivided part thereof, by an instrument of writing. No particular form of words is necessary to consti- tute a valid assignment, nor need the instru- ment necessarily be sealed, witnessed, Dr acknowledged. Iietters, etc., Respecting Assignments not Recorded. 99. Letters, copies ' of assignments, or ex parte statements in relation to assignments are not proper subject-matters for record. Assignment to be Recorded before Patent Issues to Assignee. 100. In every case where it is desired that the patent shall issue to an assignee, the assign- ment must be recorded in the patent office at a date not later than the day on which the final fee is paid. Correspondence to be with Assignees. 101. When the patent is to issue in the name of the assignee, the entire correspond- ence will be with him or his authorized agent. Grants of Territorial Rights. 102. A patentee may not only assign the whole or an undivided interest in his patent, but he may grant and convey an exclusive right under his patent to the whole or an/ 594 PATENTS. specified portion of the United States by an instrument in writing. Assignments, etc., When to be Recorded. 103. Every assignment or grant of an exclu- sive territorial right, as well as of an interest in a patent or trade-mark, mu*t be recorded in the patent office if a patent, within three months, if a trade-mark, within sixty days, from the execution thereof; otherwise it will be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice; but, if recorded after that time, it will protect the assignee or grantee against any such subse- quent purchaser, whose assignment or grant is not then on record. Licenses, etc., Need not be Recorded. 104. The patentee may convey separate rights under his patent to make, or to use or to sell his invention, or he may convey territorial or shop rights which are not exclusive. Such conveyances are mere licenses, and need not be recorded. Receipt of Assignments, tc., not Ac- knowledged. 105. The receipt of assignments is not gen- erally acknowledged by the office; they will be recorded in their turn within a few days after their reception, and then transmitted to the person entitled to them. OFFICE FEES, AND HOW PAYABLE. Fees, etc., Payable in Advance. 106. Nearly all the fees payable to the patent office are positively required by law to be paid in advance ; that is, upon making application for any action by the office for which a fee is payable. For the sake of uni- formity and convenience, the remaining fees will be required to be paid in the same manner. Tar i ir of Fees. 107. The following is the tariff of fees estab- lished by law : On filing every application for a design patent for three years and six months . $10 oo On filing every application for a design patent for seven years . . . . 15 oo On filing every application for a design patent for fourteen years . . . . 30 oo On filing every caveat 10 oo On filing every application for a patent for an invention or discovery . . . . 15 oo On issuing each original patent for an in- vention or discovery so oo On filing a disclaimer 10 oo On filing every application for a reissue . 30 oo On filing every application for a division of a reissue 30 oo On filing every application for an extension 50 oo On the grant of every extension . . .5000 On filing the first appeal from a primary examiner to examiners-in-chief . . xo oo On filing an appeal to the Commissioner from examiners-in-chief .... 20 oo On depositing a trade-mark for registra- tion 25 oo On depositing a label for registration . 6 oo For every certified copy of a patent or other instrument, for every 100 words . 10 For certified copies of drawings, the reas- onable cost of making them. For recording every assignment of 300 words or under I oo For recording every assignment, if over 300 and not over 1,000 words . . a oo For recording every assignment, if over 1,000 wards 3 oo For uncertified copies of the specification! and accompanying drawings of patents issued since July I, 1871 : Single copies 25 Twenty copies or more, whether of one or several patents, per copy ... 10 For uncertified copies of the specifications and drawings of patents issued prior to July i, 1871, the reasonable cost of mak- ing the same. Orders for Copies mnst Specify Par- ticulars. In ordering copies of any drawing or speci- fication the name of the inventor and patentee, the title of the invention, and the date of the patent must be given ; and for any search re- quired in consequence of the omission of any of these data, a charge of one dollar may be made. So, in ordering a copy of an assign- ment, the liber and page of the record, as well as the name of the inventor, must be given, otherwise an extra charge will be made for the time consumed in making any search that may become necessary. Final Fee, Patent Forfeited if not Paid. 108. The final fee upon a patent must be paid within six months after the time at which the application was allowed and notice thereof mailed to the applicant, or his agent; and if the final fee for such patent, or a certificate of deposit for the amount, be not received at the office within that time, the patent will be forfeited, and the invention therein described will become public property, as against the ap- plicant therefor, unless he shall make a new application within two years from the date of notice of the original allowance. Money for Fees, How Paid. log. The money for the payment of fees may be paid to the commissioner, or to the treasurer or any of the assistant treasurers of the United States, or to any of the designated depositaries, national banks, or receivers of public money, designated by the secretary of the treasury for that purpose, who shall give the depositor a receipt or certificate of deposit therefor, which shall be transmitted to the pat- ent office. When this cannot be done without much inconvenience, the money may be re- mitted by mail, and in every such case the letter should state the exact amount enclosed. Letters containing money may be registered. Post-office money-orders now afford a safe and convenient mode of transmitting fees. All such orders should be made payable to the " commissioner of patents." The weekly issue will close on Saturday at 12 o'clock. When patents are to issue to assignees the assignment must be on record before the clos- ing of the issue, and the request to issue to an assignee must be made in writing at the time of paying the final fee. If Sent by Mail, is at Owner's Risk. no. All money sent by mail, either to or from the patent office, will be at the risk of the owner. In no case should money be sent en- closed with models. All payments to or by the office must be paid in specie, treasury notes, PATENTS. national-bank notes, certificates of deposit, or post-office money-orders. REPAYMENT OF MONEY. Refunding Money Paid by Mistake. in. Money paid by actual mistake will be refunded, but a mere change of purpose after the payment of money will not entitle a party to demand such return. POSTAGE. Postage, When to be Prepaid. 112. After the first day of July, 1873, tne postage on all matter sent to the patent office by mail must be prepaid in full, otherwise it will not be received. TAKING AND TRANSMITTING TES- TiMomr. Taking Testimony. 113. In extension, interference, and other contested cases, the following rules have been established for taking and transmitting evi- dence : Notice of, to be Given. 1. Before the deposition of a witness or wit- nesses is taken by either party, due notice shall be given to the opposite party, as hereinafter provided, of the time and place when and where such deposition or depositions will be taken, with the names and residences of the witness or witnesses then and there to be ex- amined, so that the opposite party, either in person or by attorney, shall have full opportu- nity to cross-examine the witness or witnesses : Provided, That if the opposite party, or his counsel, be actually present at the taking of testimony, witnesses not named in the notice may be examined, but not otherwise; and that neither party shall take testimony in more than one place at the same time, nor so nearly at the same time as not to allow reasonable time to travel from one place of examination to the other. How to be Served. 2. The notice for taking testimony must be served by delivering a copy to the adverse party, or his agent, or attorney of record or counsel, as provided in Rule 77, or by leaving a copy at the party's usual place of residence with some member of the family who has ar- rived at the years of discretion, or by leaving the same at the office of the attorney; and such notice shall, with proof of service of the fame, and a certificate, July sworn to, giving the manner and time of making the service, be attached to the deposition or depositions, whether the party cross-examine or not. How to Certify and forward Deposi- tion. 3. The magistrate before whom the deposi- tion is taken must append thereto his certificate, stating the time and place at which it was taken, the name of the witness, the administration of the oath, at whose request the testimony was taken, the occasion upon which it is intended to be used, the names of the adverse party (if any), and whether they were present; arid immediately upon the close of the examination he shall securely seal up all the evidence, etc., and forward the same forthwith to the com- missioner of patents, making upoa the enve- lope a certificate, giving the title of the case and the date of sealing and addressing the package. Ex-parte Testimony in Extensions. 4. In cases of extension wjiere no opposition is made, ex-parte testimony will be received from the applicant ; and such testimony as may have been taken by the applicant prior to notice of opposition will be received, unless taken within thirty days after filing the petition for the extension : Provided, That immediately upon receiving notice of opposition the appli- cant shall give notice to the opposing party or parties of the names and residences of the witnesses whose testimony has thus been taken. Proceedings if Testimony cannot be Obtained. 5. If either party shall be unable, for good and sufficient reasons, to procure the testimony of a witness or witnesses within the stipulated time, it shall be the duty of said party to give notice of the same to the commissioner of pat- ents, accompanied by statements, under oath, of the cause of such inability, and of the names of such -witnesses, and of the facts ex- pected to be proved by them, and of the steps which have been taken to procure said testi- mony, and of the time or times when efforts have been made to procure it ; which notice to the commissioner shall be received by him previous to the day of hearing aforesaid. Copies of the papers, and notice of any motion based upon them, must also be served upon the opposite party, as provided in Rule 50. Introducing Caveats, Records, and Books. 6. Whenever a party relies upon a caveat to establish the date of his invention, the caveat itself, or a certified copy thereof, must be filed in evidence, with due notice to the opposite party, as no notice can be taken by the office of a caveat filed in its secret archives. The official records of the office, and books and documents contained in the library, and other books in general circulation, may be used at the hearing; but notice of any special mat- ter contained therein, upon which a party relies, should be given to the opposite party previous to the day set for closing testimony. Depositions, How Drawn Up. 114. The folios of each deposition must be numbered consecutively, and the name of the witness be plainly and conspicuously written at the top of each folio. It is deemed desirable that the testimony be taken upon legal-cap paper, with a wide margin on the left-hand side of the page, and that only one side of the sheet be written upon. Form of Testimony. 115. The testimony may be taken in narra- tive form ; but, if either party desires it, k must be taken in answer to interrogatories, having the questions and answers committed to writing in their regular order by the magistrate, or, unless by consent, by some person not in- terested in the case, either as a party thereto or as attorney. The deposition, when complete, must be signed by the witness. 596 PATENTS. Excluding Repositions. 116. No evidence touching the matter at issue will be considered upon the day of hear- ing which shall not have been taken and filed in compliance with these rules ; but no notice will be taken of any merely formal or technical objection which shall not appear to have wrought a substantial injury to the party rais- ing it; and in such case it should be made to appear that, as soon as the party became aware f the objection, he immediately gave notice thereof to the office, and also to the opposite party, informing him at the same time that, un- less corrected, he shall urge his objection at the hearing; but this rule is not to be construed so as to modify well-established rules of evi- dence, which will be applied strictly in all practice before the office. Subpoenas for Witnesses. 117. The law requires the clerks of the various courts of the United States to issue subpoenas, to secure the attendance of wit- nesses whose depositions are desired to be read in evidence in any contested cases in the patent office. Testimony, When Open. 118. In contested cases, whether of inter-. Terence or of extension, parties may have ac- cess to the testimony on file prior to the hear- ing, in presence of the officer in charge; and copies may be obtained by them at the usual rates. Printing? of it Required. As a general rule printed copies of the testi- mony will be required, but this requirement may be dispensed with on special application to the commissioner, and showing satisfactory reasons therefor. Three printed copies should be furnished, two for the use of the office and one for the use of the opposing party. These copies must be filed not less than one week previous to the day of hearing. It is also desirable that all arguments should be submitted in printed form, and all argu- ments filed at least two days previous to the day of hearing. RUIZES OF CORRESPONDENCE. Correspondence with Office, How Con- ducted. 119. All correspondence must be in the name of the " commissioner of patents," and all letters and other communications intended for the office must be addressed to him ; and after July I, 1873, postage must be prepaid in full. If addressed to any of the other officers of the bureau they will not be noticed, unless it be seen that the mistake was owing to in- advertence. A separate letter should in every case be written in relation to each distinct subject of inquiry or application, the subject of the invention and the date of filing being al- ways carefully noted. Correspondence to be With Party, or Attorney or Assignee, Only. Z2O. When an agent has filed his power of attorney, duly executed, the correspondence will, in ordinary cases, be held with him only ; and a double correspondence with an assignee and the inventor, or with an attorney and his principal, if generally allowed, would largely increase the labor of the office. The assignee of an entire interest in an invention is entitled to hold correspondence with the office to the exclusion of the inventor. If Principal Dissatisfied, Must Revoke Power. 121. If the principal becomes dissatisfied he must revoke his power of attorney and notify the office, which will then communicate with him. Inspection of Papers After Second Rejection. 122. After a second rejection none of the papers can be inspected, save in the presence of a sworn officer ; nor will any of the papers be returned to the applicant or agent. Conflicting Parties Having the Same Counsel Notified. 123. Whenever it shall be found that two or more parties whose interests are in conflict are represented by the same attorney, the examiner in charge will notify each of said principal parties, and also the attorney, of this fact. Applications Kept Secret. 124. Aside from the caveats, which are re- quired by law to be kept secret, all pending ap- plications are, as far as practicable, preserved in like secrecy. No information will therefore be given those inquiring whether any particular case is before the office, or whether any par- ticular person has applied for a patent. Not After They Are Determined. 125. But information is given in relation to any case after a patent has issued, or after a patent has been refused, and the further prose- cution of the application is abandoned or barred l>y lapse of time. Are Then Open to Inspection. 126. The models, in such cases, are so placed as to be subject to general inspection. The specifications and drawings in any particular case can be seen by any one having particular occasion to examine them, and copies thereof, as well as of patents granted, will be furnished at the cost of making them. Copies will be made on parchment, at the request of the ap- plicant, on his paying the additional cost. Cases Neglected for Two Years Treated as Abandoned. 127. Even after a case is rejected, the appli- cation is regarded as pending, unless the appli- cant allows the matter to rest for two years without taking any further steps therein, in which case it will be regarded as abandoned, and will no longer be protected by any rule of secrecy. The specifications, drawings, and model will then be subject to inspection in the same manner as those of patented or withdrawn applications. Information as to Pending 1 Cases, When Given. 128. Information in relation to pending cases is given so far as it becomes necessary in con- ducting the business of the office, but no further. Thus, when an interference is declared between two pending applications, each of the contest- PATENTS. 597 ants is entitled to a knowledge of so much of his opponent's case as to enable him to conduct his own understandingly. No Information Furnished as to In- ventions or the I. aw of Patents in General. 129. The office cannot respond to inquiries as to the novelty of an alleged invention in ad- vance of an application for a patent, nor to inquiries founded upon brief and imperfect de- scriptions, propounded with a view of ascertain- ing whether such alleged improvements have been patented, and if so, to whom ; nor can it act as an expounder of the patent law, nor as counselor for individuals, except as to questions arising within the office. A copy of the rules, with this section marked, sent to the individual making an inquiry of the character referred to, is intended as a respectful answer by the office. Intercourse With the Office to be in Writing. 130. All business with the office should be transacted in writing. Unless by the consent of all parties, the action of the office will be based exclusively on the written record. No attention will be paid to any alleged verbal promise or understanding, in relation to which there is any disagreement or doubt. ATTORNEYS. 131. Any person of intelligence and good moral character may appear as the agent or the attorney in fact of an applicant, upon filing a proper power of attorney. As the value of patents depends largely upon the careful prep- aration of the specification and claims, the as. c ;istance of competent counsel will, in most cases, be of advantage to the applicant, but the value of their services will be proportioned to their skill and honesty. So many persons have entered this profession of late years without experience that too much care cannot be exer- cised in the selection of a competent man. The office cannot assume responsibility for the acts of attorneys, nor can it assist applicants in making a selection. It will, however, be a safe rule to distrust those who boast of the posses- sion of special and peculiar facilities in the office for procuring patents in a shorter time or tvith more extended claims than others. Powers of Attorney, Their Effect. 132. Powers of attorney to authorize the attorney to substitute for, or associate with, him- self a second agent, must contain a clause of substitution ; but such powers will not au- thorize .he second agent to appoint a third. Regulations for Practice of Attorneys. 133. A power of attorney must be filed in every case, both by original and associate attor- neys, before such attorney will be allowed to inspect papers or take action of any kind. Par- ties or their attorneys will be permitted to ex- amine their cases in the attorney's room, but not in the rooms of the examiners. Personal interviews with examiners will be discouraged. All intercourse in relation to pending cases ought to be in writing. Restricting Attorneys for Misconduct. 134. Attorneys will be expected to conduct their business with the office with decorum and courtesy. For gross misconduct the commis- sioner may refuse to recognize any person as a patent agent, either generally or in any particu- lar case ; and for lesser offences attorneys may be refused the privilege of oral interviews, and be required to transact all business with the office in writing. Transacting Business Through Dele- gates in Cwngress Discouraged. 135. As members of Congress cannot ex- amine cases, or act in them without regular powers of attorney, and .is cases cannot be taken up out of their regular order upon their request, and as the delay in transmitting papers to and from the capitol involves a loss of time which would be avoided by communicating directly with the office, applicants are recom- mended not to add to the sufficiently arduous duties of their representatives by ordering copies or attempting to transact business with the office through them. LIBRARY. Library Regulations. 136. No persons are allowed to take books from the library except those employed in the office. All books taken from the library must be entered in a register kept for the especial pur- pose, and returned on the call of the librarian. Any book lost or defaced must be replaced by another. Patentees and others doing business with the office can examine the books only in the library-hall or the attorney's room in the office. All translations will be made at the usual rates by the office. No person will be allowed to make copies or tracings from works in the library. Such copies will be furnished at the usual rates. ELLIS SPEAR, Acting Commissioner, Approved. C. DELANO, Secretary of the Interior. PRACTICAL. FORMS. Form. Petition, by a sole inventor i by joint inventors 3 by an inventor for himself and an assignee 3 by an administrator 4 by an executor . . 5 for a reissue (by an inventor for himself or an assignee; 6 (by assignees) 7 for an extension (by a patentee) . . 8 (by an administrator) .... 9 for a patent for a design . . . .10 for registration of a trade-mark . . n for registration of a label . . Appendix, for the renewal of a rejected application 12 for the renewal of a forfeited application 13 with power of attorney . . . 13 Power of attorney ... . . 14 revocation of .... . . 15 Specification, for a machine (with drawing) . 16 for a process .... . . 17 for a composition of matter . . Xo for a design .... . . 19 for a trade-mark ... . . 20 amendment of ... . M Oath, by a sole inventor (citizen of the United States, or alien) *a by an applicant for reissue (inventor) . *f PATENTS. Form. Oath by an applicant for reissue (assignees; . 24 extension (patentee) 25 (executor) ao supplemental, to accompany a new or en- larged claim 37 to the loss of letters patent . . . .28 by an administrator as to loss of letters patent 39 by an applicant for the registration of a trade-mark 30 Appeals from an examiner to examiners-in- chief (ex parte cases) 31 examiner of trade-marks to commissioner y.a (interferences) 32 examiners-in-chief to commissioner . . 33 commissioner to Supreme Court of the District of Columbia 34 rules of the Supreme Court in . . .35 Disclaimer 36 Caveat 37 Assignments, entire interest (before issue of patent 38 (in patent) 39 undivided interest in patent, including extension 40 exclusive territorial grant . . . .41 License, shop-right 42 with royalty 43 Trade-mark, transfer of 44 Extensions, statement and account . . . 45 reasons of opposition (by individuals) . 46 Depositions, notice of taking testimony, and proof of service 47 form of 48 certificate of officer 49 Label Appendix. PETITION. 1. By a Sole Inventor. To the Commissioner of Patents : Your petitioner, a resident of , , prays that letters patent be granted to him for the in- vention set forth in the annexed specification. A. B. 2. By Joint Inventors. To the Commissioner of Patents: Your petitioners, residing respectively in , , and , , pray that letters patent may be granted to them, as joint inventors, for the in- vention set forth in the annexed specification. A. B. C. D. 3. By an Inventor for Himself and an Assignee. To the Commissioner of Patents : Your petitioner, a resident of , prays that letters patent may be granted to himself and C. D., of , as his assignee, for the invention set forth in the annexed specification, the assignment to the said C. D. having been duly recorded in the Patent Office, in liber , page . A. B. 4. By an Administrator. To the Commissioner of Patents : Your petitioner, A. B. , of , , administra- tor of the estate of C. D., deceased (as by reference to the duly-certified copy of letters of administration, hereto annexed, will more fully appear), prays that ~De granted to him for the in- vention of the said C. D.,set forth in the annexed letters patent may be ^granted to him vention of th< specification. A. B., Administrator, etc. 5. By an Executor. To the Commissioner of Patents : Your petitioner, A. B., of , , executor of the last will and testament of C. D., deceased (as by reference to the duly-certified copy of letters testa- mentary, hereto annexed, will more fully appear), prays that letters patent may be granted to him for the invention of the said C. D., set forth in the an- nexed specification. A. B., Executor, etc. 6. For a Reissue (By the Inventor). To the Commissioner of Patents : Your petitioner, of , , prays that he may be allowed to surrender the letters patent for an improvement in coal-scuttles, granted to him May 16, 1867, whereof he is now sole owner (of whereof C. 1)., on whose behalf and with whose as- sent this application is made, is now sole owner, by as- signment), and that letters patent may be reissued to him (or the said C. D.j, for the same invention, upon the annexed amended specification. Ac- companying this petition is an abstract of title, duly certified, as required in such cases. A. B. Assent of Assignee to Reissue. The undersigned, assignee of the entire (or an undivided) interest in the above-mentioned letters patent, hereby assents to the accompanying ap- plication. C. D. 7. For a Reissue (By Assignee). [ To be used only when the inventor is dead, or the original patent was issued and assigned prir t July 8, 1870.] To the Commissioner of Patents : Your petitioners, of the city of , State of , pray that they may be allowed to surrender the letters patent for an improvement in coal- scuttles, granted May 16, 1867, to E. F., now de- ceased, whereof they are now owners, by as- signment, of the entire interest, and the letters patent may be reissued to them for the same in- vention, upon the annexed amended specification. Accompanying this petition is an abstract of title, duly certified, as required in such cases. A. B. C. D. 8. For an Extension (By a Patentee. To the Commissioner of Patents : Your petitioner, now residing at , , prays that letters patent No. 12841, for an improvement in steam-engines, granted to him August 17, 1853, may be extended for seven years from and after the expiration of the original term. A. B. 9. For an Extension (By an Adminis- trator). To the Commissioner of Patents : Your petitioner, A. B., of , , administra- tor of the estate of C. D., deceased (as by reference to the duly certified copy of letters of administration, hereto annexed, will more fully appear), residing at , , prays that letters patent No. 12842, for an improvement in stoves, granted to said C. D., August 24, 1853, may be extended for seven years from and after the expiration of the original term. A. B. , Administrator. 10. For Letters Patent for a Design. To the Commissioner of Patents: Your petitioner, residing in , , prays that letters patent may be granted to him for the term of three and one-half years (or seven years, or four- teen years), for the new and original design set forth in the annexed specification. A. B. 11. For the Registration of a Trade- Mark. To the Commissioner of Patents: The undersigned presents herewith a fac-simile of his lawful trade-mark, and requests that the same, together with th< accompanying statement and declaration may be registered in the United Statei. Patent Office in accordance with the lav. in such cases made and provided. A. B. 12. For the Renewal of an Application. To the Commissioner of Patents: Your petitioner represents that on May 8, 1868, he filed an application for letters patent for an improvement in churns, which application was allowed July 7, 1868, but that he failed to make payment of the final fee within the time allowed by law. (Or, which application has been rejected, but has not been abandoned.) He now makes renewed application for letters patent -for said invention, and prays that the original specification, oath, drawings, and model may be used as a part of this application. A. B. PATENTS. 599 1$. Petition with Power of Attorney. To the Commissioner of Patents : Yor petitioner, a resident of the city of , State of , prays that letters patent may be granted to him for the invention set forth in the annexed specification; and he hereby appoints C. D., of the city of , State of , his attor- ney, with full power of substitution and revoca- tion, to prosecute this application, to make alter- ations and amendments therein, to receive the patent, and to transact all business in the Patent Office connected therewith. A. B. 14. Power of Attorney. If the power of attorney be given at any time other than that of making application for patent, it will be in substantially the following form : To the Commissioner of Patents : The undersigned having, on or about the aoth day of July, 1859, made application for letters patent for an improvement in a horse-power, hereby appoints C. D., of the city of , State of , his attorney, with full power of substitu- tion and revocation, to prosecute said application, to make alterations and amendments therein, to receive the patent, and to transact all business in the Patent Office connected therewith. A. B. Signed at , and State of , this day of , A. D. . 15. Revocation of Power of Attorney. The undersigned having, on or about the 26th day of December, 1867, appointed C. D., of the city of , State of , his attorney, to prose- cute an application for letters patent, made on or about the ist day of June, 1868, for an improve- ment in the running-gear of wagons, hereby re- vokes the power of attorney then given. Signed at , , this aist day of July, 1869. A. B. SPECIFICATION. 16. For a Machine. To all whom it may concern : Be it known that I (here insert the name of the inventor), of , in the county of , and State of , have invented a new and useful im- provement in saw-toothing machines, which im- provement is fully set forth in the following spe- cification, reference being had to the accom- panying drawings : The object of my invention is to rapidly form, on the blade of a handsaw, teeth gradually de- creasing in size from the broad to the narrow end of the blade, by the combination, in a saw-tooth- ing machine, of a tapering barrel, E, and a chain, or its equivalent, with rollers, aai, for feeding, or with a slide for carrying the blade A, as shown in the perspective view, Fig. i, of the accom- panying drawing. (Here follows the drawing.') The machine is illustrated more in detail in the plane view, Fig. 3, and in the vertical section, Fig. 2, in which it has not been deemed neces- sary to show the driving mechanism. The blade is held by and between the two upper rollers, a ai (the latter being a feed-roller), and two lower rollers, b b\, and is made to traverse in the direc- tion of the arrow, at a gradually decreasing speed, by causing a barrel, D, to unwind a chain or its equivalent from a tapering barrel, E, on the shaft, B. The several shafts have their bearings in a simple frame, H, the front portion h of the latter forming a table, which, in conjunction with the lower rollers, supports the blade, as the latter is caused to traverse with its edges in con- tact with the adjustable guides y y, on the frame. In this table is a fixed die or anvil, y, on which the blade bears, and in which is a triangular notch, corresponding in shape to a punch, e, on a rapidly revolving disk, G. As the blade moves at a gradually decreasing speod in the direction of the arrow, the punch will strike triangular pieces from its edge, and the result will be the formation of the desired graduated teeth. It will be evident that the driving-barrel, D, may be tapering, and the barrel, E, cylindrical, or that both barrels may be tapering, and ar- ranged to feed gradually raster instead of gradu- ally slower, with the same result, and that the blade may be clamped to a guided sliding bed, controlled by a tapering barrel and cord or chain. I claim as my invention: The combination in a saw-toothing machine substantially as described, of a tapering barre. and chain, with a roller for feeding the blade. Witnesses, C. D. A. B. E. F. 17. For a Process. To all whom it may concern : Be it known that I (here insert the nameoftht inventor), of , in the county of , and State of , have invented a new and useful process for separating smut and other impurities from wheat, which process is fully set forth in the fol- lowing specification: This invention relates to that class of processes employed for removing "smut " and other im- purities mixed with and adhering to grain ; and it consists in mixing " newly-slaked " lime, while yet warm, with the grain before it is passed through the smut-mill. In carrying out our invention, take of lime, newly slaked and while yet warm, one and a half pounds to each hundred pounds of wheat. Mix the lime well with the wheat, let it stand one hour, then pass it through a smut-mill in the usual way, and it will be found that all the lime, smut, dirt, and other impurities attached to the wheat, of every kind, and which no smut-mill, without my liming process, will fully separate, will be entirely removed, and the flour will be as white and as sweet as though made from the best of wheat. We are aware that lime has before been used for the purpose of cleaning wheat, being first mixed with the grain as above proposed, and the whole being then passed through a smut-mill; but in all previous processes, so far as we are aware, the lime has been used in a cold state, and for this reason they have proved ineffectual. We propose to take lime newly slaked and while yet warm. We claim as our invention : The process of cleaning wheat by mixing with it lime newly slaked and warm before passing it through a smut-mill, so as to cleanse the wheat from all impurities, substantially as described. A. B. Witnesses, E. F. C. D. G. H. 18. For a Composition of Matter. To all whom it may concern : Be it known that I (here insert the ttainf of the inventor), of , in the county of , and State- of , have invented a new and useful com- pound, called "wool-oil," which compound is fully described in the following specification: This invention relates to that class of com- pounds used to lubricate wool in the process of manufacture ; and it consists in a composition formed by mixing any one or more of the oils ordinarily used in manufacturing wool, such as olive, lard, or rape-seed oil, with a solution of an oil-soap. To prepare the wool-oil, take a quantity of oil- soap of any kind, provided the quality be good, and dissolve the same in hot water, say about thirty pounds of oil-soap to thirty gallons of water, or a sufficient quantity of soap to saturate the water. Then take equal parts, by measure of olive, lard, rape-seed, or any other kind of oil which can be used on wool in the process of its manufacture, and mix with it the preparation aforesaid, to wit, the soap solution, which, after such mixture, is ready to be used on the wool with as beneficial an effect as if pure oil only had been used. This wool-oil will not decompose by age, because the oil of soap neutralizes the stearine in the oil; hence there is nothing to de- compose. And for the same reason spontaneous combustion cannot be produced. I claim : A compound consisting of an oil or oils, ordi- narily.used in the lubrication of wool, in combina' 000 PATENTS. tion with a solution of an oil-soap, substantially as and for the purpose specified. C. D. Witnesses, t. F. G. H. 19. For a Design* To all whom it may concern: Be it known that I (here insert the namt of the originator of the design), of , in the county of , and State of , have originated and de- signed a pattern for carpets, or other fabrics, of which the following is a full, clear, and exact de- scription, reference being had to the accompany- ing photographic illustration or drawing, malting part of this specification: The nature of my design is fully represented in the accompanying photographic illustration, to which reference is made. A represents a portion of the body of the car- pet, and B a portion of the border. The body may be ornamented with any figures that maybe selected ; but the border consists of three parallel stripes, the middle one wide, and the other two narrow. Along the middle stripe of the border tun two angular bars, crossing each other and intertwining, as shown, while the narrow stripes are ornamented with rows of spots arranged in groups of three, so as to form triangles. I prefer to make the middle stripe white and the side stripes red, while the intertwining bars are of gold and green ; but I do not consider the colors selected to be an essential element in my design. I am aware that carpet-borders composed of a wide central stripe and two narrow side stripes ere not new, and I do not claim them. The dis- tinctive character of my design is found in the l gures, which are wrought into a border thus composed of stripes. Wnat I claim as my invention is : A design for a carpet in which the border is i om posed of stripes ornamented substantially in vne manner above described. 2O. For a Trade-Nark. To all whom it may concern : Be it known that I, A. B.,* a citizen of the United States residing at , in the county of , and State of , and doing business at , have adopted for my use a trade-mark for (as the case may be) of which the following is a full, clear, and exact specification : My trade-mark consists of the letters and words (or arbitrary symbols, as the case may be) . These have generally been arranged as shown in the accompanying fac-simile. {.tier* give a full description of the fat: -simile, including all its features.} But may be omitted and changed at pleasure without materially altering the charac- ter of my trade-mark, the essential features of which are This trade-mark I have used continuously in my business since , 18 . The class of merchandise to which this trade- mark is appropriated is , and the particular description oi goods comprised in such class on which I use the said trademark is f. It has been my practice to (fiere state fully the manner of applying it to the goods or t/ie packages Containing them) A B. Witnesses, C. D. E. F. 21. Amendment. Washington, D C .July ao, 1869. To the Commissioner of Patents : In the matter of my application for letters pat- ent for an improvement in wagon-brakes, I here- by amend my specification by striking out all be- tween the ninth and twentieth lines inclusive, on page 3 ; by inserting the words " connected with " The first paragraph of the statement should l>e modified to conform to tlie iircuinstain.es o( eai.li applicant. If a firm, the domicile and place of business are required : if a corporation, under what State or other laws incorporated, where located and I iai e of business ; if a person not an American t ilizen. ol what countvT he !. a citizen (ur subject, as the case may be), etc. Th description of the goods or which tlie trade mark is used should be in the same langiu^e in the finl and last par*- statement. after the word "and 'in the first line of the sec- ond claim ; and by striking out the third claim and substituting therefor the following : 3. The combination of the self-acting brake C, pin A, and slotted flanges D, substantially as de- scribed, and for the purposes set forth. A. B. By C. D., Ais Attorney in Fact. OATHS. 22. By a Hole Inventor. (To follow Specification.) State of , county of , ss. A. B. , the above-named petitioner, being duly sworn (or affirmed), deposes and says that he verily believes himself to be the original and first inventor of the improvement in seed-drills de- scribed and claimed in the foregoing specifica- tion; that he does not know and does not be- lieve that the same was ever before known or used ; and that he is a citizen of , and a resU dent of . A. B. Sworn to and subscribed before me, this I3th day of March, 1869. C. D. Justice of the Peace. [If the applicant be an alien, the sentence " and that he is a citizen of the United States" will be omitted, and in lieu thereof will be substituted, " and that he is a citizen of the republic of Mexico," or "and that he is a subject of the king of Italy," or "of the queen of Great Britain," or as the case may be. If the applicants claim to be joint inventors, the oath will read " that they verily believe themselves to be the original, first, and joint inventors," etc. If the inventor be dead, the oath will be taken by the administrator or executor, and will declare nis belief that the party named as inventor was the original and first inventor.] 23. By an Applicant for a Reissue (Inventor). State of , city and county of , ss. : A. B., the above-named petitioner, being duly sworn (or affirmed), deposes and says that he verily believes that, by reason of an insufficient or defective specification, his aforesaid letters patent are inoperative or invalid ; that the said error has arisen from inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, to the best of his knowledge and be- lief; that he is the sole owner of said letters pat- ent (or, that E. F. is the sole owner of said letters pat- ent, and that this application is made on the behalf, and with the consent of said E. F.) : and that he verily believes himself to be the first and original inven- tor of the improvement set forth and claimed in this amended specification. A. B. Sworn to and subscribed before me, this zfith day of July, 1869. C. D., [Notarial seal,] Notary Public. 24. By an Applicant for a Reissue (Assignee). [ To 6e used only when the inventor is dead, or when the patent was issued and assigned prior t July 8, 1870.] State of , county of , ss. : A. B. and C. D., the above-named petitioners, being duly sworn (or affirmed), depose and say that they verily believe that, by reason of an in- sufficient specification, the aforesaid letters pat- ent granted to E. F. are inoperative ; that the said error has arisen from inadvertence, accident, or mistake, and without any fraudulent or decep- tive intention, to the best of their knowledge and belief; that the entire title to said letters patent is vested in them ; and that they verily believe the said E. F. to be the first and original inventor of the invention set forth and claimed in the fore- going amended specification; and that the said E. F. is now deceased. A. B. C. D. Sworn to and subscribed before me, this 14111 day of November, 1869. A. B., Justice of the Peace. 25. By an Applicant for Extension (Patentee). State of -, county of , ss. : A. B., the above-named applicant, being duly PATENTS. 601 sworn (or affirmed), deposes and says that the foregoing statement and account by him signed are correct and true in all respects and particu- lars, to the best of his knowledge and belief. A. B. Sworn to and subscribed before me, this ist day of November, A. D. 1868. C. D., Justice of the Peace. 26. By an Applicant Tor an Extension (Executor). State of , county of , ss. : A. B., executor of the last will and testament ef Simon Newcome, deceased, being duly sworn (or affirmed), deposes and says that the foregoing statement and account by him subscribed are correct and true in all respects and particulars, to the best of his information, knowledge, and belief. A. B., Executor, etc. Sworn to and subscribed before me, this aoth day of May, 1869. C. D., Justice of the Peace. 27. Supplemental Oath to Accompany a New or an Enlarged Claim. State of , county of , ss. : A. B., whose application for letters patent for an improvement in seed-drills was filed in the United States Patent Office, on or about the isth day of March, 1869, being duly sworn (or affirmed), deposes and says that, in addition to the claims originally made, he verily believes himself to be the original and first inventor of the improve- ment as described and claimed in the foregoing amendment, and that he does not know, and does not believe, that the same was ever before known or used. A. B. Sworn to and subscribed before me, this nth day of July, 1870. C. D., Justice of the Peace. 28. Oatb as to the I-osx of Letters Patent. State of , county of , ss. : A. B., of said county, being duly sworn (or af- firmed), doth depose and say that the letters pat- ent No. 12213, granted to him, and bearing date on the gth day of January, A. D. 1855, have been either lost or destroyed ; that he has made dili- gent search for the said letters patent in all places where the same would probably be found, if ex- isting, and that he has not been able to find them. A. B. Subscribed and sworn to before me, this 5th day of October, 1868. C. D., Justice of the Peace. 29. Oath of Administrator as to the Loss of Letters Patent. state of , county of , ss. : A. B. , of said county, being duly sworn, doth depose and say that he is administrator of the es- tate of E. F., deceased, late of Boston, in said county; that the letters patent No. 12219, granted to said E. F., and bearing date on the gth day of January, A. D. 1855, have been lost or destroyed, as he verily believes; that he has made diligent search for the said letters patent in all places where the same would probably be found, if ex- isting, and especially among the papers of the decedent, and that he has not been able to find said letters patent. A. B., Administrator, etc. Subscribed and sworn to before me, this 5th day of October, 1868. C. D., Justice of the Peace. SO. Oath of Applicant for Registration of a Trade-Mark. State of , county of , ss. : A B., being duly sworn, deposes and says that he is the applicant named in the foregoing state- ment ; that he verily believes that the foregoing statement is true ; that he has at this time a right to the use of the trade-mark therein described ; that no other person, firm, or corporation has the right to such use, either in the identical form or in any such near re-semblance thereto as might oe calculated to deceive ; that it is used by him in commerce with foreign nations or Indian tribes, and particularly with - (here name one or more foreign nations or Indian tribes, or both, at the tase may be), and that the description and fac- similes presented for record truly represent the trade-mark sought to be registered. A B. Sworn and subscribed before me, a - , thii - day of - , 18 . Q. H., Justice of the Peact. APPEALS. 31. From the Examiner to the Exain- To the Commissioner of Patents: Sir: I hereby appeal to the examiners-in-chief from the decision of the principal examiner in the matter of my application for letters patent for an improvement in wagon-brakes, which, on the 2oth day of July, 1869, was rejected the second time. The following are assigned for reasons of appeal: (Here follow tke reasons.) A. B. Sla. From the Examiner of Trade- Marks to the Commissioner. To the Commissioner of Patents: Sir : I hereby appeal to you in person from the decision of the examiner of trade-marks, dated November 15, 1872, in the matter of my applica- tion for the registration of a trade-mark for cigars. The following are the reasons assigned : (Here follow the reasons.) 32. From the Examiner in Charge of Interferences to the Examiiiers-iii- Chief. To the Commissioner of Patents : Sir: I hereby appeal to the examiners-in-chief from the decision of the principal examiner in charge, in the matter of the interference between my application for letters patent for improve- ment in sewing-machines and the letters patent of A. B., in which priority of invention was awarded to said A. B. The following are as- signed for reasons of appeal : (Here follo'.v thz reasons.) C. D. 33. From the Examiners-in-Chief to the Commissioner. To the Commissioner of Patents: Sir : We hereby appeal to the commissioner in person from the decision of the examiners-in- chief, in the matter of our application for the re- issue of letters patent for an improvement in cotton-presses, granted to A. B. , May 18, 1865. The following are assigned for reasons of appeal : (Here follow the reasons.) C. D. E. F. 34. From the Commissioner to the Sn- preme Court of the District of Colum- bia. 'Washington, D. C., July 20, 1871. To the Supreme Court of the District of Colum- bia, in bane: The petition of A. B., of - , in the county of - , and -- , respectfully showeth : That he has heretofore invented a new and useful im- provement in velocipedes ; that on or about the ist day of May, 1870, he applied to the Patent Office of the United States for a patent for the same (or for the reissue of a patent granted therefor under date of June 10, 1862), and complied with the requirements of the several acts of Congress, and with the rules of the Patent Office prescribed in such cases; that his said application was rejected by the Commissioner of Patents on appeal to him on or about June 20, 1871 ; that he has filed in said office due notice to the Commissioner of Patents of this, his appeal, accompanied with the reasons of appeal; and that the commis- sioner has furnished him with complete copies of all the original papers and evidence in the case, all of which, together with a copy of the reasons of appeal, accompany this petition, and are to be taken as a part hereof. And the said A. B. prays that his said appeal may be heard and determined by your honorable court at such early time as may be appointed for that purpose ; and that the Commissioner of Patents may be duly notified of the same, and PATENTS. directed in wnat manner to give notice thereof to the parties interested. A. B. To the Commissioner of Patents : A. B., of , in the county of , and State of , hereby gives notice that he has appealed from your decision, rendered on or about the aoth day of June, 1871, rejecting his application for a yatent (or for a reissue of a patent granted to him une 10, 1862) for an improvement in velocipedes ; and of this you are respectfully requested to take notice. And the said A. B. assigns the following rea- sons for appealing from the said decision of the Commissioner of Patents, viz. : (Here follow reasons, which should Jie full and ex- plicit, and constitute a brief of the appellant 1 's argu- ment.) A. B. 35. Kiilos of the Supreme Court in Ap- peals from the Commissioner of Pat- ents, Adopted November so. 187O. i. The appellant's petition shall be addressed to the court, and shall be substantially a<; follows : To the Supreme Court of the District of Colum- bia, in bane, , 187-. The petition of , a citizen of , in the (State, Territory, District) of , respectfully shows as follows : a. About the day of , 18 , I invented (describe the subject of the desired patent in the identi- cal words of tlie application to the Patent Office). b. On the day of , 18 , in the manner prescribed by law, I presented my application to the Patent Office, praying that a patent be issued to me for said invention. c. Such proceedings were had in said office, upon said application, that on the day of , 18 , it was rejected by the Commissioner of Patents. d. I thereupon appealed to this court, and gave notice thereof to the Commissioner, and filed in his office the following reasons for said appeal : e. The Commissioner of Patents has furnished me a complete copy of all the proceedings in his office upon my said application, which copy has been filed herewith, and is to be taken as part hereof. f. And thereupon I pray that the court do revise and reverse said decision, to the end that justice may be done in the premises. . i. This petition shall be filed in the clerk's office of this court; and as soon as the petitioner has made the deposit required by law at the commencement of suits in this court, or said deposit has been dispensed with, the clerk shall enter the case in a docket to be provided by him for the purpose, and in which a brief of said fil- ing and of all subsequent proceedings in the case shall be entered as and when they successively occur, down to and including the final decision. 3. The clerk shall provide a minute-book of his office, in which he shall record every order, rule, judgment, or decree of the court in each case, in the order of time in which said proceedings occur : and of this book there shall be two alphabetical indexes, one showing the name of the party applying for the patent, and the other designating the invention by its subject-matter or name. 4. The cases in the docket of causes shall be succes- sively numbered from No. i onward, and each case shall also be designated by the number assigned to it on the records of the patent office. 5. This docket shall be called for the trial of the cases thereon on the first day of each session of this court in general term, provided the petition has been filed ten clays before the commencement of the term. 6. The opinions of the court, when written, shall be kept by the clerk in the order of their delivery and in a temporary book-file, indexed; and when so many have been delivered as will make a volume of convenient size he shall cause them to be bound. 7. The clerk shall furnish to any applicant a copy ?f any paper in any of said appeals on payment of the lawful fees. 8. Hearings of said appeals shall be subject to the rules of the court provided for other causes therein. 9. When the testimony of the commissioner, or of any examiner, touching the principles of invention in ques- tion shall be deemed necessary, it shall be taken orally in open court, unless otherwise ordered by the court. And, in such case, the coure may order it to be reduced to writing, and filed or entered on its minutes, if it think proper. 10. The final judgment or order of the court shall not recite any of the facts made to appear in the case, but shall be to the following effect : This appeal having been heard upon the record from the Patent Office (and upon the testimony of the Comr/.issioner of Patents), (of one of the exam- iners), (touching the principles of the invention), and having been argued by (counsel for) the petitioner and (for) the Commissioner: It is thereupon ordered and adjudged that the (petition be dismissed) (Commissioner do issue to the petitioner a patent), (as prayed), (granting the petitioner [so and so]). And that the clerk of this court transmit to the Commissioner of Patents a copy of this decree duly authenticated. 36. Disclaimer. To the Commissioner of Patents : Your petitioner, A. B., of , county of and State of , represents that he has, by grants duly recorded in the United States Patent Office (liber , p. ), become the owner of an ex elusive right within and for the several States of (Maine, New Hampshire, and Vermont), to make, use, and vend to others to be used, a certain im- proved mechanical movement, for which letters patent of the United States were granted to C. D., of , in the county of , and State of , April i, 1869; that he has reason to believe that, through inadvertence, accident, or mistake, the specification and claim of said letters patent are too broad, including that of which said pat- entee was not the first inventor. Your petitioner, therefore, hereby enters his disclaimer to that part of the claim in said specification which is in the following words, to wit: I also claim the sleeves A B, having each a friction cam, C, and connected, respectively, by means of chains or cords K L and M N, with an oscillatory lever, to operate substantially as herein shown and described. A. B. Witness, C. D. 37. Caveat. The petition of A. B., of , in the county of , and State of , respectfully represents : That he has made certain improvements in velocipedes, and that he is now engaged in mak- ing experiments for the purpose of perfecting the same, preparatory to applying for letters patent therefor. He therefore prays that the subjoined description of his invention may be filed as a caveat in the confidential archives of the Patent Office. A. B. SPECIFICATION. The following is a description of my newly-in- vented velocipede, which is as full, clear, and exact as I am able at this time to give, reference being had to the drawing hereto annexed. This invention relates to that class of veloci- pedes in which there are two wheels connected by a beam forming a saddle for the rider, the feet being applied to cranks that revolve the front wheel. The object of my invention is to render it un- necessary to turn the front wheel so much as heretofore, and at the same time to facilitate the turning of sharp curves. This I accom plish by fitting the front and the hind wheels on vertical pivots, and connecting them by means of a diagonal bar, as shown in the drawing, so that the turning of the front wheel also turns the back wheel with a position at an angle with the beams, thereby enabling it easily to turn a curve. In the drawing, A is the front wheel, B the hind wheel, and C the standards extending from the axle of the front wheel to the vertical pivot a in the beam />, and D is the cross-bar upon the end of a, by which the steering is done. The hind wheel, B, is also fitted with jaws, c, and a vertical pivot, d. A. B. 'Witnesses, C. D. E. F. [The form of oath will be substantially that provided for original applications, except that, .-is a caveat c*u only be filed by a citizen, or an alieu who has resided PATENTS. 603 for one year last past In the United States, and made oath of his intention to become a citizen, the oath should be modified accordingly.] ASSIGNMENTS. SS. Of an Undivided Fractional Inter- est in an Invention before tiie Issue of Letters Patent. In consideration of one dollar, to me paid by C. D., of , I do hereby sell and assign to said C. D. an undivided half of all my right, title, and interest in and to a certain invention in plows, as fully set forth and described in the specification which I have prepared (if the application has been ^already made, say " and filed " ) preparatory to ob- taining letters patent of the United States there- fcr. And I do hereby authorize and request the Commissioner of Patents to issue the said letters patent jointly to myself and the said C. D., our heirs and assigns. Witness my hand, this i6th day of February, 1868. A. B. 39. Of the Kill ;;> Interest in Letters Patent. In consideration of five hundred dollars, to me in hand paid by C. D., of , I do hereby sell and assign to the said C. D. all my right, title, and interest in and to the letters patent of the United States, No. 41806, for an improvement in locomotive head-lights, granted to me, July 30, 1864, the same to be held and enjoyed by the said C. D. to the full end of the term for which said letters patent are granted, as fully and entirely as the same would have been held and enjoyed by me if this assignment and sale had not been made. Witness my hand, this loth day of June, 1869. A. B. 40. Of an Undivided Interest in the Letters Patent and Extension thereof. In consideration of one thousand dollars, to me paid by C. D., of , I do hereby sell and assign to the said C. D. one undivided fourth part of all my right, title, and interest in and to the letters patent of the United States, No. 10485, for an improvement in cooking-stoves, granted to me, May 16,1856; the same to be held and enjoyed by the said C. D. to the full end of the term for which said letters patent are granted, and for the term of any extension thereof, as fully and entirely as the same would have been held and enjoyed by me if this assignment and sale had not been made. Witness my hand, this 7th day of January, 1869. A. B. 41. Exclusive Territorial Grant by an Assignee. In consideration of one thousand dollars, to me paid by C. D., of , I do hereby grant and con- vey to the said C. D. the exclusive right to make, use, and vend within the State of , and in no other place or places, the improvement in corn- planters for which letters patent of the United States, dated August 15, 1867, were granted to E. F., and by said E. F. assigned to me, Decem- ber 3, 1867, by an assignment duly recorded in liber X8, p. 416, of the records of the Patent Office, the same to be held and enjoyed by the said C. D. as fully and entirely as the same would have been held and enjoyed by me if this grant had not been made. Witness my hand, this igth day of March, 1868. A. B. 42. License Shop-Right. In consideration of fifty dollars, to be paid by the firm of S. J. & Co. , of , I do hereby license and empower the said S. J. & Co. to manufac- ture, at a single foundry and machine shop in said , and in no other place or places, the im- provement in cotton-seed planters for which let- ters patent of the United States, No. 71846, were granted to me, November 13, 1868, and to sell the machines so manufactured throughout the Uni- ted States, to the full end of the term for which said letters patent are granted. Witness my hand, this aad day of April, 1869. A. B. 43. License Nt Exclusive With Royalty. This agreement, made this I2th day of Septem- ber, 1868, between A. B., party of the first part, and C. D. & Co., party of the second part, wit- nesseth, that, whereas letters patent of the Uni- ted States for an improvement in horse-rakes were granted to the party of the first part, dated October 4, 1867; and whereas the party of the second part is desirous of manufacturing horse- rakes containing said patented improvement : now, therefore the parties have agreed as fol- lows: 1. The party of the first part hereby licenses and empowere the party of the second part to manufacture, subject to the conditions herein- after named, at their factory in , and in no other place or places, to the end of the term for which said letters patent were granted, horse- rakes containing the patented improvements, and to sell the same within the United States. 2. The party of the second part agrees to make full and true returns to the party of the first part, under oath, upon the first days of July and Janu- ary in each year, of all horse-rakes containing the patented improvements manufactured by them. 3. The party ol the second part agrees to pay to the party of the first part five dollars, as a license-fee upon every horse-rake manufactured by said party of the second part containing the patented improvements ; provided, that if the said fee be paid upon the days provided herein for semi-annual returns, or within ten days thereafter, a discount of fifty per cent, shall be made from said fee for prompt payment. 4. Upon a failure of the party of the second part to make returns, or to make payment of license-fees, as herein provided, for thirty days after the days herein named, the party of the first part may terminate this license by serving a written notice upon the party of the second part ; but the party of the second part shall not thereby be discharged from any liability to the party of the first part for any license-fees due at the time of the service of said notice. In witness whereof, the parties above named (the said Uniontown Agricultural Works, by its presi- dent) have hereunto set their hands the day and year first above written. A. B. C. D. & Co. 44. Transfer of a Trade-mark. We, A. B. and C. D.,of , partners under the firm-name of B. & D., in consideration of five hundred dollars, to us paid by E. F., of the sam place, do hereby sell, assign, and transfer to the said E. F., and his assigns, the exclusive right to use in the manufacture and sale of stoves a cer- tain trade-mark for stoves deposited by us in the United States Patent Office, and recorded there- in July 15, 1870 ; the same to be held, enjoyed, and used by the said E. F., as fully and entirely as the same would have been held and enjoyed by us if this grant had not been made. Witness our hands, this aoth day of July, 1870. A. B. C. D. EXTENSIONS. 45. Statement and Account. In the matter of the application of A. B.,of the city, county, and State of New York, executrix of the last will and testament of C. D., de- ceased, for extension of letters patent No. 10817, granted to him January 9, 1855, for improve- ments in mowing-machines. To the Commissioner of Patents: The applicant respectfully represents that, prior to obtaining the letters patent now sought to be extended, the said C. D. was a farmer ; that his attention was called to the subject of mowing, machines, by the difficulty of cutting grass by the machines then in use; that, after numerous pa- tient and costly experiments, he succeeded in perfecting his invention and in obtaining his pat- ent. He immediately made arrangements to manufacture the improvement, and for this pur- pose sold three-fourths of his farm. He then, with others, built a factory and commenced oper. ations ; but, two years afterward, the establish- PATENTS. meflt was destroyed by fire, without insurance. In the exposure at the fire C. D. contracted a dis- ease which confined him to the house for three years, when he died, leaving applicant, his exec- utrix and widow, with a large family and small means. Nevertheless, applicant made every ef- fort to induce manufacturers to use the improve- ment, and at last succeeded in inducing the firm of E. T. & Co., of , to recommence the man- ufacture of the machines. But after four years the firm failed, being largely in debt to applicant for royalties. After this it became impossible for applicant to do anything with the invention. She wrote to various manufacturers, and made personal application to others, but found them unwilling to make arrangements to pay royalties, cr to use :he invention in any way, unless she would sell the patent, including the extension, for a nominal sum. She states, however, that she has at length succeeded in perfecting an agree- ment with G. H. & Co., of , conditioned upon the extension, whereby the said firm agreed to manufacture the patented machines, and to pay her a royalty of three dollars upon each one made. Aside from the interest so vested in G. H. & Co. the entire interest in the extension remains vested in her, and she has made no assignment, con- tract, or agreement of any kind for the sale or assignment of the extended term to any person whatsoever. The following is believed to be a correct state- ment of receipts and expenditures, and is as full as it is possible to make it : Receipts. From profits from business (for partic- ulars of which see schedule A) . . $1,236 oo From royalties from E. T. &Co. (for de- tails of which see Schedule B) . . 2,341 50 From sale of shop-right to L. M. . . 25000 . $3,827 50 250 oo Total receipts Expenditures. Expense of procuring patent . Net receipts $3,577 5 The invention is exceedingly useful, as will be abundantly proved. The testimony will show that it has been introduced upon 20,000 mowing- machines, and has increased the value of said machines not less than three dollars each. It is evident, therefore, that the public have been greatly benefited by the use of this invention ; while the fact that C. D. invested his entire time and means, and finally lost his life in the prose- cution of his invention, is respectfully offered as proof that he has not been adequately remuner- ated for his time, ingenuity, and expense be- stowed upon this invention, and the introduction thereof into use. Respectfully submitted. A. B., Executrix. \Plerefolloivsoath. See Form 25.] 46. Reasons of Opposition to an Ex- tension (by Individuals). In the matter of the application of A. B. for an extension of letters patent for improvements in sewing-machines, No. 12213, dated May 15, 1855- To the Commissioner of Patents: We wish to oppose the application above re- ferred to, for the following reasons, viz. : 1. Applicant was not the original and first in- ventor of the improvement claimed by him in said letters patent, the same having been fully described in the English patent No. 27, of the year 1853. 2. If said alleged invention was ever made by applicant, which we deny, it is not useful. 3. Said invention is not valuable and important to the public. 4. Applicant has been adequately remunerated for his time, ingenuity, and expense in originating and perfecting his alleged invention. 5. Applicant has not used due diligence in intro- ducing his alleged invention into general use. 6. Applicant has assigned to other parties all interest in the extension ; and the extension, if granted, would not be for his benefit. (See assignment to C. D., dated April I, 1864; recorded June 2, 1864, in liber J', page 217.) 7. The statement and account filed by applicant do not present a true statement of his receipts and expenditures. E. F. G. H. I. K. DEPOSITIONS. 47. Notice of Taking Testimony. Boston, Mass., March 29, 1869. In the matter of the interference between the ap- plication of A. B. for a paper-collar machine, and the patent No. 85038, granted December 15, 1868, to C. D., now pending before the Com- missioner of Patents. Sir: You are hereby notified that on 'Wednes- day, March 31, 1869, at the office of E. F., esq. t No. 30 Court street, Boston, Massachusetts, at nine o'clock in the forenoon, I shall proceed to take the testimony of G. H., J. K., and L. M., all of Boston, as witnesses in my behalf. The examination will continue from day to day until completed. You are invited to attend and cross-examine. A. B. , By R. Q., his Attorney. , Providence, Rhode Island. PROOF OF SERVICE. State of , county of , ss. : Personally appeared before me, a justice of the peace, the above-named A. B., who, being duly sworn, deposes and says that he served the above notice upon O. P., the attorney of the said C. D., at one o'clock p. m. of the 3oth day of March, 1869, by leaving a copy at his office in Providence, Rhode Island, in charge of his partner, K. S. A. B, Sworn to and subscribed before me, this 3ist day of March, 1869. K. F. (Service may be acknowledged by the party upon whom it is made as follows : Service of the above notice acknowledged. C. D., By E. F., his Attorney.) 48. Form of Deposition. Before the Commissioner of Patents, in the matter of the interference between the applica- tion of A. B. for a paper-collar machine, and the letters patent, No. 85038, granted December 15. 1868, to C. D. Depositions of witnesses examined on behalf of A. B., pursuant to the annexed notice, at the office of E. F., No. 30 Court Street, Boston, Massachusetts, on Wednesday, March 31,1869. Present S. T., esq., on behalf of A. B., and V. W., esq., on behalf of C. D. G. H. (i.) G. H., being duly sworn (or affirmed), doth de- pose and say, in answer to interrogatories pro- Rosed to him by S. T., esq., counsel for A. B., as allows, to wit: Question I. What is your name, age, residence, and occupation? Answer I. My name is G. H. : I am forty-three years of age ; I am a manufacturer of paper col- lars, and reside in Chelsea, Massachusetts. Question 2, etc. And in answer to cross-interrogatories pro- posed to him by V. W., esq., counsel for C. D., he saith : Cross-question I. How long have you known A. B. ? Answer I. , ' O. H. ; 49. Certificate of Officer. {To follow deposition.) State of , county of , ss. At Boston, in said county, on the gist day of March, A. D. 1869, before me personally appeared the above-named G. H., and made oath that the foregoing deposition, by him subscribed, contains the truth, the whole truth, and nothing but the truth. The said deposition is taken at the re- quest of A. B. , at the time and place named in the notice hereto attached, to be used upon the hearing of an interference between the claims of the said A. B. and those of C. D., before the Com* a-Sce Rule 114. PATENTS PAYMENT. 605 missionor of Patents, on the 3d day of May, A. D. 1869. The said C. D. was duly notified, as appears by the original notice, hereto annexed, and attended by V. W., esq., his counsel. E. F., yustice of the Ptace. The niagistrate shall then append to the deposition the notice under which it was taken, shall seal up the testimony and direct it to the commissioner of patents, placing upon the envelope a certificate, in substance as follows : I hereby certify that the within deposition of G. H. (if the package contains more than one deposi- tion, give all the names), relating to the matter of interference between A. B. and C. D., was taken-, sealed up, and addressed to the Commissioner of Patents by me this a6th day of April, A. D. 1869. E. F., yustice of the Place. Registration of Prints and Labels. By an act of Congress approved June 18, 1874 (to take effect on and after the ist day of August, 1874), it is provided that certain prints and labels may be regis- tered in this office. SEC. 3. That in the construction of this act the words "engraving," "cut," and "print," shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the patent office. And the commissioner of patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print, or label, not a trade-mark, six dollars, which shall cover the expense of furnishing a copy of the record under the seal of the commissioner of patents to the party entering the same. SEC. 4. That all laws and parts of laws inconsistent with the foregoing provisions be and the same are hereby repealed. SEC. 5. That this act shall take effect on and after the ist day of August, eighteen hundred and seventy-four. Approved, June 18, 1874. The words " prints " and " labels " as used in this act, so far as it relates to registration in the Patent Office, are construed as synonymous, and are defined as any device, picture, word or words, figure or figures (not a trade-mark) impressed or stamped directly upon the articles of manufacture,or upon a slip or piece of paper, or other material, to be attached in any manner to manufactured articles, or to bottles, boxes and packages containing them, to indicate the contents of the package, the name of the manufacturer or the place of manufac- ture, the quality of goods, directions for use, etc. By the words "articles of manufacture," to which such print or label is applicable by said act, are meant all vend- ible commodities produced by hand, machinery, or art. But no such print or label can be registered unless it properly belong to an article of commerce, and be as above defined : nor can the same be registered as such print or label when it amounts in law to a technical trade-mark. To entitle the owner of any such print or label to register the same in this office, it is necessary that five copies of the same be filed, one of which copies shall be certified under the seal of the commissioner of patents, and returned to the registrant. The certificate of such registration will continue in force for twenty-eight years. The fee for registration of a print or label is six dollars, to be paid in the same manner as fees for patents. The benefits of this act seem to have been originally confined to citizens or residents of the United States, but appear to be extended to British subjects and citizens of Germany by existing treaties. Form of Application for Registration, of Prints and Labels. [Making necessary changes to suit each case.] [FOR AN INDIVIDUAL.] To the Commissioner of Patents : -2 Greenl. Ev. 509. b-5 Masse. Droit Commercial, 229. 0-3 HaKt. 172; 4 N. H. 296; 4 Dev. & B. 435. d-2 Nott. & M'Cord, 519. e-Com. Dig. Merchant, 4. f-Pbillips's Ev. (Cowen and H. ed.) D. 387. jg-i Burr. The undersigned, A. B., of the city of Brooklyn, county of Kings, and State of New York, and a citizen of the United States (or resident therein, at the case may be), hereby furnishes five copies of a label (or print, as the case may be), to be used fot , of which he is the sole proprietor. The title of said label (or print) is , and the said label (or print iconsists of the words and figures as follows, to wit : (Description.) And he hereby requests that the said print (or label) be registered in the Patent Office, in accord- ance with the act of Congress to that effect, ap- proved June 18, 1874. , Brooklyn, N. Y., August I, 1883. Proprietor. [FOR A CORPORATION.] To the Commissioner of Patents: The applicant, a corporation created by author- ity of the laws of the State of New York (or other authority, as the case may be), and doing business at , in said State, hereby furnishes five copies of a label (or print, as the case may be), to be used for , of which it is the sole proprietor. The title of said print (or label) is , and the said label consists of the words and figures as follows, to wit: (Description.) And it is hereby requested that the said labtl (or print) be registered in the Patent Office, in accordance with the act of Congress to that effect, approved June 18, 1874. Witness the seal of said corporation at , , 1883. \Seal.\ , President [or other officer\ Pntholog-y. See MEDICAL LAW. Pawn. See BAILMENTS. Pawnbroker. See AGENCY. Payment. See CONTRACTS. PAYMENT is the fulfilment of a promise, or the performance of an agreement. The dis- charge, in money, of a sum due. The word payment is not a technical term ; it has been imported into law proceedings from the ex- change, and not from law treatises. When payment is pleaded as a defence, the defendant must prove the payment of money or something accepted in its stead made to the plaintiff, or some person authorized in his behalf to receive it. a Payment in its most general acceptation is the accomplishment of every obligation, whether it consists in giving or doing. In a more re- stricted sense payment is the discharge in money of a sum due. b Payment must be made in coined money (or treasury notes made legal tender) if the cred- itor insists upon having it. c Copper cents are not legal tender under the United States Con- stitution. 4 Payment by merchant must be made in money or by bill. 9 But the creditor may waive this right, and anything which he has accepted as satisfaction for the debt will be con- sidered as payment. Upon a plea of payment, the defendant may prove a discharge in bank-notes. Negotiable notes of individuals, or a debt already due from the payee, delivered and accepted, or dis- counted as payment.' Bank-notes in conform- ity to usage and common understanding, are regarded as cash,* unless objei^ed to. h Treas- ury notes are not cash. 1 Giving a check is not considered as payment ; but the holder may treat it as a nullity if he derives no benefit 452; 3 Id. 1516; 9 Johns. 120; 6 Md. 37. h-Met. Mass. 356 ; 8 Ohio, 169 ; 10 Me. 475 : 2 Cr. & J. 16, n. ; 5 Yerg. 199; 4 F.sp. 267; 3 Humph. 162; 6 Ala. (N. S.) 226. 1-3 Conn. 534. 6o6 PAYMENT. from it, provided he has not been guilty of negligence, so as to cause injury to the drawer.J Payment in forged bills is generally a nullity. k So also of counterfeit coin ; but an agreement to sell goods and accept specific money is go9d, and payment of these coins is valid, even though they be counterfeit. 1 And the forged notes must be returned in a reasonable time, to throw the loss upon the debtor." 1 Payment to a bank of its own notes which are received and afterwards discovered to be forged is a good payment. A forged check received as cash, and passed to the credit of a customer, is a good payment. Payment in bills of an in- solvent bank, where both parties were innocent, has been held no payment.? On the other hand, it has been held good payment.' If a bill of exchange or promissory note be given to a creditor, and accepted as payment, it shall be a good payment. 1 " But regularly a bill of exchange or note given to a creditor shall not be a discharge of the debt till pay- ment of the bill, unless so accepted.* If a debtor gives his own promissory note, it is not payment, unless it is so expressly agreed,' and when so expressed it extinguishes the debt." Whether there was such an agreement is a question for the jury. T And if payment be made in the note of a factor or agent employed to purchase goods, or intrusted with the money to be paid for them; if the note be received as payment it will be good in favor of the princi- pal,'" but not if received conditionally; and this is a question of fact for the jury. x A bill of exchange drawn on a third person, and accepted, discharges the debt as to the drawer.? And in an action to recover the price of goods, payment by a bill not dishonored has been held as good defence. 1 Retaining a draft on a third party an unreasonable length of time will oper- ate as payment if loss be occasioned thereby.* In the sale of a chattel, if a note of a third per- son be accepted for the price, it is good pay- ment. 1 * Not so, however, if the note be the promise of one of the partners in payment of a partnership debt.' Payment may be made through the interven- |-2 Parsons' Contr. 136: 2 Campb. 515; 8 T. R. 451 ; 2 Bos. & P. 518 : 4 Ad. & El. 952 ; 4 Johns. 296 ; i Hall (N. Y.)s6; 30 N. H. 256: but see 14 How. 240. It-io Wheat. 333: 2 Johns. 455; 6 Hill, 340; 7 Leigh, 617; 3 Hawks, 568 ; 2 Harr. & J. 368 ; 4 Gill. & J. 463 ; 4 111. 392; ii Id. 137; 3 Penn. St. 330; 5 Conn. 71. l-i T. R. 225; 14 S. & R. 51. m-7 Leigh, 617; n 111. 137. n-i Parsons' Contr. 220. 0-4 Dall. 234; S. C. i Binn. 27; 10 Vt. 141. p-7 T. R. 64; 13 Wend. 101 ; it Vt. 576; 10 N. H. 365; 22 Me. 85. q-i W. & S. 92 ; 6 Mass. 185: 12 Ala. 280; 8 Yerg. 175. The point is slill unsettled, and is said to be a question of intention rather than of law. Story Prom. Notes 125,* 477,* 641. r-Comm. Dig. Merchant (F.); 30 N. H. 540; 27 Ala. iN.S.) 254; 16 III. 161 ; a Duer. 133; 14 Ark. 267; 4 Rich. 600; 34 Me. 324. s-Skinn. 410; i Salk. 124. t- 2 Id. 493; 3 Harr. & Johns. 193; 2 Vt. 290; 4 Id. 555; i ivI'Cord.ot: i Wash. C. C. 328, 449; 3 Serg. & R. 233 ; 6 T. R. 5* ; 7 Id. 64 ; 5 Id. 513 Wrightw. 32 ; i Neville & Man. 229 ; 6 Mass. 143 ; Poth. Ob. >/. 3, c. , art. 4; i Domat bk. 4, ///. 3, 2 i, P- 515; Inst. Just. tion of a third party who acts as the agent of both parties ; as, for example, a stakeholder. If money be deposited with him to abide the event of a legal wager, neither party can claim it until the wager is determined, and then he is bound to pay it to the winner. 4 If the wager is illegal, the depositor may reclaim the money any time before it is paid over. 9 So also with an auctioneer.' A transfer of funds called by the civil law phrase a payment by delegation, is payment only when completely effected and an actual transfer of claim or credit assented to by all the parties is a good payment. h When money is sent by letter, even though the money is lost, it is good payment, and the debtor is discharged, if he was expressly authorized or directed by the creditor so to send it, or if such authority can be presumed from the course of trade. 1 But even if the authority be given or inferred, at least ordinary diligence must be used by the debtor to have the money safely conveyed.^ Payment must be of the whole sum ; and even where a receipt in full has been given for a pay- ment of part of an ascertained sum, it has been held not to be an extinction of the debt.* But payment of a part may be left to the jury as evidence that the whole has been paid; 1 and payment of a part at a different time, m or place," or in any way more beneficial to the creditor than that prescribed by the contract, is good. Giving a chattel, though of less value than the debt, is a discharge,? or rendering certain ser- vices, with the consent of the creditor,' or assigning certain property. 11 So if a stranger pay a part, or give his note for a part, and this is accepted, it is a good payment of the debt. 1 And where a creditor, by process of law, com- pels the payment of a part of his claim, this is generally a discharge of the whole.' The Payment must have been Accepted Knowingly. Thus, if the money is counted out, and the payee takes a part and puts it in a bag, this is a good payment, and if any is lost it is the payee's loss. Where A. paid B. ^100, in the redemption of a mortgage, and B. l*&- 3i 3 ' Thompson Bills, 192, 194. n-5 Wend. 85. V-q Johns. 310. w-i B. & Aid. 14; 7 B. & C. 17. x- 6 Cow. 181; 9 Johns. 310; 10 Wend. 271. y-io Mod. 37. z-4 Esp. Cas. 46 : 3 Campb. 411 ; i M. & M. 28 ; 4 Bingh. 454; 5 M. & S. 62. a-3 Wils. 553; 2 Dall. 100; 138. & R. 318; 2 Wash. C. C. 191. b-3 Cow. 272; i Dev. & B. 291. C-4 Dev. 91, 460. d-4 Campb 37. e-4 Taunt. 474; 5 T. R. 405 ; 8 B. & C. 221 ; 29 Eng. L. & Eq. 424 ; 31 Id. 452 ; see 2 Parsons' Contr. 138. f-2 M. & W. 244 ; i Mann. & R. 614. e-2 Par- sons' Contr. 137. h-4 Bingh. 112; 2 B. & Aid. 30: 5 Id. 228; 7 N. H. 345, 397; 17 Mass. 400. This seems to be very similar to payment by drawing and accept- ance of a bill of exchange. i-Peakc 67; n M. & W. 2 33- J-See 3 Mass. 249 ; Ry. & M. 149 : i Exch. 477; Peake 186. fc-s Co. 177: 2 B. & C. 477: 5 East. 230; 3 N. H. 518 ; ii Vt. 60 ; 26 Me. 88 ; 37 Id. 361 : 10 Ad. & El. 121 ; 4 Gill & J. 3os ; 9 Johns. 333 ; 17 Id. 169 . ir How. loo. 1-s Cranch, n ; 3 N. H. 518. ni-2 Met. (Mass.) 283. n-3 Hawks. 580. 0-15 M. & W. 23. p-Dyer. 75, a; 2 Littell, 49; 3 Barb. Ch. 621. |- 5 Day, 359. r-s Johns. 386; 13 Mass. 424. s-n East. 390: 4 R. & C. 500; 13 Ala. (N. S.) 353; 14 Wend. 116; 2 Met. (Mass.) 283. t-u S. & R. 78; 16 Johns. 121 ; 2 Seld. 179; 6 Cush. 28; 2 Parsons' Contr. 232. u-s Mod. 398. PAYMENT. 607 hade C. put it in his closet, and C. did so, and A. demanded his papers, which B. refused to deliver; and A. demanded back his money, and B. directed C. to give it to him, and C. did, it was held to be a payment of the mortgaged Generally, there can be but little doubt as to acceptance and non-acceptance, and the ques- tion is one of fact for the jury to determine under the circumstances of each particular case. Of course, where notes or bank-bills are given in payment of the debt, the evidence that they were so given is to be the same as evidence of any other fact relating to payment. PAYMENT INTO COURT is depositing a sum of money with the proper officer of the court by the defendant in a suit, for the benefit of the plaintiff and in answer to his claim. In the absence of statutory provisions it may be made under a rule of court granted for that pur- pose, in which case notice of an intention to ap- ply must, in general, have been previously given. The effect is to divest the plaintiff of all right to withdraw the money" except by leave of court,* and to admit conclusively every fact which the plaintiff would be obliged to prove in order to recover the money ;' as, that the amount tendered is due, 1 for the cause laid in the complaint,' to the plaintiff in the character in which he sues, b the jurisdiction of the court ; that the contract was made d and broken as alleged, 9 but only in reference to the amount paid in, f and nothing beyond such facts.* Generally, it relieves the defendant from the payment of costs until judgment is recovered for a sum larger than that paid in. h THE EFFECT of payment is: i. To dis- charge the obligation ; and it may happen that one payment will discharge several obligations by means of a transfer of the evidences of obligation. 1 2. Payment does not prevent a recoveiy when made under a mistake of fact. The general rule is, that mistake or ignorance of law furnishes no ground to reclaim money paid voluntarily under a claim of righU But acts done under a mistake or ignorance of an essential fact are voidable and relievable. Laws of a foreign country are matters of fact,* and the several United States are foreign to each other in this respect. In Kentucky and Con- necticut there is a power of recovery equally, in cases of mistake of law and of fact. 1 In Ohio it may be remedied in equity. 01 In New York a distinction is taken between ignorance T-Viner Abr. Payment (E). w-i Wend. 191 ; i E. D. Smith, 398 ; 3 Watts. 248. x-i Coxe, 298. y-i B. 6 C. 3 ; 6 M. & W. 9 ; 2 Scott (N. S. ) 56 ; 9 Dowl. ai ; i Dougl. (Mich.) 330; 24 Vt. 140; and see 7 Cush. 556. -i Campb. 558 ; 2 Id. 341 ; 5 Mass. 365 ; 2 Wend. 431 ; 7 Johns. 315. a-5 Bingh. 28, 32; 2 Bos. & P. 550; 5 Pick. 285; 6 Id. 340. b-2 Campb. 441. c-s Esp. 17. d-3 Campb. 52; 3 Taunt. 95. e-i B. & C. 3. f-7 Johns. 315; 3 Eng. L. & Eq. 548. g-i Greenl. Ev. tod ; and see a Man. & G. 208, 233 ; 5 C. & P. 247. h- i Wash. 10 ; 3 Cow. 36; 3 Wend. 326 ; 2 Miles, 65; a Rich. 64 : 24 Vt. 140. As to the capacity in which the officer receiving the money acts, see I Coxe, 298 ; 2 Bailey, 28; 17 Ala. 293. 1-Poth. " th. Ob. 554 . j-2 Kent Comm. 491; 2 Greenl. Ev. J 123. It-Story Const. $ 407, 411 ; 9 Pick. 112. 1-ig Conn. 548; 3 B. Mon. 510*; ^ Id. TOO. lll-ii Ohio, 223. l-i8 Wend. 422 ; a Barb. of law and mistake of law, giving relief in the latter case." In England money paid under a mistake of law cannot be recovered back. 3. Part payment of a note will have the effect of waiver of notice as to the whole sum. 4. Pay- ment of a part of the debt will bar the applica- tion of the statute of limitations as to the resi- due.P even though made in goods and chat- tels.' But it must be shown conclusively that the payment was made as a part of the larger debt" EVIDENCE that anything has been done aid accepted as payment is evidence of payment. A receipt is prima facie evidence of pay- ment ; but a receipt acknowledging the recep- tion of ten dollars and acquitting and releasing from all obligations, would be a receipt for ten dollars only.* And a receipt is only prima facie evidence of payment.* And it may be shown that the particular sum stated in the re- ceipt was not paid, and also that no payment has been made. Payment may be presumed by the jury in the absence of direct evidence : thus, possession by the debtor of a security after the day of pay- ment, which security is usually given upon payment of the debt, is prima facie evidence of payment by the debtor. T If the acceptor produce a bill of exchange, such possession is prima facie evidence of payment.* Payment is also conclusively presumed from lapse of time. After twenty years' non-demand, unexplained, the court- will presume a pay- ment without the aid of a jury. 1 Facts which destroy the reason of this rule may rebut the presumption.? And a jury may infer a payment from a shorter lapse of time, especially if there be attendant circumstances favoring the pre- sumption. 1 A presumption may arise from the course of dealing between the parties on the regular course of trade; thus, after two years it was presumed that a workman had been paid, as it was shown that the employer paid his workmen every Saturday night, and this man had been seen waiting among others.' A receipt for the last year's or quarter's rent is prima facie evidence of the payment of all the rents previously due. b If the last instaU ment on a bond is paid in due form, it is evi- dence that the others have been paid ; if paid in a different form, that the parties are acting under a new agreement. 508. 0-4 Ad. & El. 858. p-aa N. H. 219 ; 6 Md. 201 ; 8 Mass. 134 ; 28 Eng. L. & Eq. 454. q-a Cr. M. & R. 337; 4 Ad. & El. 71 ; 4 Scott (N. R.) 119. r-i Cr. M. & R. 252; a Bingh. (N. C.) 241 ; 6 M. & W. 824; 3 Miss. 663 : 24 Id. 92 ; 9 Ark. 455 ; u Barb. 554 ; 24 Vt. 216; see also 2 Parsons' Contr. 353-359. 8-2 Ves. Ch. 10; 5 B. & Aid. 606; 18 Pick. 325; i Edw. Ch. 341. t-2 Taunt. 241; 7 Cow. 334; 4 Ohio, 346. For cases explaining this rule see also 2 Mas. C. C. 141 ; n Mass. 27; 9 Johns. 310: 4 Harr. & M'H. 219; 3 Caines, 14. n-2 T. & R. 366; 26 N. H. 12 ; 9 Conn. 401 ; 2 N. J. 59 ; 10 Humph. 188 ; 13 Penn. St. 46. v-i Stark, 374 ; 9 S. & R. 385. w-7 S. & R. 116; 4 Johns. 296 ; 2 Pick. 204. X-i Campb. 27 ; 14 S. & R. 15 ; 6 Cow. 401 ; a Cranch. 180. y-i Pick. 60; a La. 481. 35-7 S. & R. 410. As to presumptions against the existence of the debt, see 5 Barb. 63. a-t Esp. 296 ; see also 3 Campb. to. b-a Pick. 204. 39 6o8 PAYMENT. Where receipts have been regularly given for the same amount, but for a sum that was smaller than was due by the agreement, it was held evidence of full payment. WHEN TO BE MADE. Payment must be made at the exact time agreed upon. Where payment is to be made at a future day, of course nothing can be demanded till the time of payment, and, if there be a condition pre- cedent to the liability, not until the condition has been performed. And where goods had been sold "at six or nine months' credit" the debtor was allowed the option. 4 Where no time of payment is specified, the money is to be paid immediately on demand. 9 When pay- ment is to be made at a certain time, it may be made at a different time if the plaintiff will accept.' The debtor cannot compel the creditor to receive payment before the debt is due. WHERE TO BE MADE. Payment must be made at the place agreed upon, unless both the parties consent to a change. If no place of payment is mentioned, the payer must seek out the payee.* So, too, the creditor is entitled to call for payment of the whole of his claim at one time, unless the parties have stipulated for payment in parcels. Questions of payment by executors, administrators, and guardians are regulated by statute. As a, general rule debts are to be paid first, then specific legacies. The personal property is made liable for the tes- tator's debts, and after that is exhausted, the real estate. WHO MAY MAKE. Payment may be made by the primary debtor, and by other persons from whom the creditor has a right to demand it. An agent may make payment for his principal. An attorney may discharge the debt against his client. h One of any number of joint and several obligors, or one of several joint obligors, may discharge the debt. 1 Pay- ment may be made by a third person, a stranger to the contract. It may be stated generally, that any act done by any person in discharge of the debt, if ac- cepted by the creditor, will operate as payment. To WHOM TO BE MADE. Payment is to be made to the creditor. But it may be made to an authorized agent. And if made in the ordinary course of business, without notice re- quiring the payment to be made to himself, it is binding upon the principal.^ Payment to a third person by appointment of the principal, will be substantially payment to the principal. k Payment to the agent who made the contract with the payee (without prohibition) is pay- C-4 Martin, 698. d-s Taunt. 338. e-Viner Abr. Pay- mtnt (H.I ; i Pet. 455 : 4 Rand. 346. f-Viner Abr. Pay- mint (H). g-J. B. Moore Priv. Connc. 274 ; Shep. Touchst. 378 ; 2 Brod. & B. 165 ; 2 M. & S. 120 ; 2 M. & W.223;2oEng L. & Eq. 498. li-5 Bingh. 506. i-Viner Abr. Payment (B). j-it East. 36; 6 Mann. & G. 166; Cowp. 257; 4 B. & Aid. 395; 3 Stark. Cas. 16; i Campb. 477. h-i Phill. Ev. 200. 1-t Campb. 339 ; 16 Johns. 86; 2 Gall. C. C. 565; 10 B. &C. 755. m-6 M. & 8.156. n-n East. 36. o-n East. 36. p-3 B & P. 485; 15 East. 65. q-s B. & Aid. 27. r-n East. 36; 5 M. & 8.147; 2C. &P. 49 S-iW. Bl. 8; i Wash. C. C. 9; i Call, 147. t-i Call, 147; i Coxe, ment to the principal. 1 But payment may be made to the principal after an authority given to an agent to receive. Payment to a broker or factor who sells for a principal not named is good." Payment to an agent when he is known to be such will be good if made upon the terms authorized, if there be no notice not to pay him ;P and even after notice, if the factor had a lien on the money when paid.i If the broker sell goods as his own, payment is good though the mode varies from that agreed, on. r Payment to an attorney is as effectual as payment to the principal himself.' The attor- ney of record may give a receipt and discharge the judgment* if made within one year." Not so of an agent appointed by the attorney to collect the debt. T Payment by an officer to an attorney whose power had been revoked before he received the execution did not discharge the officer. w Payment to one of two copart- ners discharges the debt, x even after dissolu- tion^ So payment to one of two joint creditors is good, though they are not partners. 1 But payment by a banker to one of several joint depositors, without the assent of the others, was held a void payment.* Payment to the wife of the creditor is not a discharge of the debt unless she is expressly or impliedly his agent. b An auctioneer em- ployed to sell real estate has no authority to receive the purchase money by virtue of that appointment merely. Usually the terms of the sale authorize him to receive the purchase money. d Payment was made to a person sit- ting in the creditor's counting-room, and appar- ently doing his business, and it was held good,* but payment to an apprentice so situated was held not to be good. f Generally, payment to the agent must be made in money to bind the principal.* Power to receive money does not authorize an agent to commute 11 nor submit to arbitration. 1 An agent authorized to receive money can- not bind his principal by receiving goods,J or a note : k but a subsequent ratification would remedy any such departure from authority; and it is said that slight acts of acquiescence will be deemed ratification. Payment to one of several joint creditors of his part, will not alter the nature of the debt so as to enable the others to sue separately. 1 Payment to one of several executors is sufficient. 1 " Payment to a trustee generally concludes the cestui que trust in law." 214; i Pick. 347; 10 Johns. 220; 2 Bibb. 381. n-i Me. 257. v-2 Dougl. 623. W-I3 Mass. 465 ; 3 Yeates, 7 : see also i Des. Ch. 461. X-8 Wend. 542 ; 15 Ves. Ch. 198 ; 2 Blackf. 371 ; i 111. 107; 6 M. & S. 156; i Wash. C. C 77. y-4 C. & P. 108 : and see 7 N. H. 568. -4 J. J. Marsh, 367. a-i M.& R. 145 : Ry. & M. 364 ; 4 Eng. L. & Eq. 342. b-2 Scott (N. R.) 372. i Addis. 316; 2 Freem. 178 ; 23 Me. 335. c-i Mood. & R. 326. d-s M. &W. 645. e-iM. &W. 200; 5 Taunt'. 307. f-2 Cr. & M. 304. ir-it Mod. 71 ; 10 B. & C. 760. h-i Wash. C. C. 454 ; i Pick. 347. 1-5 How. 891 ; see also Story Ag. \ 99. 1-4 C. a. P. 501. k-i Salk. 442 ; 2 Ld. Raym. 928 ; 5 M. & W. 645. 1- i Tyrwh. 4 88. m-3 Atk. Ch. 695. 11-5 B. & Ad. 9* PERSONS PERSONAL PROPERTY PLEADINGS. 609 Subsequent ratification of the ngent's acts is equivalent to precedent authority to receive money. 1 Peace Snrety to Keep, etc. See CRIMINAL LAW. Penalty. See BONDS OR OBLIGATIONS; CON- TRACTS, ETC. Performance. See CONTRACTS. Peril, Perils of the Sea. See INSURANCE. Perjury. See CRIMINAL LAW. Perpetuating Testimony. See EVIDENCE. PERSONS. See various sub-heads, ante and post. A PERSON is a man, woman, or child, con- sidered as opposed to things, or distinct from them. A human being. A natural being. A man considered according to the position (pri- vate or official) which he holds in law, with all the rights to which the place he holds entitles him, and the duties which it imposes. 11 A cor- poration which is an artificial person. 6 The term "person," as is seen, is more extensive than man including artificial beings, as cor- porations, as well as natural beings. But when the word " persons" is spoken of in legislative acts, natural persons will be intended, unless something appear in the context to show that it applies to artificial persons." Natural persons are divided into males, or men, and females, or women. Men are capable of all kinds of en- gagements and functions, while women are re- stricted by the law, both civil and political. Persons are also divided into citizens and aliens, when viewed with regard to their politi- cal rights. When they are considered in rela- tion to their civil rights, they are living or civilly dead. Persons are again divided into legitimate and illegitimate, when considered as to their rights by birth. When viewed in their domestic relations they are divided into parents and children ; husbands and wives ; guardians and wards ; and masters and servants. Personal Chattels. See PERSONAL PROPERTY. Personal Contract. See CONTRACTS. Personal Covenant. See CONTRACTS. PERSONAL, PROPERTY. See REAL PROP- BRTY. PERSONAL PROPERTY is the right or interest which a man has in things personal. The right or interest less than a freehold which a man has in realty, or any right or interest which h has in things movable. Every tangible thing which is the subject of ownership not forming a part or parcel of real property. Per- sonal property is to be distinguished from things personal. There may be, for example, a per- sonal estate in realty, as chattels real ; but the only property which a man can have in things personal must be a personal property. The essential idea of personal property is that of property in a thing movable or separable from the realty, or of perishability or possibility of brief duration of interest as compared with the z-Poth. Ob. n. 528. a-See i Bouv. Inst. n. 137. For the derivation of the word person as it is understood m law, see i Toullier, n, 168; i Bouv. Inst. . 1890, note, b-i Sharsw. Bl. Comm. 123; 4 Bingh. 669; Woode*on Lect. 116; i Mod. 164. c-z 111. 178. d-See 2 Sharsw. Bl. Comm. 14, and notes ; 384, and notes, e- ii East. 362 ; 12 Me. 337 ; 5 B. & C. 829 ; 9 Id. 561 : 10 Ad. & EJ. 753. f-Walker Am. L. 211 ; 4 Dane Abr. owner's life in a thing real, without any action on the part of the real owner. d A crop growing in the ground is personal property so far as not to be considered an in- terest in land under the statute of frauds.* It is a general principle in this country, that stock held in corporations is to be considered as per- sonal property.' Title to personal property is acquired: I. By original acquisition by occu- pancy ; as, by capture in war, by finding a lost thing. 2. By original acquisition, by accession. 3. By original acquisition, by intellectual labor; as, copyrights and patents for inventions. 4. By transfer, which is by act of law, by for- feiture, by judgment, by insolvency, by intes- tacy. 5. By transfer by act of the party, by gift, by sale.* Persnasion. See ACTS. Petit L,arceiiy. See CRIMINAL LAW. Petit Treason. See CRIMINAL LAW. Physician. See MEDICAL LAW. Piracy. See COPYRIGHT ; CRIMINAL LAW. Place of Business. See BILLS, BONDS, AND NOTES. PLEADINGS. See COPYRIGHTS; PATENTS, ETC. PLEADINGS are the written statements of the parties, to an action, suit, or other judicial pro- ceeding, by which the matter in controversy is brought to an issue, i. e., a single point, affirmed on on% Bide and denied on the other. The written statements of the plaintiffs cause of action, and of the defendant's ground of de- fence. IN CIVIL PRACTICE, pleadings are state- ments in a logical and legal form of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence ; t is the formal mode of alleging that on the record (this is in writing, whereby it is made a part of the record by filing, entering, or recording by the proper officer of the court) which constitutes the support or the defence of the party in evi- dence. 11 The object of pleading is to secure a clear and distinct statement of the claims of each party, so that the controverted points may be exactly known, examined, and decided, and the appropriate remedy or punishment ad- ministered. 1 Good pleading consists in good matter pleaded in good form, in apt lime, and due order.J Good matter includes all facts and circumstances necessary to constitute the cause of complaint, or ground of defence, and no more. It does not include argument or mat- ters of law. But some matters of fact need not be stated, though it be necessary to estab- lish them as facts. Such are, among others : I. Facts of which the courts take notice by vir- tue of their being courts : as, the time of acces- sion of the head or ruler of the government;' time and place of convening the legislature or of 670 ; Sullivan Land Titles, 71 ; Hilliard Real Prop. 18. Jf-See generally 16 Vin. Abr. 335; 8 Com. Dig. 474, 562 ; i Belt. Supp. Ves. Ch. 49, 121, 160, 198, 255. 368, 369, 399, 412, 478 ; 2 Id. io. 40, 129, 290, 291, 341 , i Vern. Ch. 3, 170, 412; 2 Salk. 449 ; 2 Ves. Ch. 50, 776,261,271,336,683: 7 Id. 453. li-3 T. R. 1^9'; Dougl. 278 ; Com. Dig. PI. (A) Bac. Abr. PI. & P'l. ; Cowp. 682. i-See Cowp. 682 ; Dougl. 159. J-Co. Utt. 303. k-2 Ld. Kaym. 794. PLEADINGS. Congress; 9 public statutes, and the facts they ascertain/ including ecclesiastical, civil, and marine laws ;* but not private 11 or foreign laws ; l common law rights, duties, and general cus- toms ;J the days of the week ; public holidays, etc. ; k political divisions ;' the meaning of Eng- lish words and terms of art in ordinary accepta- tion ; their own course of proceedings ; n and that of courts of general jurisdiction. 2. Facts which the law presumes : as, the innocence of a party ; illegality of an act, etc.P 3. Matters which the other party should plead, as being more within his knowledge."! 4. Mere matters of evidence of facts.' 5. Unnecessary matter : as, a second breach of condition, where one is sufficient;* or intent to defraud, where the facts alleged constitute fraud.* 6. Irrelevant matter." Such matter may be rejected without injury to the pleading, if wholly foreign to the cause, or repugnant ; T but in many cases matter must be proved as stated, if stated.* 7. The matter stated must be true and sus- ceptible of proof; but legal fictions when allow- able may be stated as facts.* The pleadings should be according to the established forms.r This rule is, however, one merely of caution, as many radical changes have been made in the various States in the law of pleading. Still, reference to and some regard for old forms will be found quite profit- able. In general, facts should be stated logic- ally, in their natural order, with certainty, clearly and distinctly. So that, the party who is to answer, the court and jury, who is to try the cause, may readily understand what is meant * with precision,* and with brevity. 1 * The facts stated must not be insensible or repug- nant,* nor ambiguous or doubtful in meaning, 3 nor argumentative,* nor by way of recital ; f and should be stated according to their legal effect and operation.* As to the time of pleading, see GENERAL STATUTES. The order of pleading different matters is of importance as affecting the defendant, who may oppose the plaintiff's suit in various ways. The order is as follows : 1. To the jurisdiction of the court. 2. To the disability, etc., of the person; i. Of the plaintiff; 2. Of the defendant. 3. To the plaintiff's complaint, correct de- claration, or petition (in other words to the e-Sc i Saund. 131. f-i T. R. 45 . fj-Ld. Raym. 338. h-2 Dougl. 97. i-2 Garth. 273; 4 R. I. 523. f- Ld. Raym. 1542; Co. Litt. 175; Cro. Car. 561. It- Salk. 269; 6 Mod. 81; 4 Dowl. 48: 4 Fla. 158. 1- Marsh. 124 ; Co. 2d Inst. 557 ; 4 B. & Aid. 242 ; 6 111. 73. m-i Rolle Abr. 86, 525. n-i T. R. 118; 2 Lev. 176; 10 Pick. 470; see 16 East. 39. O-T Saund. 7-5; 5 McLean C. C. 167; 10 Pick. 470; 3 B. & P. 183- i Greenl. Ev. $ 4-6. p- 4 M. & S. 105 ; i B. & Aid. 463 ; 2 Wils. 147; 6 Johns. 105 ; 16 East. 343 ; 6 Conn. no. q-i Sharsw. HI. Comm. 293, n. ; 8 T. R. 167; 2 H. M. 530 ; 2 Johns. 415 ; 9 Cal. 286 ; i Sandf. 89 ; 3 Cow. 96. r-oCo.Q6; Willis, 130; 25 Barb. 457; 7"Texas, 603; 6Blackf.i73: i N.Chipm. 293. 8-2 Johns. 443 ; i Saund. 58, n. I ; 33 Miss. 474; 4 Ind. 409; 23 N. H. 415 ; 12 Barb. 27 ; 2 Green. 577. t-i6 Texas, 335 ; see \ M. & S. 182. u-i Chitty PI. 209. v-7 Johns. 462 ; 3 plaintiff's cause of action as it appear* in his first pleading). 4. To the writ (or summons, etc.) I. To the form of the writ, first matter, apparent on the face of it. Second matter not appearing on the writ. 2. To the action of the writ. 5. To the action itself in bar. This is the natural order of pleading, be- cause each subsequent plea admits that there is no foundation for the former. 11 An excep- tion exists where matter is pleaded which has arisen or come to the plaintiff's knowledge, since the last continuance, or since the last stage of the suit, and where the subject-matter is one over which the court has no jurisdiction, a failure to plead such new matter cannot con- fer jurisdiction. 1 Whatever may be the names given, rules made by courts, or methods prescribed by the legislature, or pursued by the parties, court, or jury, the end of pleading is still the same, namely, the production of one or more points in issue, where a single fact is affirmed by one party and denied by the other.J See GENERAL STATUTES, title CIVIL PRACTICE. IN CRIMINAL PRACTICE the rules of plead- ing are the same as in civil practice; there is, however, less liberty of amendment of indict- ments and informations. The order of the defendant's pleading is as follows : 1. To the jurisdiction. 2. In abatement. 3. Special pleas in bar, as, former acquittal, former conviction, pardon, etc. 4. The general issue. See GENERAL STA- TUTES, title CRIMINAL PRACTICE. IN EQUITY PRACTICE pleadings consist in formal written allegations or statements of the respective parties on the record to maintain the suit, or to defeat it, of which, when contested in matters of facts they propose to offer proofs, and in matters of law to offer arguments to the court. k The substantial object of pleading is the same, but the forms and rules of pleading are very different in law and in equity. See EQUITY, ante, and GENERAL STATUTES, title PRACTICE. Pledgee. See BAILMENTS. POJKOII. See MEDICAL LAW. Policy. See INSURANCE. Polygamy. See CRIMINAL LAW, " Bigamy." Pouuds. bee ANIMALS. Pay, 472 ; 2 Mass. 283 ; 8S.&R. 124; n Ala. 145 ; 16 Texas, 656; 7 Cal. 348 ; 23 Conn. 134 ; i Ducr, 242 ; 6. Ark. 468; i Ala. N. S. 320. w-7 Johns. 321 ; 3 Day,. 283 ; Phill. Ev. 160. X-2 Barr. 667; 4 B. & P. 140.! >--Co. Litt. 303; 6 East. 561; 3 Co. 48, t. z-Cowp. 682 ; 2 B. & P. 267 ; Co. Litt. 303 ; 13 East. 307 : 33 Miss. 669 ; i Hempst. 228. B-I3 Johns. 4-57 ; 19 Ark. 695; 5 Duer, 689. fo-36 N. H. 458 ; i Chitty PI. 212. O-i Salk. 324 ; 7 Co. 25 ; 25 Conn. 431 ; 5 Blackf. 339. 145; > Hawks, 116; i McLean C. C. 45, 518; 10 N. H. 432; 4 Id. 214 : 2 A. K. Marsh, 158 ; 9 Dana, 322, 465 ; 6 Pet. 341 ; 8 Leigh, 497 3 Ohio, 281, REAL PROPERTY. BRICK EARTH. See WASTE, below. BUILDINGS. Every edifice erected or fixed upon or over the soil, whether composed of stone, brick, marble, wood, or other proper substance connected together and designed for use in the position in which it is erected or fixed, is an accessory to the soil, and is therefor real estate and belongs to the owner of the oil. T See LAND; WASTE, below. CAVEAT EMPTOR. (" Let the purchaser take heed," that is, let the person buying see that the title be good.) w In every sale of real property a purchaser's right to relief at law or in equity on account of defects or incumbrances in or upon the property sold, depends solely upon the covenants for title which he has re- ceived, 1 unless there be a fraud on the part of the vendor.* CLAY. See WASTE, below. COAL. See WASTE, below. COASTS, or margins of a country bounded by the sea, include the natural appendages of the territory which rise out of the water, although they are not of sufficient firmness to be in- habited or fortified. Shoals perpetually covered with water are not, however, comprehended under the name of coast. The small islands situate at the mouth of the Mississippi, com- posed of earth and trees drifted down by the river, which are not of sufficient consistency to support the purposes of life, and uninhabited, though resorted to for shooting birds, are a part of the coast. 1 CORPORATIONS. In case of corporations, the same property may assume character of both real and personal. Thus, if a corporation hold real estate, such as a mill or banking house, it would be in the hands of the corpora- tion real estate, but as constituting a part of the property owned and represented in the form of stock by the members constituting the body of the corporation it is personal estate.* But the shares in corporate property may be real estate when declared to be so by the charter creating it, or when the corporation is merely consti- tuted to hold and manage lands. 6 COURSES are directions of a line with refer- ence to a meridian. Where there are no monu- ments, the land must be bounded by the courses and distances mentioned in the patent or deed. When the lines are actually marked, they must be adhered to, though they vary from the course mentioned in the deed.^ See BOUNDARIES, above. CREEKS are lesser streams than rivers. 8 A v-CruiseDig. tit. 1,^46. w-Tayler. x-Sugd.Vend. 425; Co. Litt. 384, a.; Butl. note; Dougl. 665 : i Salk. 211 ; 2 Freem. Ch. i ; 3 Swanst. Ch. 651 ; i Co. i ; 17 Pick. 475: ii Ga. 311 ; i S. & R. 52. y- 3 B. & P. 162; 14 Me. 133; 30 Id. 266; 2 Caines, 192 ; 2 Johns. 519 : 5 Id. 79 ; o Id. 36 ; 24 Penn. St. 142 ; 4 Gill. 300 ; 3 Md. 351; i Spence, 353 ; 4 111. 334; n Id. 146; 8 Leigh, 658 ; 7 Gratt. 238 ; 15 B. Mon. 627 ; Freem. Ch. 134.276; 3 I red. 408 ; 3 Humphr. 347; 5 Iowa, 293 ; consult Rawle Cor. z-s C. Rob. Adtn. 385, c. -3 M. & W. 422; Angell & Ames, $ 557. fo-2 P. Wms. 127; 2 Conn. 507 : :o Mass 150. c-4 Wheat. 444; 3 Pet. 06; 3 Murph. 82; 2 Harr. & 1.267; 5 Id. 254. l- Overt. 304 ; 7 Wheat. 7. e-ia Pick. 184 ; Cowp. creek passing through a. deep, level marsh, and navigable by small craft, may, under legislative authority, be obstructed by a dam, or wholly filled up and converted into house lots, such obstructions not being in conflict with any act of Congress regulating commerce.' CURTESY is the estate to which a man is en- titled by common law, on the death of his wife, in the lands or tenements of which she was seized in possession in fee simple or other- wise during their coverture, provided they have had lawful issue born alive which might have been capable of inheriting the estate. It is the freehold estate for the term of his natural life.* See title CONVEYANCES, ante. CURTILAGE is the enclosed space immedi- ately surrounding a dwelling-house, contained within some enclosure. 1 DEEDS. See title CONVEYANCES, ante. DERELICT LAND is that which is abandoned or diverted by its former owner. Also land left uncovered by the receding of water from its former bed. h When left so by degrees the derelict land belongs to the owner of the soil adjoining; but when the sea retires suddenly it belongs to the government. 1 DEVISE. See CONVEYANCES, " Wills." DETAINER is the withholding of possession of real property from its owner. This may be either lawful and peaceable, or unlawful and forcible. The detainer is lawful where the en- try has been lawful, and the estate is held by virtue of some right. It is unlawful and forci- ble where the entry has been unlawful and with force, and it is retained by force against right; or even where the entry has been peaceable and lawful, if the detainer be by force and against right : as, if a tenant at will should detain with force after the will has de- termined, he will be guilty of a forcible de- tainer.J A forcible entry or detainer consists of the unlawful or forcible taking or keeping posses- sion of lands or tenements by means of threats, force, or arms, and without authority of law. k If a party enter peaceably, and then turn out the possessor by force, or frighten him out of the possession by threats, it is a forcible entry. 1 As to forcible detainer, the same violence or terror which will make an entry forcible will also make a detainer forcible. A forcible entry and a forcible detainer are separate and distinct causes of action and offences. Force, either actually applied or justly to be feared from the conduct of the defendant, is essential 86. Washb. R. Prop. 127. x-See Blount Spelman; 10 Cush. 480; 4 Bl. Comm. 224; i Hale PI. Cr. 558 ; 2 Russ. Cr. 13 ; i Id. 790; Russ. & R. 289 ; i C. & K. 84; 2 Mich. 250. n-2 Rolle Abr. 170; 2 Bl. Comm. 262; i Crabbe R. Prop. 109. i-2 Bl. Comm. 262; i Brown Civ. L. 239; i Sumn. C. C. 328, 490; i Gall. 133; Bee Adm. 62, 178, 260 ; Ware Dist. Ct. 332. J- Hawk. PI. Cr. Ch. 64, 22 ; 2 Chitty Pr. 238 ; Com. Dig. Det. B. 2; 8 Cow. 216; i Hall, 240; 4 Johns. 198 ; 4 Bibb. 501. k-See Com. Dig. h. t. : Gabbett Crim. L. 1-Bac. Abr. Fore. Ent. B. na-i Russ. 311. 11-32 Cal. 339 ; I Serg. & Rawle, 124 ; 8 Cowen, 226. f-2 Pet. 245 ; i Pick. 180 ; 21 Id. 344 ; 3 Met. is.) 202 ; 2 Stockt. 211 ; see 4 B. & Aid. 589. jf-i 6i 4 REAL PROPERTY. to support the action or prosecution. Gener- ally, the person having the right of possession to land entered upon by another, or kept from him unlawfully by a tenant holding over, may enter and take possession, using as much force as may be necessary for that purpose : provided, that in so doing he commits no act amounting to a breach of the peace, or leading directly thereto.? See ESTATES AT SUFFERANCE, be- iow. DOORS. See WASTE, below. { DovEHOUSft. See WASTE, below. ' DRAINAGE through another man's land can only be had under legislative authority, or where the right is granted or exists by pre- scription,'' or by consent of the owner. DRIPPING water from one house upon another can only be allowed where the owner has ac- quired the right by grant or prescription ; and no one has a right to construct his*house so as to let the water drip over his neighbor's land. 1 " EASEMENTS are rights in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with the general property of such owner. 8 Easements are as various as the exigencies of domestic convenience or the pur- poses to which buildings or lands may be ap- plied. The following easements or rights attach to land as incidents or appurtenances, viz. : 1. Pasture in other land. 2. Fishing in other waters. 3. Taking game on other land. 4. Taking wood, minerals, or other produce of the soil, from other land. 5. Receiving air, light, or heat from or over other land. 6. Receiving or discharging water over, or having support to buildings from, other land. 7. Going on other land to clear a mill- stream, or repair its banks. 8. To draw~\vater from a spring there, or do some other act not involving ownership. 9. Carrying on an offensive trade.* 10. Burying in a church or a particular vault. Some of these are affirmative or positive; that is, authorizing the commission of acts on the lands of another actually injurious to it ; as, a right of way ; or negative, being only con- sequently injurious; as, forbidding the owner from building to the obstruction of light to the dormant (or existing) tenement.' All easements must originate in a grant of the property, or an agreement, express or im- plied, of the owner of the servient (or subordi- O-5 Cal. 156. p-i Handy, 521 ; 8 Eng. C. L. 280 ; 7 T. R. 421 : 2 Foster (N. H.) 13; 4 Johns. 149; i Watts & Serg. 90 ; 7 Mete. 147-157 ; 13 Pick. 39 ; 6 Car. & P. 284; i Man. & Gr. 644; 55 Eng. C. L. 757 ; 8 T. R. g'o; 31 Me. 293. q-See 3 Kent Comm. 436; 7 M. & 354 : Washb. Easm. r-i Rolle Abr. 107 ; see 3 Kent Comm. 436; Dig. 43, 23, 4, 6 ; n Ad. & E. 40. 8-2 Washb. R. Prop. 25. t-2 Bingh. (N. C.) 134; 5 Met. (Mass.) 8. n-Washb. Easm. ; 8 Ho. L. Cas. 362 ; 3 B. & Ad. 735 ; n Q. B. 666. v-Tudor L. Cas. 107 ; 2 Washb. R. Prop. 26. Bl. Comm. 263. W-Gale Easm. 23, 81,128; 2 t-a Wash. R. Prop. 56-60, 82-85, nate) tenement. The evidence of their exist- ence, by the common law, may be by proof o( the agreement itself, or by prescription requir- ing actual and uninterrupted enjoyment im memorially, or for upwards of twenty years, tc the extent of the easement claimed, from which a grant is implied. A negative easement does not admit of possession ; use therefore is not essential to its existence.*' Easements are extinguished: I. By release. 2. By merger, when the two tenements or par- cles of land are united under the same title and to the same person. 3. By necessity, as by a license to the servient owner to do some act inconsistent with its existence. 4. By ces- sation of enjoyment, when acquired by pre- scription, the non-user being evidence of a re- lease, when the abandonment has continued at least as long as the user from which the right arose. In some cases a shorter time will suf- fice. 1 EMINENT DOMAIN is a power to take private property for public use/ which exists only in cases where public convenience or necessity demands its exercise. 1 This right may be exer- cised upon both corporeal property, as land, or incorporeal, as franchises." Eminent domain is distinguished from pub- lic domain, which is property owned absolutely by the State in the same manner as an indi- vidual holds his property , b ENTRY. See DETAINER, above. EQUITY OF REDEMPTION is a right which a mortgagee of property, or other person having an interest in it, has of redeeming it after it has been forfeited at law by the non-payment of the money secured when due, with interest and costs. Any person who is interested in the mortgaged property, or any part of it, or who has a legal estate therein, or a legal or equit- able lien thereon, provided he comes in as privy (a partaker, person interested, etc.) in estate with the mortgagor, may exercise the right. These include heirs, devisees, execu- tors, administrators, and assignees of the mort- gagor; 8 subsequent incumbrancers ; d judgment creditors; 8 tenants for years ; f ajanitress;* dow- ress and tenant by curtesy; h one having an easement. 1 ESCROW. See CONVEYANCES, ante. ESTATES may be limited in duration to the life of one's self to the life of another, or others.J . IN COMMON are those held in joint possession by two or more persons at the same time by several and distinct titles. k 453-456 ; Washb. Easm. y-6 How. 536. -6 How. S45. W-23 Pick. 360; 6 How. 529; i Rice, 383; n N H. 19; 17 Conn. 454. fo-37 Am. Jur. 121; 2 Kent Comm. 339 ; 3 Yerg. 389 ; 6 How. 540. C-Coote Mortg. 516; 2 Root. 509 ; 2 Hayw. 22 ; 14 Vt. 501 ; 10 Paige Ch. 49: 9 Mass. 422. d-5 Johns. Ch. 35; 2 Barb. Ch. 371 : i Dana, 23 ; 8 Gush. 46. e-2 Litt. 382 , 4 Hen. & M. 101 ; 4 Yerg. 10 ; 2 Cal. $95 ; 2 Dev. & B. 285. f-8 Met. (Mass.) 517 ; 7 N. Y. 44. BT-I Vern. Ch. 190 : 2 White & L. L. Cas. 752. 11-14 Pick. 98. i-22 Pick. 401. |-i Washb. R. Prop. 88; 2 Sharsw. Bl. Comm. 120. k-i Washb. R. Prop. 415 ; 2 Bl. Comm. 191 ; 2 Flin> off R. Prop. 345 ; i Prest. Est. 139. REAL PROPERTY. ESTATES ON CONDITION. See CONVEYANCES ; CONDITIONS. IN COPARCENARY are those which sev- eral persons hold as one heir, whether male or female. Such estates have three unities, time, title, and possession ; but the interests of the coparceners may be unequaU BY THE CURTESY are those to which a husband is entitled upon the death of his wife, in the lands or tenements of which she was seized and possessed in fee simple or fee tail during their coverture, provided they have law- ful issue born alive, and possibly capable of in- heriting her estate.* IN DOWER are those which a widow has for her life in some portion of the lands and tenements of which her husband was seized at any time during coverture, and which her issue might have inherited if she had any, and which is to take effect in possession from the death of her husband. 1 IN EXPECTANCY are those giving a pres- ent or vested contingent right of future enjoy- ment; one in which the right to taking or receiving the profits is postponed to some future period. 1 , FEE SIMPLE. See CONVEYANCES, ante. , FEE TAIL. See CONVEYANCES, ante. OF INHERITANCE are those which may descend to heirs.* Such are all freehold estates, except estates for life. OF JOINT TENANCY are those where several persons have any subject of property jointly between them in equal shares by pur- chase. 11 The right of survivorship is the dis- tinguishing characteristic of these estates. * FOR LIFE are freehold estates, not of inheritance, but which are held by the tenant for his own life, or the life or lives of one or more other persons, or for an indefinite period, which may endure for the life or lives of per- sons in being, and not beyond the period of a life.P IN POSSESSION are those where the ten- ant is actually taking or receiving the rents and other advantages arising therefrom.* IN REMAINDER are those limited to take effect in possession or in enjoyment, or in both, subject only to any term of years or contingent interest that may intervene immediately after the regular expiration of a particular estate of freehold, previously created together with it, by f-i Wnshb. R. Prop. 414 ; 2 Sharsw. Bl. Comm. 188 ; 4 Kent Comm. 366. li-i Washb. R. Prop. 128 ; 2 Crabb R. Prop. ?TO74 ; Co. Litt. 30, a. ; 2 Sharsw. Bl. Comm. 126 ; i Greenl. Cruise Dig. 153 ; 4 Kent Comm. 373, n. a. I-i Washb. R. Prop. 140 ; Park. Dow. 5 ; 2 Sharsw. Bl. Comm. 129 ; 4 Kent Comm. 41 ; i Greenl. Cruise Dig. 64. x-i Greenl. Cruise Dig. 701. z-i Washb. R.Prop. 51 : i Steph. Comm. 218. in -Crabb R. Prop. 945. n-i Washb. R. Prop. 406; Wms. R. Prop. 112; i Bl. Comm. 180. 0-Litt. ? 280. p-i Washb. R. Prop. 88; 2 Crabb R. Prop. # 1020; i Greenl. Cruise Dig. 102 ; Co. Litt. 42, a. ; Broct. Lib. 4 Ch. 28, g 207. q-2 Crabb R. Prop, jj 2322 ; 2 Sharsw. Bl. Comm. 163 ; i Greenl. Cruise Dig. 701. r-2 Fearne ConK Rem. (Sm. Ed.) \ 159 ; 2 Sharsw. Bl. Comm. 163 ; Greenl. Cruise Dig. 701 ; 4 Kent Comm. 200. 8-2 Sharsw. Bl. Comm. 175 ; Co. Litt. 83 ; Crabb R. Prop. \ 234$. t-plowd. 151 ; j Greenl. the same instrument, out of the same subjed of property.' IN REVERSION are residues of estates left in the grantor, to commence in possession after the determination of some particular estate granted out by him.* The residue of an estate which always continues in him who made a particular grant.* IN SEVERALTY are those held by single persons in their own right only, without any other person being joined or connected with them in point of interest during their estate." AT SUFFERANCE are interests of tenants who have come rightfully into possession of lands by permission of the owner, and continue to occupy the same after the period for which he is entitled to hold by such permission. T This estate is uncommon, but is recognized as an estate so far, that the landlord must enter before he can bring ejectment against the ten- ant.* If the tenant has personally left the house, the landlord may break the doors. 1 And generally, the landlord may use force to regain possession, subject only to indictment if any injury is committed against the public peace.' See DETAINER, above. AT WILL are those by which the tenant has made entry under a lease to hold during the joint wills of the parties to the same. 1 Such estates are rare, being generally con- strued into estates for years, or from year to year by the decisions of the courts, or by statute.' FOR YEARS are interests in lands by virtue of a contract for the possession of them for a definite and limited period of time b to suit the contracting parties. The length of time for which the estate is to endure is of no importance in ascertaining its character, unless otherwise declared by statute.' EVICTION is total where a possessor is wholly deprived of his rights in the premises. It is partial where the possessor is deprived of only a portion of them, as if a third person comes in and ejects him from the possession of half his land, or establishes a right to some easement over it by a title prior to that under which he holds. With respect to the premises leased, an eviction consists in taking from -a tenant some part of the premises of which he was in possession, not in refusing to put him in possession of something which by the agree- ment with his landlord he should have en Cruise Dig. 877 ; Co. Litt. 22 i, 142 6. n-2 Bl. Comm. 179; i Greenl. Cruise Dig. 829; i Washb. R. Prop. 112. v-i Washb. R. Prop. -3,0-2 ; 2 Bl. Comm. 150; Co. Litt. 57 b; Smith Landl. & T. 217; Crabb R. Prop. { 1543. W-3 T. R. 292 ; 8 Id. 403 ; i M. & G. 644. x-i Bingh. 58; 17 Pick. 263, 266. y-j T. R. 431 ; i Cush. 482 ; 7 Met. (Mass.) 147 ; 14 M. & W. 437 ; 4 Johns. 150 ; i W. & S. 90; i Washb. R. Prop. 390, 396; 7 M. & G. 316; 13 Johns. 235 ; 13 Pick. 36. z-Co. Litt. 55, a. ; Tudor L. Cas. 10 ; Smith Landl. & T. :6 ; 2 Sharsw. Bl. Comm. 145 : 4 Kent Comm. no ; i Washb. R. Prop. 370. a-i Washb. R. Prop. 370; 4 Kent Comm. 115: Tudor L. Cas. 14 ; 4 Rawle, 123 : i T. R. 159. !>- Sharsw. Bl. Comm. 140; 2 Crabb R. Prop. $ 1267; Bac. Abr. Leases ; Wms. R. Prop. 195 ; j Washb. R. Pro^. 298 ; i Platt Leases, 47. 0-15 Mass. 439 ; i N. H. 350; 13 S. & R. 60 ; 4 Kent Cemm. 93. 6i6 REAL PROPERTY. joyed,* and in order to effect a suspension of rent there must be something equivalent to an expulsion from the premises, and not a mere trespass or disturbance in the enjoyment of them.* It is not necessary, however, in order to produce the eviction of a tenant, that there should be actual physical expulsion, for a land- lord may do many acts tending to diminish the enjoyment of the premises, short of an expul- sion, which will amount to an eviction in law ; as, if he erects a nuisance so near the leased premises as to deprive the tenant of the use of them, or if he otherwise intentionally disturbs the tenant's enjoyment to such an extent as to injure his business or destroy the comfort of himself and family, it will amount to an eviction/ FEE SIMPLE. See CONVEYANCES, ante. TAIL. See CONVEYANCES, ante. FENCES are, in general, regulated by local laws. Generally, fences or boundaries are to be built on the line ; the expense, when made according to law, is borne equally between the parties. A partition fence is presumed to be the common property of both owners of the land.* When built upon the land of one of them it is his ; but if it were built equally upon the land of both, at their joint expense, each would be the owner in severally of the part standing on his own land. h See WASTE, below. FIELDS. See WASTE, below. FIREWOOD. See WASTE, below. FISH-POND. See WASTE, below. FIXTURES are personal chattels affixed to real estate, which may be severed and removed by the party who has affixed them, or by his personal representative, against the will of the owner of the freehold. Questions frequently arise as to whether given appendages to a house or land are to be considered part of the real estate, or whether they are to be treated as personal property. The latter are movable, the former are not. The annexation may be actual or constructive. I. By actual annexation is understood every mode by which a chattel can be joined or united to the freehold. The article must not be merely laid upon the ground ; it must be fastened, fixed, or set into the land, or into some such erection as is un- questionably a part of the realty ; otherwise it is in no sense a fixture. 1 Locks, iron stoves set in brick work, posts, and window blinds, afford examples of actual annexation.^ Some things, however, have been held to be parcel of the realty which are not annexed or fastened to it ; for example, deeds or chattels which relate to the title of the inheritance, and go to the heir.* But loose, movable machinery, used in prose- cuting any business, to which the freehold is d-i2 Wend. 529. e-4 Wend. 505 ; 5 Sandf. 542 : T. Jones, 148 ; i Yerg. 379. f-8 Conn. 727 ; 2 Ired. 350 ; i Sandf. 260 ; 4 N. Y. 217. |f-8 B. & C. 257, 259, n. ; 20111.334. h-5 Taunt. 20; 2 Greenl. Ev. 617; see 9 Washb. R. Prop. 79, 80. 1-B. N. P. 34 : 3 East. 38 ; 5 Id. 215 : i Taunt. 21 ^ Poth. Traite des. Ch_. g i. J- Se 5 Hayw. 109 : 20 Johns. 29 ; i Harr. & J. 2 M'Cord, JS3 ; 9 Conn. 63 ; i Miss. 508, 620 ; 7 Mass. 433; '5 id- 159; 4 Ala. 314. It-Shep. Touchst. 469. 1-n N. H 705 ; see, however, 2 W. & S. 116, 390. m- ghep. Touenst- 90 ; Poth. TraUe des. Ch. j} i. 11-3 adapted, cannot be considered part of the real estate, nor in any way appurtenant to it; 1 so deer in a park, fish in a pond, and doves in a dove-house, go to the heir, and not to the executor, being, like keys and heirlooms, con- structively annexed to the inheritance. The general rule is, that fixtures once an- nexed to the freehold become a part of the realty. But to this rule there are exceptions ; as, i. Where there is a manifest intention to use the fixture in some employment distinct from that of the occupant of the real estate;' 2. Where it has been annexed merely for the purpose of carrying on a trade ; n for the fact that it was put up for such a purpose indicates an intention that the thing should not become a part of the freehold. But if there is a clear intention that the thing should be permanently annexed to the realty, its being used for pur- poses of trade would not, perhaps, bring the case within one of the exceptions.? Where the question arises between an execu- tor and the heir-at-law, the rule is strict that whatever belongs to the estate to which the fixture appertains will go to the heir ; but if the ancestor manifested an intention (which may be inferred from circumstances) that the things affixed should be considered personalty, they will be so (treated, and will go to the executor.' As between a vendor and vendee the same strictness applies as between an executor and an heir-at-law ; for all fixtures which belong to the premises at the time of the sale, or which have been erected by the vendor, whether for purposes of trade or manufacture, or not, as potash kettles for manufacturing ashes, and the like, pass to the vendee of the land, unless they have been expressly reserved by the terms of the contract.' The same rule \pplies as between mortgagor and mortgagee. As between devisee and executor, things permanently annexed to the realty at the time of the testator's death pass to the devisee his right to fixtures being similar to that of a vendee.* As between a landlord and his tenant the strictness of the ancient rule has been much relaxed. The rule is understood to be that a tenant, whether for life, for years, or at will, may sever at any time before the expiration of his tenancy, and carry away all such fixtures of a chattel nature as he has himself erected upon the demised premises for the purposes of ornament, domestic convenience, or to carry on trade, provided, always, that the removal can he effected without material injury to the freehold." East. 88; 4 Watts. 330. o-See H. BI. 260. p-i H. Bl. 260; and see title LANDLORD AND TENANT, ant. 8 -See Bac. Abr. Exr. Admr. ; 2 Str. 1141 ; i P. Wms. h. 94; B. N. P. 34. r-6 Cow. 663; 20 Johns. 29. - 15 Mass. 159 ; i Atk. Ch. 477 ; 16 Vt. 124; 12 N. H. 205. t-2 Barn. & C.. 80. n-ift Day, 322 ; 16 Moss 449; 4 Pick. 310; 2 Dev. 376; i Bail. 541 ; 7 Barb. 263 ; i Denio, 92; 19 N. Y. 234. And see for adjudica- tions to this effect upon specific articles, Taylor Landl. & Ten. \ 544-560, and post, tit}* LANPLORD AND TEH- ANT, REAL PROPERTY. 617 A tenant for years may remove fixtures at uny time before he gives up the possession of the premises, although it may be after his term has expired, and he is holding over; T but ten- ants for life, or at will, having uncertain in- terests in the land, have, after the determina- tion of their estates, not occasioned by their own fault, a reasonable time within which to remove their fixtures." If a tenant quits possession of land without removing such fixtures as he is entitled to, the property in them immediately vests in the land- lord; and though they are subsequently severed, the tenant's right to them does not revive. If, therefore, a tenant desires to have any such things upon the premises after the expiration of his term, for the purpose of valuing them to an incoming tenant, or the like, he should take care to get the landlord's consent, otherwise he will lose his property in them entirely. 1 The rights of parties with respect to particular ar- ticles are sometimes regulated by local customs, especially as between outgoing and incoming tenants; and in cases of this kind it becomes a proper criterion by which to determine the char- acter of the article, and whether it is a fixture or not. See LANDLORD AND TENANT; GROW- ING CROPS; EMBLEMENTS; FIXTURES, ETC. FLOORS. See WASTE, below. FREEHOLD. See ESTATES OF FREEHOLD, al>ove. FRUIT TREES. See WASTE, below. FUELLING MILL. See WASTE, below. FURNACES. See WASTE, below. GARDENS or grounds, set apart for flowers and plants, are parcels of the houses to which they belong, and pass with them.' GATES. See WASTE, below. GRANT. See CONVEYANCES, ante. GRAVEL. See WASTE, below. GRIST MILL. See WASTE, below. GROUND-RENT is a rent paid for the privilege f building on another man's land. It is a freehold estate created by deed, and perpetual by the terms of its creation ; and no mere lapse of time without demand raises, at common law, a presumption that the estate has been released.* See CONVEYANCES, ante. GROWING CROPS. See LANDLORD AND TENANT, ante. HEDGES. See WASTE, below. HEIRLOOMS include charters, deeds, and ther evidences of the title of land, together :with the box or chest in which they are con- T-i B. & C. 79 ; 2 East. 88. w-3 Atk. Ch. 13. x-i P. & Ad. 394 ; 2 M. & W. 450. y-z Co. 32 ; Plowd. 171; Co. Litt. 5 &, $6 a, t> : see F. Moore, 24; Bac. Abr. Grants, i. z-i Whart. 229. a-Co. Litt. 3 , 185 t; 7 Co. 17^; Cro. Eliz. ^72 ; Broke Abr. Charters pi. 13 ; 2 Bl. Comm. 28 ; 14 Viner Abr. 291. l>-6Mod. 714; Woodfall Landl. & T. 178. c-Cro. Eliz. 89; 3 Leon, 214; i Plowd. 171; 2 Wms. Saund. 401, n. 2 ; 4 Penn. St. 93. d-i P. Wms. 603 ; Cro. Jac. 526 ; 2 Co. 32 ; Co. Litt. 5 d, 36 a,b ; 2 Wms. Saund. 401, n. 2. e-8 Wheat, i ; i Dana, 481 : 3 Ohio St. 463 ; 4 McLean C. C. 489 ; 5 Johns. 272 : 2 Paine C. C. 74. f-3 Atk. Ch. 134 ; 3 Sneed. 228 : i Yerg. 360; 24 Vt. 560; 2 Johns. Cas. 441. gT-See a Greenl. Ev. \ 242. li-2 Mass. 97; 3 N. . 335 : 10 Conn. 431 ; 12 La. An. 541 ; 27 Vt. 739. i- 15 Pick, 68 ; 7 Gray, 83 ; 5 Conn. 497. J-4 Moss. 630 ; tained, the keys of a house, and the fish in a fish pond.* HOUSES, if divided into several apartments having no communication with each other, are considered as so many distinct and separate houses. 5 In a conveyance or lease of a house, the enclosed space immediately surrounding it and contained within some enclosure, and the garden, will pass, even without the words "with the appurtenances" being added. In a conveyance or lease of a house with the ap- purtenances, no more will pass, although other lands have been occupied with the house. d See WASTE, below. IMPROVEMENTS, as between the rightful owner and an occupant who in good faith has put them on, belong to the rightful owner of the land, without compensation for the increased value. This is the common law, 8 though the rule is otherwise in equity/ and by the statutes of some States. INCUMBRANCES are any rights, or interests in land, which may be held by third persons, which diminishes the value of, but not the right to pass such land.s Of these are public high- ways; 11 a private right of way; 1 a claim of dower,* though inchoate only ; k an outstanding mortgage, 1 other than one which the covenantee is bound to pay; m a liability to tax laws." But does not include a condition on which an estate is held. The vendor of real estate is bound to disclose incumbrances, and to deliver to the purchaser the instruments by which they were created or on which the defects arise; and the neglect of this is to be considered fraud.? The interest on incumbrances is to be kept down by the tenant for life,-Sugden Vend. 6; i Vcs. Sr. 96. - kEAL PROPERTY. trees, or those planted for shelter ; or to ex- clude objects from sight. T A tenant of a dove- house, warren, park, fish-pond, or the like, would also be guilty of waste, if he took away .animals therefrom to such an extent as not to leave as large a stock of them as he found when he came in. w Windfalls are the prop- erty of the landlord ; for whatever is severed by inevitable events, as, by a tempest, or by a trespasser, and by wrong, belongs to him who has the inheritance. 1 In general, a tenant is answerable for waste although it is committed by a stranger, for he is the custodian of the property, and must take his remedy over.' But he is not liable when the damage is caused by lightning, tempest, or a public enemy.* He is also liable at common law for all damages done by fire, accidental or otherwise, upon the premises, unless this be excepted in the lease, though accidental fires will not, through statutory enactment through- out the States, render him liable. The pro- tection afforded by these statutes extends only to a case of accidental fire that is, to one which cannot be traced to any particular or wilful cause and stands opposed to the negli- gence of either servants or masters; and there- fore an action still lies against a person upon whose premises a fire commences through the negligence of himself or his servants, and is productive of injury to his neighbor.* The redress for injuries of the foregoing character are either preventive or corrective, which may forfeit the tenant's further occu- pancy of the premises, as well as subject him to exemplary damages for all injury done. WATER. A pool of water, or a stream or water-course, is considered as part of the land ; hence a pool of twenty acres would pass by the grant of twenty acres of land without mentioning the water. b A mere grant of water passes only a fishery ; but the owner of land over which water flows may grant the land, re- serving the use of all the water to himself, or may grant the use of all or a portion of the water, reserving the fee of the land to himself.* Water-courses in a legal sense are compre- hended under the general name of land ; so that a grant of land conveys to the grantee not only fields, meadows, and the like, but also all the rivers and streams which naturally pass over the surface of the land. 8 Those who own H-6Ves. Ch. 419. v-i6 Ves. Ch. 375; /Ired. F.q. 197; 6 Barb. 9. w-Co. Litt. 53 ; 2 Leon, 222. X-3?. Wins. 268; ii Co. 81 ; Bac. Abr. Waste, D. 2. y-a Dougl. 745; i Taunt. 198; i Denio, 104. z-Co. 20 Inst. 303; F. Moore, 69; 5 Co. 21; Shepp. Touchst. 173: 4 Kent Comm. 77. a-i Denio, 207 ; 8 Johns. 421 ; a Harring. 443 ; 21 Pick. 378; i Halst. 127; 6 Taunt. 44; Tayl. Landl. & T. 196. b-2 Bl. Comm. 18; 2 N. H. 255, 391 ; i Wend. 255, 391 ; 5 Cow. 216; 5 Conn. 497; 14 Mass. 49 ; 8 Mete. (iMass.) 466 ; 2 Harr. & J. 195 ; 8 Penn. St. 13. c-Co. Litt. t,b; 5 Cow. 216. d-26 Vt. 64; 3 Hill N.Y. 418; 22 Pick. 333; 6 Met. (Mass.) 131; 18 F.ng. L. & Eq. 164. e-Co. Litt 4; a Brownl. 142 : a N. H. 255 ; 5 Wend. 423. f-Angell Water Courses. 3; 3 Kent Comm. 354; 4 Mason C. C. 397. g-Cro. Jac. 556 ; 9 N. H. 502; 24 Id. 364 ; o Watts, 119; 20 Penn 81.85; 3 Rawle, 84 ; 4 Eng. L. & Eq. 6j; i B. & Aid. 874; 3 Green, 116; 4 111. 453; 38 Me. land bounding upon a water-course .are gener- ally known as riparian proprietors/ By the rules of the common law all proprietors of lands have precisely the same rights to waters flowing through their domains, and one can never be permitted so to use the stream as to injure or annoy those situated on the course of it, either above or below him. They have no property in the water itself, but a simple right to use it; accordingly while each successive riparian proprietor is entitled to the reasonable use of the water for the supply of his natural wants, and for the operation of mills and ma- chinery, he has no right to flow the water back upon the proprietor above -f nor to discharge it so as to flood the proprietor below ; h nor to di- vert the water, 1 even for the purpose of irriga- tion, unless it be returned without essential diminution ;J nor to obstruct or detain it, ex- cept for some reasonable purpose, such as to obtain a head of water for a mill, and to be again discharged, so as to allow all on the same stream a fair participation ; k nor to cor- rupt the quality of the water by unwholesome or discoloring impurities. 1 But while such are the rights of the riparian proprietors when un- affected by contract, these rights are subject to endless modifications on the part of those en- titled by their enjoyment, either by grant, or by reservation," or by a license, or by agree- ment,? or by twenty years adverse enjoyment, from which a grant or contract will be im- plied,lig. 781. 8-i Rawle, 391 ; 3 Salk. 298, pt. 2; Co. Litt. 212, a. 273. If not under seal it is necessary to show a consideration therefor. 3 P. R. 413; i Barr. 450. t-is Johns. 479 ; i Pick. 332 ; 2 E. D. Smith, 58. U-7 C. B. 21. v-2 Harr. 78. w-o. Wend. ^32. x-14 Ala. 500. y-3 Johns. 185. z-i 111. 45. a-Russ. & R. Cr. Cas. 227; yC. & R. 549. fo-3 Dowl. & R. 332 ; 2 B. & Aid. 501, n: n Lond. Jur. 806 ; i East. 460; i Speers, 53. c-i Pet. C. C. 182 ; i Rich. 32; I Hairing. securities he was to collect and account for has been held presumptive evidence of the genuineness and justness of the securities.* And when a general receipt is given by an attorney for an evidence of debt then due, it will be presumed he received it in his capacity as attorney for collection ; and it is incumbent on him to show he received it for some other purpose if he would avoid an action for neglect in not collecting.' A receipt is executed by the person to whom the delivery or payment is made, and may be used as evidence against him on the general principle which allows the admission or declaration of a party to be given in evidence against himself. As an instrument of evidence, the receipt of one person is, in general, inoperative against another, although often useful as a voucher in the private settlement of accounts. And re- ceipts of public officers are sometimes admis- sible per se.* It is essential to a receipt that it acknowledge the payment or delivery referred to. a Also, the receipt must, from the nature of the case, be in writing, and must be deliv- ered to the debtor; for a memorandum of pay- ment made by the creditor in his own books is no receipt. 1 " The mere acknowledgment of payment made is not treated in law as binding or con- clusive in any high degree. So far as a simple acknowledgment of payment on delivery iemand. A. B., plaintiff. ") vs. > (Name of court.) C. D., defendant.) Place , Date . . Received of C. C., constable, of , of said county, the following property, by him levied en in the above entitled action, to wit : (here describe the property specifically, so it can be identified^, prom- ising to redeliver such property to said officer on demand. B. E. Receipt Rent. $ Place , Date . Received of A. B. the sum of dollars, ons month's rent, due this day, for my (or the dwelling- house of E. F.) on lot , in street, in , now occupied by A. B. C. D. Recital. See CONVEYANCES. Recognition. See AGENCY. Refreshing; Memory. See EVIDENCE. Refusal. See ACTS. Registers. See EVIDENCE. RELEASES. See CONTRACTS ; RECEIPTS. A RELEASE is the giving up or abandoning & claim or right to the person against whom the claim exists, or the right is to be exercised or enforced. An express release is one directly made in terms by deed or other suitable means. An implied release is one which arises from acts of the creditor or owner, without any ex* press agreement.' A release by operation of law is one, which though not expressly made, the law presumes in consequence of some act of the releasor; for instance, when one of several joint obligors is expressly released, all others are also re- leased by operation of law,* unless otherwise provided by statute. Releases may either give up, discharge, or abandon a right of action, or convey a man's interest or right to another who has possession g-3 Salk. 298; Hab. 10, 66; Mod. 380; 7 Johns. 207. 626 RELEASE SALES. of it or some estate in the same. h In the former class, a mere right is surrendered; in the other, not only a right is given up, but an interest in the estate is conveyed and becomes vested in the releasee. In general, the words of a release will be re- strained by the particular occasion of giving it. 1 In releasing an interest in real estate the words generally used in the conveyance are : " Remised, released, and forever quit-claimed. ") See CONVEYANCES ; QUIT-CLAIM DEEDS ; ante. RELEASE FOK MS. Release Of all Claims, Demands, etc. I, A. B. , of , in the county of , and State of . for and in consideration of the sum of dollars, the receipt of which is hereby acknowl- edged, do hereby release and forever discharge C. D. (of , in, etc.), his heirs, executors, and administrators, of and from all actions, causes of action, suits, controversies, claims, and de- mands whatsoever, for and by reason of any matter, cause, or thing, from the beginning of tl>e world to this day of . In witness whereof, I have hereunto set my hand the day and year last above written. Executed in presence of A. B. Release M u tnal of all Demands, etc. This release, made this day of , be- tween A. B. (of ), of the first part, and C. D. (>f -), of the second part, witnesseth : That the said parties have this day cancelled and delivered up to each other certain covenants, bonds, notes, and other written agreements, upon which the one party claimed to have de- mands upon the other party. And the said claims and instruments, so cancelled and delivered up, being supposed and intended to be all the claims and evidence of claims by either of said parties upon the other. And in consideration thereof, each of said parties, the said A. B. and C. D., does hereby, for himself and his legal representa- tives, release and forever discharge the other of and from all actions, causes of action, suits, con- troversies, claims, and demands whatsoever, so that neither of them shall have any claim on the other, directly or indirectly, on any agreement, contract, or supposed liability, or thing under- taken, done, r omitted to be done, from the be- ginning of the world to the day of . In witness whereof, the said parties have here- unto set their hands the day and year last above written. A. B. Executed in presence of C. D. Rent. See LANDLORD AND TENANT. Repairs. See LANDLORD AND TENANT. " Land- lord." Repeal. See LAW, "Statute LAW." Reports. See AUTHORITIES. Reputation. See EVIDENCE. Re-sale. See SALES. Rescue. See CRIMINAL LAW, "Arrest," etc. Reservation. See CONTRACTS. Residence. See DOMICIL. Retrospective. See LAW. Revocation. See AUTHORITY; AGENCT; CON- TRACTS. ' Robbery. See CRIMINAL LAW. Rudeness. See CRIMINAL LAW. Rumor. See EVIDENCE. Rules. See PATENTS. h-Shep. Touchst. 320; Litt. 444; Nelson Abr. : Bac. Abr. ; Vin. Abr. ; Rolle Abr. i-i Lev. 235; 3 Id. 273 ; i Show. 151; 2 Id. 47: 2 Mod. 108, n; aid. 277; T. Raym. 393; Palm. 218. Littleton says, a release of all demands is the best and strongest release, $ 508. Coke says, claims is a stronger word, Co. Litt. 291, b. In the following cases a construction has been given to the terms quoted. A release of " all actions, suits, and de- mands," 3 Mod. 277: "all actions, debts, duties, and de- mands," Id. i, 64: 8 Co. 150, b; 2 Saund. 6, a ; all de- mands, 5 Co. 70, <*,- 2 Mod. 281 : 3 Id. 185, 278: 12 Id. 4*5; i Lev. 99; Salk. 578; Roile, 20; a Conn. 120. 8AL.ES. See ASSIGNMENT ; COICTRACTS; CONV" ANCES; PERSONAL PROPERTY; REAL PROPERTY; ETC. A SALE is an agreement by which one of two contracting parlies, called the seller, gives a thing and passes the title to it, in exchange for a certain price in current money, to the other party, who is called the buyer or pur- chaser, who, on his part, agrees to pay such price.' This contract differs from a barter or exchange in this : That in the latter, the price or consideration, instead of being paid in money, is paid in goods or merchandise suscep- tible of a valuation. 11 It differs from accord and satisfaction, because in that contract the thing is given for the purpose of quieting a claim, and not for a price. An onerous gift, when the burden it imposes is the payment of a sum of money, is, when accepted, in the nature of a sale. When partition is made be- tween two or more joint owners of a chattel, it would seem the contract is in the nature of a barter." An absolute sale is one made and completed without any condition whatever. A conditional sale is one which depends for its validity upon the fulfilment of some condition." 1 A forced sale is one made without the consent of the owner of the property, by some officer appointed by law, as by a marshal, constable, or sheriff, in obedience to a mandate of a com- petent tribunal. This sale has the effect to transfer all the rights the owner had in the property, but it does not, like a voluntary sale of personal property, guarantee a title to the thing sold ; it merely transfers the rights of the person as whose property it has been seized. This kind of sale is sometimes called a judicial sale. A voluntary sale is one made freely, without constraint by the owner of the thing sold. This is the common case of sales, and to this class the general rules of the law of sales apply. A private sale is one made volun- tarily, and not by auction. A public tale is one made at auction to the highest bidder. Auction sales are sometimes voluntary, as, when the owner chooses to sell his goods in this way, and then as between the seller and buyer the usual rules relating to sales apply ; or they are involuntary or forced when the same rules do not apply. A sale of a chattel is an exchange thereof for money. 6 And proof of an exchange will not support an averment of a sale of goods. r For a sale to be valid in law, there must be parties, a consideration, and a thing to be sold. All persons may be parties to a sale, unless they labor under the disabilities and restraints a!- ready mentioned. Consideration also has been> considered. The existence of the thing to be "All actions, quarrels, trespasses," Dyer, 2171, PI. 2; Cro. Jac. 487. "All errors and all actions, suits and writs of error whatsoever," T. Raym. 399. "All suits," 8 Co. 150. "Covenants," 5 Co. 70, f>. J-Litt. 445. a-Pardessvts, Dr. Com. n; 6 Noy. Max. Ch. 42; Shep. Toust. 244 ; 2 Kent Comm. 363 ; Poth. Vente. n. i. !>-} Salk. 157; 12 N. H. 390: 10 Vt. 457. C-See u Pick. 311. d-See 4 Wash. C C. 588 ; 10 Pick. 522 ; 18 Johns. 141; 8Vt. 154; 2 Rawle. 326; Coxe, 292; 2 A. K. Marsh, 430. e-An exchange is not a sa.lt, 3 Salk. 157; 12 N. H. 309. f-io Vt. 457. SALES. 627 sold, or the subject-matter of the contract, is essential to the validity of the contract.* If a horse be dead before the sale, or merchandise be destroyed by fire, both parties being ignorant thereof, the sale is wholly void. If a substan- tial part of the thing sold be non-existent, the buyer has his option to rescind the sale, or take the remainder with a reasonable abatement of the price. h A mere contingent possibility, not coupled with an interest, is no subject of sale ; as, all the wool one shall ever have. 1 But a valid sale may be made of the wine that a vine- yard is expected to produce ; or the grain that a field is expected to grow ; or the milk that a cow may yield during the coming year; or the future young born of a female animal then owned by the vendor ;J or the wool that shall hereafter grow upon his sheep. If rights are vested, or possibilities are distinctly connected with interest or property, they may be sold. k A sale maybe good in part, and -void as to the residue ; good as between the panics, but void as to creditors; good as to some of the credit- ors, but void as to others. 1 There is a presumption that every sale is to be consumr/iated at once ; that the chattel is to be delivered, and the price paid without delay. If, therefore, nothing appears but an offer and an acceptance, and the vendee goes his way without making payment, it is a breach of the contract, and the vendor is not bound by the sale. But if there was a delivery of the chattel, or the receipt of earnest, or of part payment, either of these is evidence of an understanding that something should remain to be performed in future; and the legal presumption is re- butted. So, where the terms of the contract expressly postpone delivery, or payment, or both, to a future day, here also the sale is valid. No one can give a good title who has no good title. If a mere finder, and still more if a thief, sells what he has found or stolen to A., and A. buys in good faith, and so sells to B., and B. to C., and C. to D., etc., the original owner may reclaim his property wherever it may be, and take it without any payment to the holder, any more than if that holder were the thief himself. If the owner has been de- ceived and defrauded into parting with his property, so that he could claim it from the taker, yet if he voluntarily parted with the property, he cannot reclaim it from one who in good faith buys it from the fraudulent party ; not even if the fraud amounted to a felony. No one can be made to buy of another without his own assent. Thus, if A. sends an order to B. for goods, and C. sends the goods, he cannot gr-i Leon, 42 ; Hob. 132 ; 4 E. L. & E. 471 : S. C. 7 F.xch. 208; 5 M.&Sel. 228. l-2 Kent Comm. 469. i- Hob. 132 ; i Hare, 556. j-s Yerg. 195 ; 26 E. L. & E. 49; ; F,.C. ioExch.298. U- 3 T. R. 88; sMerriv. 667. 1-u Pick. 76. m-14 Martin (La.) 17; 5 Ohio, 202 ; 2 Harr. ft Johns. 308 ; SMass. 518 ; i Johns. 479 ; i Yeates,478; 5 S. & R. 130 ; i Dana, 195 ; 10 Peters. 161 ; 22 Wend. 185. n-i3 Barb. 372 ; 3 Duer. 373 : 6 Gratt. 268 ; 13 111. 610 ; 38 Me. 561 ; 3 Duer, 341 : i Seld. 41 : 34 E. L. 6 E. 607 ; S. C. ii Exch. 577. 0-2 Hurlstone & Norm. Exch. 564. p-Story Sales (ad Ed.) \ 348 ; i Pet. C. C. sue for the price, if A. repudiates the sale, al- though C. had bought B.'s business. CAVEAT EMPTOR. In sales of personal property, the purchaser buys at his own risk, unless the seller gives an express warranty, or unless the law implies a warranty from the circumstances of the case, or the nature of the thing sold, or unless the seller be guilty of fraudulent misrepresentation, or concealment in respect to a material induce- ment to the sale.P CONDITIONAL SALES. IN GENERAL. In every sale, unless other- wise expressed, there is an implied condition that the price shall be paid before the buyer has a right to possession; this is a condition precedent. " If I sell my horse for money, I may keep him until I am paid."<> But, al- though the vendee may not have the right of possession in the article bought until the price is paid, yet the right of property passes by the bargain ; and if the property is lost while yet in the possession of the vendor, without his fault, the loss will fall on the purchaser. r But in an action for non-del i'/ery the buyer need only aver that he was ready and willing to re- ceive and pay for them, and that the seller re- fused to *deliver them, without averring an actual tender. 8 Generally, wherever in a con- tract for sale it is stated that some precise act is to be done by either party, this may amount to a condition, though not so expressed As where in a contract for a sale of goods, the words were, "to be delivered on or before" a certain day, this is a condition precedent, and if they were not delivered on or before that day,* (and the delivery must have been made at a reasonable time on that day, or the vendee is not bound), the purchaser is not bound to take the goods. So, if the goods are to be delivered on " request," the buyer must allege and prove a request, this being a condition precedent to his acquiring a complete right." But if the seller has incapacitated himself from delivering, by reselling or otherwise, no request is necessary. w In sales called " contracts of sale or return, 1 ' the property in the goods passes to the pur- chaser, subject to an option in him to return them in a fixed time, or a reasonable time ; and if he fail to exercise this option in so returning them, the sale becomes absolute, and the price of the goods may be recovered in an action for goods "sold and delivered.* And what is a reasonable time within which a contract is to be performed, or an act to be done, is, in the absence of any contract between the parties, a question of law for the court, to be determined 301; 4 Johns. 421; 20 Id. 196; i Wend. 185; n Met. (Mass.) 559. q-Noy Max. p. 88 ; 7 East. 571 ; 8 Barb. 328. r-6 Dana, 49 : 24 Me. 366 ; 6 Rand. (Va.) 473. 8-2 B. & P. 447 ; i East. 203 ; 5 Johns. 179 : i Caines, 45 ; 2 Wms. Saund. 350 . (3). t-2 Man. & G. 395. u- Id. v-5 T. R. 409 ; 3 M. & W. 258. w-Yelv. (Met. s Ed.) 76 . ; 5 B. & Aid. 712 ; 14 Mass. 96. x- 3 E. L. & E. 311 S. C. ; 16 Q. B. 493 : 6 A. & E. 829 ; Peake'i Cas. 56: 16 Me. 17 ; 9 Pick. 441 ; 2 Fairf. 414; 7 Cush, 48$; a East. 1 1 6. SALES. by a view of all the circumstances of the parti- cular case.y In sales at auction there are generally condi- tions of sale; and where these are distinctly made known to the buyer, they are of course binding on him, and the auctioneer or the owner of the goods is bound on his part. 1 Any misstatement, made fraudulently, and capable of having any effect on the sale, will avoid it. Nor will the conditions of sale be binding against a purchaser, if so framed as to give the seller advantages which the buyer could not readily apprehend or understand without legal knowledge or advice; for the buyer is discharged from a purchase made under " catching conditions."* MORTGAGE OF PERSONAL PROPERTY. 1 * DELIVERY. While, as between the par- ties, the property passes by a sale without delivery, it is not valid, in general, as against a third party without notice, without delivery. For if the same thing be sold by the vendor to two parties, by conveyances equally valid, he who first gets possession will hold it. c In gen- eral where there is a completed sale, and no change of possession, this retention of posses- sion by the vendor is a badge of fraud, and will avoid the sale in favor of a partywho sub- sequently acquires title to the property in good faith, and without knowledge of the sale. d The delivery may be symbolical, or a part for the whole;* and a delivery of the key, the property being locked up, is so far a delivery of the goods that it will support an action of trespass against a subsequent purchaser, who gets pos- session of them. f Marking timber on a wharf, or goods in a warehouse, operates as a delivery; goods bought at a shop, weighed or measured, and separated, and left by the owner until called for, are sufficiently delivered. So se- lecting and marking sheep, then in possession of one who was requested by the vendee to retain possession of them for him, is a sufficient delivery.* But if goods are sent, even under a contract of sale, to be applied by the receiver to a particular purpose, to which purpose they were not and could not be applied, the sender does not lose his property in them by delivery, but may recover them back. h And if property be awarded to one by arbitrators, at a certain price, the tender of the price does not pass the property, unless the other party accept the price. 1 If no time be appointed for delivery, or for payment, the acts must be done within a rea- sonable time; and if neither party does any thing within that period, the contract is deemed dissolved.' If the goods are to be delivered y-2 Greenl. 240 ; 16 Me. 164 ; i Hawks. 41 : 3 Sumner, 530; 3 M. & W. 445; i Id. 545; 20 Me. 317. z-6 E. & B. 659. a-2 Jur. 1078; 4 Bing. N. C. 463 ; 3 A. & E. 355 ; 2 Jur. 29 ; 4 Camp. 140. fo-See ante, MORTGAGES, c-2 Kent Comm. 522 : 4 Binn. 858; 10 S. & R. 49 ; 3 Alk. 115. tl-Sec 16 Ohio, 509. e-2j Vt. 265; o Barb. 511 ; 19 Id. 416; n Cush. 282; 30 Me. 496. 1-2 Atk. 79. e-2 Vt. 374; 12 Cush. 27; Id. 31. li-i B. & C. 5 ; a Id. 422 ; 9 East. 12 ; x Id. 544; sT. R. 294; a W. Bl. 1154. i-is East, wo, J-i when requested, the purchaser may sue with- out proving a request, provided the seller has incapacitated himself from delivering them, as by a resale or the like, k but, in general, a re- quest must be made before the seller can b* sued for non-delivery. 1 And if the vendee, either by the express terms of the contract 01 from its nature, is to designate the manner or place of delivery, he must do this before he can maintain his action. m If a day be fixed either for delivery or payment, the seller has the whole of it; and if any one of several days, the seller has the whole cf all of them. If on a certain day, at a certain place, then it must be d;jne at a convenient time before sunset, be- cause the presence of the other party is neces- sary, and the law does not require him to be there through the whole twenty-four hours." The seller is to keep the thing sold until the time of delivery, with ordinary care, and is liable for the want of that care, or of good faith ; but if he does so keep it, he is not liable for its loss, unless it perish through a defect against which he has warranted. If the par- ties are distant from each other, the seller must follow the directions of the buyer as to the way of sending the thing sold to him, and then a loss in the transportation will fall on the buyer,' unless attributable to the negligence of the seller; if the seller disregards such orders, the loss in transportation falls on him, though it does not happen through his neglect. If the directions are general, as " by a carrier," with- out naming any one, usual and proper precau- tions must be taken, and will protect the seller. The vendor, in delivering goods to a carrier, must exercise due care and diligence, so as to provide the consignee with a remedy over against the carrier.i And it is a part of his duty to give such notice of the sending them by ship or otherwise as will enable the buyer to insure or take other precautions. r If the contract be to deliver the thing ordered at the residence or place of business of the buyer, the seller is liable, although such delivery becomes impossible, unless it becomes so through the act of the buyer. 8 If the seller refuse to deli- ver it at the time and place agreed on, and it perish afterwards without his fault, he is liable for it. But if he be ready, and the vendor wrongfully refuse or neglect to receive it, the seller is not liable, unless the thing perishes through his gross and wanton negligence. And if the vendee unreasonably neglect or refuse to comply with conditions precedent to delivery, or to receive the goods on delivery, the seller may, after due delay and proper precautions, Salk. 113 ; 13 M. & W. 27; 23 Vt. 114. k-to East. 359; 5 B. & Aid. 712. 1-s T. R. 409; 3 M. & W. 254; i Taylor, 149 ; 3 Price, 68. m-i Duer, 277; 14 Q. B 728. n-2 Man. & G. 395. o-i Busb. L. 253. p-Cowp. 294; 6 Foster, 415; i Gray, 536- 6 Port. (Ala.) 138; 3 P. Wms. 186; 3 B. & P. 584 ; 5 Price, 630 ; Dan. & L. 6; 28 E. L. & E. 586 ; S. C. 10 Exch. 342. q-3 Camp. 414 ; 14 East. 475 ; i Bing. N. C. 67? : 8 T. R. 330. r-3 Camp. 129; Brown Sales 2 526; 2 Kent Comm. 500; i T. R. 189. S-2 Camp. 56 n; 10 East. 530; 5 C. t P. i8a; Pet. C. C. 85; Id. sai. SALES. 629 resell them, and hold the buyer responsible for any deficit in the price.' It is common and generally advisable to sell them at auction ; but this is not necessary." If the seller sell on credit, the goods are to be delivered without payment; but if the buyer becomes insolvent before the time of delivery, the seller may de- mand security, and refuse to deliver the goods without it. T If no place of delivery be spe- cially expressed in the contract, the store, shop, farm or warehouse where the article is sold, made, grown, or deposited, is in general the place of delivery.* If, however, a particular pJace be appointed by the contract, the goods must be delivered there before an action will lie for their price. 1 If expressly deliverable to the vendee, but no place is named, it may be delivered to him where he is, or at his house, or place of business. Except so far as this option of the seller is controlled by the nature of the article. For if the purchaser brought a load of cotton to be worked in his mill, it can- not, under an agreement of delivery, be deliv- ered at his distant dwelling-house, nor should a load of hay for his stable, or cooking- range for his kitchen, be delivered at his store on the wharf. The vendee is bound to receive and pay for the thing sold at the time and place expressed or implied in the contract of sale, and to pay all reasonable charges for keeping it after sale and before delivery.? And if he refuse so to take and pay for the goods sold, he will be liable to an action for the price, or in a special action for damages, unless he can show inca- pacity to contract, or sufficient error, duress, or fraud. EFFECT. Upon a completed sale the prop- erty in the thing sold passes to the purchaser. 8 If it be sold for cash and the price be not paid, or if it be sold on a credit, but by the terms of the bargain is to remain in the hands of the vendor, the vendor has a lien on it for the price ; a and only payment or tender gives the vendee a right to possession. And if it be sold on credit, and the buyer by the terms of the bargain has the right of immediate possession without payment, but the thing sold actually remains in the possession of the seller until the credit has expired, and the price is still unpaid, the seller then has a lien for the price. b If it be sold on credit, and there is no agreement in respect to the delivery or possession of the goods, the purchaser at once has a complete right not only of property but of possession, 8 t-4Bing.722; 4Esp.25i; sS.&R.ig; 5 Johns. 395. H-i Saiul. 279 ; 4 Barb. 564. v-5 T. R. 215; 4 B. & C. 948 ; 6 East. 614 ; i H. LI. 357 : 3 T. R. 464. w-z Kent Comm. 505 ; sCowen, 516; 4\Vend.38o; 3W.&S.295. X-ig Me. 147; 20 Id. 325. y-2oVt. 21. Z-5B.&C.862; i Nev. & M. 202; Bell's Comm. 166; 7 East. 558; Com. Dig. Agreement, B. 3; 6 B. & C. 362 ; q Foster, 121 ; 2 Moody & R. 566: i Salk. 113. a-4 B. & .948; 8 Barb. 328; 13 Penn. St. 146; 5 B. & Ad. 313; 4 Camp. 237; 2 M. & Sel. 397; i Salk. 113; i Md. 37: i Penn. St. 359; 14 B. Mon. 413. b-Dan. & L. 193; 21 Cal. 178; Id. 227. C-32 Me. 191; t Swanst. zoo; 2 Comst. 293; n 111. 558; 15 Id. 347. (1-6 B. & C. 362; 6 Dana, 48; 13 Pick. 183; 4 Law Rep. 276; 7 Dana, Ct. e-s B. & C. 857; 9 H. Bl. 504; 4 B. & P. subject only to defeasance under the law of stoppage in transitu. If the property passes, though not the right of possession, and the thing sold perish, the loss falls on the pur- chaser. 4 The vendor's lien is destroyed by a delivery of the goods, or by a delivery of a part, without an intention to separate it from the rest, but with an intention thereby to give pos- session of the whole. Mere delivery of apart will not, however, divest the vendor of his lien, as to the whole, if anything remains to be done by the vendor to the part undelivered.* If sold for cash, and the money be not paid within a reasonable time, the vendor may treat the sale as null.' The property does not pass absolutely unless the sale be completed ; and it is not completed until the happening of any event expressly pro- vided for, or so long as anything remains to be done to the thing sold, to put it into a condition for sale, or to identify it, or discriminate it from other things. * Nor is the sale completed while anything remains to be done to determine its quantity, if the price depends on this ; unless this is to be done by the buyer alone. h But where the thing to be done by the vendor is but trifling, or is but a mathematical computation, this rule will not apply. 1 If the parties in- tended that the sale should be complete before the article sold is weighed or measured, the property will pass before this is done.J And even if earnest, or a part of the price be paid, the sale is not complete under these circum- stances, and if it finally fail, the money paid may be recovered back. k PARTIES. As a general rule, all persons sui juris, may be either buyers or sellers. There is a class of persons who are incapable of purchasing, ex- cept sub modo, as infants ; and another class, who, in consequence of their peculiar relation with regard to the owner of the thing sold, are totally incapable of becoming purchasers, while that relation exists; these are trustees, guar- dians, assignees of insolvents, and generally all persons who, by their connection with the owner, or by being employed concerning his affairs, have acquired a knowledge of his prop- erty, as attorneys, conveyancers, and the like. PRICE. The price to be paid must be CCK tain, or so referred to a definite standard that it may be made certain j 1 as, what another man has given ; or what another man shall say should be the price. But if this third party refuse 69; 6 East. 614; 7 Wend 404; i Camp. 427; 9 Barb. 511 ; 2 Gray, 196; n Law. Rep. 561 ; i B. & C 514; 4 Mass. 405 ; 21 Cal. 80. f-Dyer, 50, a; \ Salk. 113; Contra 3 Camp. 426. f?"43 N. H. 141 ; 7 E. & B. 885; 4 H. & N. 402; 20 N. Y. (6 Smith) 495. h-6 B. & C. 360; 2 Cromp. & M. 535; 2 Camp. 240; 13 East. 522; 2 M. & Sel. 397 ; 5 Taunt. 617 ; 6 B. & C. 388 ; 4 Bing. N. C. 676 ; 7 Gratt. 240 ; 7 Wend. 404 ; 15 Johns. 349 ; 3 Mason, 112; 6 Cowen, 250; 3 Wend. 112; 7 Cowen, 185 ; 10 Barb. 95 ; I Pick. 476 ; 13 Id. 175 : 14 Me. 400 ; 34 Id. 289 ; 35 Id. 385 ; 15 Penn. St. 528 ; 18 Id. 91 ; 15 Jd. 208; 20 Pick. 280; 3 N. H. 382; 2 Foster, 172; 7 Dana, 61. 1-2 Bing. N. C. 151 ; S. C. * Scott. 238 ; 20 Mo. 553. j-20 Pick. 280. k-is Penn. St. 208; 4 Seld. 291. 1-4 Pick. 189; 2 Simmer, 539; ae Mo. 553; Penn. St. 460. 630 SALES. :> fix the price, the sale is void. A sale may 'C made of an article for what it is worth, for hat can be ascertained by experts." The thing old must be specific and capable of certain dentification. There must be an agreement of mind as to this ; and if there be an honest error as to price, or as to the substantial and essential qualities of the thing sold, the sale may be treated as null. To constitute a sale there must be a price 9 ;reed upon ; but upon the maxim id cerium t;t quod reddi cerium potest, a sale may be valid, although it is agreed that the price for the thing sold shall be determined by a third person. P The price must be an actual or serious price, with an intention on the part of the seller to require its payment. If, therefore, one should sell a thing to another, and by the same agree- ment he should release the buyer from the pay- ment, this would not be a sale, but a gift, be- cause in that case the buyer never agreed to pay any price, the same agreement by which the title to the thing is passed to him discharg- ing him from all obligations to pay for it. As to the quantum of the price, that is altogether immaterial, unless there has been fraud in the transaction. The price must be certain or de- termined, but it is sufficiently certain, if, as before observed, it be left to the determination of a third person ;i and an agreement to pay for goods what they are worth is sufficiently certain/ The price must consist in a sum of money which the buyer agrees to pay to the seller; for, if paid in any other way, the contract would be an exchange or barter, and not a sale. The consent of the contracting parties, which is of the essence of a sale, consists in the agree- ment of the will of the seller to sell a certain thing to the buyer for a certain price, and the will of the buyer to purchase the same thing for the same price. Care must be taken to dis- tinguish between an agreement to enter into a future contract, and a present actual agreement to make a sale. The consent is certain when the parties expressly declare it. This in some cases it is requisite should be in writing. 8 This writing may be a letter.' When a party, by his cts, approves of what has been done, as know- igly using goods which have been left at his ouse by another, who intended to sell them, e will by that act confirm the sale. In order to pass the property by a sale, there must be an express or implied agreement that the title shall pass. An agreement for the sale of goods is prima facie a bargain and sale of those goods; but this arises merely from the presumed intention of the parties, and if it ap- pear that the parties have agreed, not that there m-Stry Sales, ? 220. n-io Bingh. 487, 382 ; 12 Tred. L. 79, 166. 0-9 M. & W. 54 ; i M. & R. 293 ; 38 Penn. St. 491. p-4 Pick. 179: see 10 Bingh. 382, 387; n Ired. 166; 12 Id. 79. |-4 Pick. 179 ; Poth. Vente. n 24. x- Coxe, 261 ; Poth. Vente. n. 26 : see 2 Summ. C. C. 539 : 20 Mo. 553 : 22 Penn. St. 460. r-See ante, FRAUDS. s-4 Bingh. 653; 3 Met. (Mass.) 207; 16 Me. 458. t-4 Wash. C. C. 79 ; see 20 Ohio, 304 ; 3 Sandf. 230 : i C. B 385. u-5 B. & C. 862: 6 Dana, 48; 7 Id. 61 : 13 Pick. 183. v-5 B. & C 862 ; 6 Dana, 48 ; 7 Id. 61 ; 13 shall be a mutual credit by which the property is to pass from the seller to the buyer, and the buyer is bound to pay the price to the seller, but that the exchange of the money for the goods shall be made on the spot, no property is transferred, for it is not the intention of the par ties to transfer any." But, on the contrary when the making of part payment, or naming a day for payment, clearly shows an intention in the parties that they should have some time to complete the sale by payment and delivery, and that they should in the meantime be trustees for each other, the one of the property in the chattel, and the other in the price. As a general rule, when a bargain is made for the purchase of goods, and nothing is said about payment and delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing remains to be done to the goods, although he cannot take them away without paying the price. T SUBJECT-MATTER OF SALE. There must be a thing which is the object of the sale; for if the thing sold at the time of the sale had ceased to exist, it is clear that there could be no sale; if, for example, you and I being in Philadel- phia, I sel) you my house or horse in Chicago, and at the time of the sale it be burned down or dead, it is manifest there was no sale, as there was not a thing to be sold." It is evi- dent, too, that no sale can be made of things not in commerce ; as the air, the water of the sea, and the like. When there has been a mistake made as to the article sold, there is nc sale; as, for example, where a broker who is the agent of both parties, sells an article, and delivers to the seller a sold note describing the article sold, as " St. Petersburg clean hemp," and bought note to the buyer as " Riza Rhine Hemp," there is no sale.* There must be an agreement as to the speci- fic goods which form the basis of the contract of sale ; in other words, to make a perfect sale, the parties must have agreed, the one to part with the title to a specific article, and the other to acquire such title. An agreement to sell one hundred bushels of wheat, to be measured out of a heap, does not change the property until the wheat has been mensureri.y TRANSITU, STOPPAGE IN. WHAT THE RIGHT OF STOPPAGE is, AMI WHO HAS IT. Stoppage in transitu is the right which resides in the vendor of goods upon credit, to recall them, upon discovering the insolvency of the vendee, before the goods have reached him, or any third party has ac- quired bona fide rights in them. 1 This right Pick. iSr w-See i Leon, 42; Hob. 132; 7 Exch. Ch- 208; 5 M. & S. 228; 2 Kent Comm. 640. 31-5 Taunt. 786, 788 ; 5 B. & C. 4^7 ; 7 East. 569 ; 2 Campb. 337 ; 4 Q. B. 747; 9 M. & W. 805 : i Moore & P. 778. y-j Johns. 179; 15 Id. 349: 2 N. Y. 258; 5 Taunt. 176; 7 Ohio, 127: 3 N. H. 282: 6 Pick. 280; 6 Watts, 29; 2 El. & Bl. 885 ; and see 6 B. & C. ;88 ; 7 Gratt. 240 ; 34 Me. 289; 25 Penn. St. 208; 22 N.'H. 172; 24 Id. 337; 7 Dana, 61 ; n Humph. 206; n Ired. 609. ?!-Seeante, BAILMENTS; 21 Ohio St. 281 ; Reasons for this rule, 5 Ohio, 88-08. SALES. 631 exists, strictly speaking, only when the vendor has parted with the goods. If they have never left his possession, he has a lien on them for the full payment of their price ; but not this right of stoppage.* The mere insolvency or bank- ruptcy of the vendee will not, per se, amount to a stoppage in transitu; for there must be some act on the part of the consignor indicative of his intention to repossess himself of the goods. b Notice of the consignor's claim and purpose given to the carrier before delivery is suffi- cient. Notice should be given to the carrier, middleman, or other person having at the time the actual custody of the goods ; or given to such a person that it may reach the carrier before delivery ; d and it should be given to the carrier having possession, and not to the vendee himself without giving notice to the carrier. This notice and demand on behalf of the con- signor need not be made by any person spe- cially authorized for that purpose ; it may be made by a general agent of the consignor ; or even by a stranger, if it be ratified by the ven- dor before the delivery to the vendee/ But a ratification of a notice and demand by an unau- thorized person, not made until after delivery to the vendee, will not suffice.* WHEN AND HOW THE RIGHT MAY BE EX- ERCISED. Generally, this right exists as long as the goods are in transitu. They are in iransitu not only while in motion, and not only while in possession of the carrier (although he v,-as appointed and specified by the consignee), but also while they are deposited in any place not actually or constructively the place of the consignee, or so in his possession or under his control, that the putting them there implies the intention of delivery. Thus, if goods are lodged in a public warehouse for non-payment of duties, they are not in the possession of the vendee, and the vendor may stop them. h They are in transit until they pass into the possession of the vendee. But this possession may be actual or constructive. Thus, suffering the goods to be marked and resold, and marked again by the second purchaser, is a constructive delivery. 1 So, a delivery by the vendor, to the vendee, of the key of the vendor's warehouse, where the goods were stored, amounts to a delivery.^ So, demanding and marking the goods by the vendee's agent at the inn where the goods arrived at their destination. 1 So, if the vendor agreed to let the goods lie in his warehouse, for a short time, although free of rent, and to accommodate the vendee. 1 So, if rent be paid. So, delivering to the vendee a bill of parcels with an order on the store- keeper for the delivery of the goods." So, giv- -2 Pick. 312 ; 2 Ho. of L. Cas. 309 ; 8 M. & W. 321 ; 10 Barb. 193. b-2 Kent Comm. 543 ; but this right ex- ists only in cases of insolvency of the vendee ; 6 Rob. Adm. 321. C-7 Taunt. i6q ; J Esp. 240; 13 Me. 93. !-5 Denio, 629 ; 5 Whart. 189 ; 2 Esp. 613 ; 9 M. & W. 518. e-5 Denio, 629. f-g M. & W. 518 ; 5 Whart. 189 ; "13 Me. 93. g-4 Exch. 786. h-2 Esp. 613; Id. 400 : 5 Denio, 629. 1-14 East. 308. j-3 T. R. 464. k-3 T. K. 464. 1-3 Mason, 107 Contra; 4 A. & E. 58. in-i Campb. 452. 11-2 Oanpb. 243 ; 3 Cajncs, 182. o-a ing an order by the vendor to the keeper of a warehouse, for the delivery of the goods* Delivery to a mercantile house, merely for transmission to the vendee, by a forwarding house, does not take away the right of stop- page.? If the carrier by reason of an arrange- ment with the consignee, or for any cause, re- mains in possession, but holds the goods only as the agent of the consignee, and subject to his order, this is the possession of the con- signee.' Yet, even in cases where an existing usage authorizes the carrier to retain the goods in his hands as security for his whole claim against the consignee, the consignor may still stop them as in transitu, and take them from the carrier, by paying him the amount duo specifically for the carriage of those goods.' As the goods may pass constructively into the possession of the consignee, so they may be transferred by him before they reach him, in such a way as to destroy the consignor's right of stoppage in transitu. This may be done by an indorsement and delivery of the bill of lading. This instrument is now by the custom of merchants, which is adopted by the courts, and made a rule of law, regarded as negoti- able ; its indorsement and delivery operating as a symbolic delivery of the goods mentioned in it. 8 And such transfer, if it is in good faith and for a valuable consideration, passes the property to the second vendee, who holds it free from the right of the original vendor to stop the goods in transitu.* But a second vendee, to whom the bill of lading is not trans- ferred, or not so transferred as to carry good title, and who neglects to take actual or con- structive possession, is in no better position than the first vendee, under whom he claims ; and the goods may be taken from him by the first vendor, on the insolvency of the first vendee. WARRANTY IN SALES. IN GENERAL. The warranties which ac- company a sale of chattels are of two kinds in respect to their subject-matter: a warranty of TITLE and a warranty of QUALITY. And also of two kinds in respect to their form, as they may be express or implied. The seller of a chattel, if in possession, warrants by implication that it is his own, and is answerable to the purchaser if it be taken from him by one who has a better title than the seller, whether the seller knew of the defect of his title or not, and whether he did or did not make a distinct affirmation of his title. But if the seller is out of possession, and no affirma- tion of title is made, then the purchaser buys at Campb. 243 ; 2 Strob. L. 309. p-i4 Penn. St. 48. q-2 Cr. & J. 218, S. C. ; 2 Tyr. 217; 6 B. & C. 107, S. C.. 9 Dow. & R. 108 ; 3 B. & P. 469. r-3 B. & P. 42. s- q Bingh. 574; 56. & Ad. 313; 7 Man. & G. 678 ; 14 M. & W. 402 ; 7 A. & E. 29 ; 5 Whart. 189, 205 ; 6 East. 41 ; 12 Barb. 310. 1-2 T. R. 63; 6 East, ai, n; Abb't Shipping, 471 ; 4 Bingh. 516, S. C. ; i Mo. & P, 304; 7 Man. & G. 678; i C. & P. 53 ; n Jur. 265 ; a Ho. of L. Cas. 309; 4 A. & E. 58; 3 Caines, 182 ; a Wash. C. C. 283; Id. 403; 25 E. L. & E. 128, S. C. ; E. & B. 6iz. SALES. hi* peril. In any case where there was this warranty of title, a title subsequently acquired by the vendor would inure to the benefit of the vendee. If the seller is in possession, but if the possession is of such a kind as not to de- note or imply title in him, there will be no warranty of title. A general warranty does not cover defects plain and obvious to the pur- chaser, or of which he has had cognizance : thus, if a horse be warranted perfect, and want a tail or aa ear. T This rule must not be mis- understood. A man may warrant against a defect which is patent and obvious as well as against any other. And a general warranty that a horse was sound would be broken, if one eye was so badly injured, or so malformed as to be entirely useless, although this defect might have been noticed at the time of sale. w And if a defect is obvious, yet if the purchaser be misled as to the character or extent, a war- ranty is implied. 1 If there be no express warranty, the common law, in general, implies none. Its rule is, unquestionably, caveat emptor^ let the pur- chaser take care of his own interests. One important and universal exception is this : the rule never applies to cases of fraud, never proposes to protect a seller against his own fraud, nor to disarm a purchaser from a defence or remedy against a seller's fraud. 1 The com- mon law does not oblige the seller to disclose all that he knows, which lessens the value of the property he would sell. He may be silent, leaving the purchaser to inquire and examine for himself, or to require a warranty. He may he silent, and be safe ; but if he be more than silent, if by acts, and certainly if by words, he leads the buyer astray, inducing him to suppose that he buys with warranty, or otherwise pre- venting his examination or inquiry, this be- comes a fraud, of which the law will take cognizance. The seller may let the buyer cheat himself ad libitum, but must not actively assist him in cheating himself.* As mere silence implies no warranty, neither do remarks which should be construed as simple praise or commendation ; b but any distinct assertion or affirmation of quality made by the owner during a negotiation. It is essential that a warranty, to be binding, be made during the negotiation ; if made after the sale is completed, n-3iVt. 162; T Head. 506. V-isH.4, \b, pi. 4; n Ed. 4,6 l>,\\, 10; a Rolle, 5 ; 2 Humph. 305 : 2 Caines, 202 : 5 Mo & P. 606; 2 Eng. 166; 34 Barb. 367; i La. An. 389. W -See 8 Bing. 454, S. C. ; 7 Bing. 603 ; 2 Bing. 183. x- 3 Strobh. L. 64. y-i Met. 550; 18 Pick. 59 ; 2 East. 521 ; Doug. 20; 3 Harr. & Johns. 89 ; 2 Caines, 48 ; 4 ohns. 421 ; 4 Conn. 428 ; 9 Port. (Ala.) 104 ; x Denio, 378; 10 Texas, 220. E-i8 Me. 418; joS. & M. 476. - 2 Wheat. 178 ; 14 Barb. 66 ; 5 Penn. St. 467 ; 3 E. L. & E. 17; i Baldw. 331 ; 3 Wash. C. C. 165 ; i Yeates, 307 ; 12 Ired. L. 49 ; i Stark. 434 ; 2 E. L. & E. 318, S. C. ; to C. B. 591 ; 2 Bro. Ch. 420 ; 8 Ired. L. 397; 32 Pick. 48; i Ves. Sen. 05 ; 14 Barb. 66; 3 Story, 700; I Id. 172; x Woodb. & M. oo ; 3 Williams, 470. Whole subject examined in 2 Kent Comm. 482, et seq.; 3 Fairf. 262 ; 13 Ired. L. 350 ; 3 Strob. L. 64 ; 37 Penn. St. 147. b-Chitty Contr. 393, n; 4 N. & H. 412. c-3 Q, U. 34 ; 5 Vt. 98; Scam. aa. U-n Wend. 584; L. it is without consideration and void. 4 If, how- ever, the vendor, in a negotiation between the parties a few days before the sale, offer to war- rant the article, the warranty will be binding* for the sale of a chattel, which it may be sup- posed was intended to cause the sale, and was operative in causing it, and will be regarded as implying or as constituting a warranty. If such affirmation were made in good faith it is still a warranty; and if made with a knowledge of its falsity, it is a warranty, and it is also a fraud. It is certain that the word warrant need not be used, nor any other of precisely} the same meaning. It is enough if the words' used import an undertaking on the part of the owner that the chattel is what it is represented to be, or an equivalent to such undertaking. One exception to the rule of caveat emptor springs from the rule itself. For a require- ment that the purchaser should " beware," or should take care to ascertain for himself the quality of the thing he buys, becomes utterly unreasonable under circumstances which make such' care impossible. If, therefore, the seller alone possesses the requisite knowledge, or means of knowledge, and offers his goods for sale under circumstances which compel the purchaser to rely upon the judgment and hon- esty of the seller, without any examination on his own part as to the quality of the thing offered, the rule caveat emptor does not apply.' If goods are sold by sample, there can be no examination of the goods, but there may be of the sample. There is, therefore, an implied warranty that the goods correspond to the sample. 1 If there be an express warranty, an examination of samples is no waiver of the warranty ; nor is an inquiry or examination into the character or quality of the things sold ; for a man has a right to protect himself by such inquiry, and also by a warranty. & If a thing be ordered from a manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied war- ranty that it is fit for that purpose. 11 If the thing is itself specifically selected and ordered, the purchaser takes upon himself the risk of its effecting its purpose. But where he orders a thing for a special purpose, or to do a specific Raym. 1120; 26 E. L. & E. 254, S. C. : 15 C. B. 130. e-Cro. J. 4 ; 3 Bibb. 35 ; 5 Johns. 354; 8 Bing. 52 ; a Caines, 48; 4 Johns. 421; 20 Id. 106 ; 15 Mass. 320; 3 Dana, 470 ; 4 Blackf. 293 ; 15 111. 345 : i Bing. 344 ; Peake's Cas. 123 ; 4 A. & E. 473 ; 2 Esp. 571 ; 4 Fos- ter, 271. f-2 Litt. 227; 4 Camp. 144; i/C. B. 619:5 G. &J. no; i Md. Ch. 446; 2 Wood. & M. 217; T Barb. 471. X-13 Mass. 139 ; 4 Cowcn, 440 ; 6 Id. 354 : q Wend. 20; 12 Id. 413; Id. 566 ; i Denio, 386 ; 19 Barb. 574 ; i Seld. 95 : Id. 73 ; 3 Rawle, 37 ; 2 Nott. & M'Cord, 538 ; 2 Sandf. 89 ; 18 Wend. 434; 19 Id. 159 ; 8 Pick. 250. jr-4 H. & N. 412. 11-24 Vt. 114: 5 Bingh. 533 ; 8 Blackf. 317 ; u Ohio St. 48 ; 8 Wis. 362 : 12 Id. 276; 6 Taunt. 108; 2 Man. & G. 279 ; 3 Id. 868; Addi- son, 150; 5 Q. B. 288; 2 Ala. 195; 2 Watts, 367; 4 Oilman, 69 ; i S. & Marsh. 381 : 23 Wend. 351 : 17 Wend. 267: S. C. 18 Id. 449; 2Chand. 28; 28 E. L. ft E. 586 S. C.; xo Ejcch. 342 ; x Wms. 827 ; i Ired L 1 66. SALES. 633 work, the"e he puts this risk upon the person who is to supply the thing. 1 No warranty can be implied from circum- stances, if there be an express refusal to war- rant. 1 And where the contract of sale is in writing, and contains no warranty, there parol evidence is not admissible to add a warranty.^ And if there be a warranty in writing, it can- not be enlarged or varied by parol evidence.* The rule as to unsoundness is, that if at the time of sale the animal has any disease which either actually does diminish the natural sound- ness of the animal, so as to make him less capable of work of any description, or which, in its ordinary progress, will diminish the use- fulness of the animal ; or if he has, either from disease or accident, undergone any alteration of structure that either actually does at the time, or in its ordinary effect will diminish his natural usefulness, such animal is unsound. 1 So, if a horse has at the time of sale the seeds of disease, which in its ordinary progress will diminish his natural usefulness, this is unsound- ness. 1 " But a temporary and curable injury, although it existed at the time of sale, if it does not injure the animal for present service, is not an unsoundness. 11 It seems to be immaterial whether the injury be permanant or temporary, curable or incurable, if it render the animal Jess fit for present usefulness and convenience. The question of soundness or unsoundness is particularly for the jury ; and the court will not set aside a verdict on account of a preponder- ance of the testimony the other way.P Any property may be sold " with all faults." This is an emphatic exclusion of all warranty. But it gives the seller no right to commit a fraud, nor will it prevent the sale from being avoided on proof of fraud. And it is fraud if the seller conceal existing faults, and draws the attention of the buyer away so as to prevent his discovering them, or places the property in such circumstances that discovery is impossible, or made very difficult."! In general, there is no implied warranty whatever arising from judicial sales/ RIGHTS AND REMEDIES OF PARTY UPON BREACH OF WAR- RANTY. When warranty has been broken, the buyer may either bring his action at once, founding it upon the breach of warranty, with- out returning the goods; but his continued pos- session of the goods, and their actual value, will be considered in estimating the damages. 4 Or, he may return the goods forthwith ; and if he does so without unreasonable delay, this will be a recission of the sale, and he may sue *-2 E. L. & E. 320, S. C. ; 10 C. B. 591 ; 4 M. & W. 399 ; I C. B. (N. S.) 613 ; i Stark. 381 ; 4 B. & C. 108 ; ii Ircd L. 166 ; 2 Cart. (Ind.) 372 ; i Denio, 378 ; 16 M. & W. 644; 12 Johns. 468 : 10 Mass. 197 ; 17 Wend. 267, S. C. : 18 Id. 449. 8 Blackf. 516 ; 2 Campb. 391 ; 3 Id. 286. I-i Spears. 314 ; i A. & E. 508 ; 18 Pick. 16. J-i Wend. 424 ; 9 Vt. 285 ; i Johns. 414 ; Id. 503 ; 4 Conn. 432; i Curtis, 90. fc-2 B. & C. 634; 4 Taunt. 779; i Dev. & B. 250 ; i Murphey, 426 ; 2 E. L. & E. 314, S. C ; 10 C. B. 602. 1-9 M. & W. 668 : 2 M. & Rob. 157 ; i Sttrk 127; 4 Campb. aSi. m-o M. & W. *6S. n-i for the price if he has paid it, or defend against an action for the price, if one be brought by the seller. But if he has sold a part before his dis- covery of the breach, and therefore cannot re- turn them, he may still rescind the sale, and will be liable for the market value of what he does not return.* And if the vendor refuse to receive the goods back, when tendered, the purchaser may sell them ; and if he sells them for what they are reasonably worth, and within a reasonable time, he may recover of the vendor the loss upon the resale, with the expense of keeping the goods and selling them." BILL OF SALE FORMS. Use ASSIGNMENT FORMS, ante. Bill of Sale General Form with Warranty. Know all men by these presents, that in con- sideration of dollars, the receipt of which is hereby acknowledged, I do hereby grant, sell, transfer, and deliver unto C. D., his heirs, execu- tors, administrators, and assigns, the following goods and chattels, viz. (describing if): To have and to hold all and singular the said goods and chattels forever. And the said grantor hereby covenants with said grantee that he is the lawful owner of said goods and chattels ; that they are free from all incumbrances ; that he has good right to sell the same, as aforesaid ; and that he will warrant and defend the same against the lawful claims and demands of all persons whomsoever. In witness whereof, the said grantor has here- unto set his hand this day of . Witness A. B. Bill of Sale of a If orse with Warranty. Know all men by these presents, that in con- sideration of dollars (or other consideration), to me paid by C. D., the receipt of which is hereby acknowledged, I, A. B. , by these presents do bargain, sell, and convey to the said C. D., his heirs, executors, administrators, and assigns, one bay horse (giving the sex, size, color, age, marks, and brands}, known as the horse, to have and to hold the same unto the said C. D., his heirs, executors, administrators, and assigns forever. And I, for myself, my heirs, executors, and ad- ministrators, will warrant and defend said horse unto him the said C. D., his heirs, executors, ad- ministrators, and assigns, against the lawful claims and demands of all and every person or persons whatsoever. Witness my hand this day of . {Signed} A. B. Witnesses See CONVEYANCES; MORTGAGES, ante. Sample. See SALRS. Sanity. See MEDICAL LAW. Secret. See* PATENTS. Sedition. See CRIMINAL LAW. Self-Defence. See CRIMINAL LAW. Senility. See CONVEYANCES, " Wills." Servants. See AGENCY. Sheriff. See CRIMINAL LAW, "Arrest." Ship's Husband. See AGENCY. Shipping Articles. See CONTRACTS. Signature. See AGENCY; CONTRACTS. Foster (N. H.) 116. 0-4 Campb. 281 ; i Stark. 127; 10 Ala. 225 : 2 Esp. 673. p-7 Taunt. 153. q-3 Campb. 154 ; Peake's Cas. 115:4 Taunt. 785 ; 3 Campb. 508 ; Stark. 561. r-g Wheat. 644 ; 19 Law Rep. 18. s-i H. Bl. 17 ; 3 A. & E. 103 ; 2 Harr. & Johns. 353 ; 14 Conn. 411; 18 Wend. 425; 8 Mo. 710; 3 Rawle. 23; jo B. Mon. 250 ; 2 Strobh. L. 242 ; 1 1 Ala. 732 ; 8 S. & Marsh. 332; 8 Cow. 31; i Taunt. 566; 3 Stark. 32; Hill, 625; 2 Id. 288; 10 Barb. 21 1 ; 28 Conn. 343 ; 21 111. 180. $-4 Comst. 122. n-2 A. & E. i?9 ; Ry. & M. 436; 4 Bingh. 722; 21 Vt. 580; 17 Pcnn. St. 310. 634 TIME. Silence. See CONTRACTS. Slander. See TORTS. Smart Money. See DAMAGKS, "Exemplary Damages." Sodomy. See CRIMINAL LAW. Somnambulism. See MEDICAL LAW. Specialty. See BONOS OR OBLIGATIONS ; CON- TEYANCES, ETC. Spelling. See CONTRACTS. Statute. See LAW. Stealing. See CRIMINAL LAW. Sterility. See MEDICAL LAW. Stipulation. See CONTRACTS. Stoppage in Transitu. See SALES. Submission. See AGENCY; ARBITRATION. Suicide. See MEDICAL LAW. Sunday. See CONTRACTS. Surety ship. See CONTRACTS ; PAYMENT, ETC. Surge/on. See MEDICAL LAW. Swear. See EVIDENCE, "Affirmation," "Oaf'i." Tenant. See LANDLORD AND TENANT. Testament. See CONVEYANCES, " Wills." TIME. Generally in computing time one day is in- cluded and one excluded ; a excluding the day on which an act is done, when the computa- tion is to be made from such an act. b Includ- ing it, except where the exclusion will prevent forfeiture. 11 Time from and after a given day excludes that day. 8 In pleading, time is a point in or space of duration at or during which some fact is alleged to be committed. In criminal actions both the day and year of the commission of the offence must appear; but there need not be an express averment if they can be collected from the whole statement. r The prosecutor may give evidence of an offence committed on any day which is previous to the making of the complaint or finding of the infor- mation or indictment ;* but a day subsequent to the trial cannot be alleged. 1 * In personal actions all traversable affirmative facts should be laid as occurring on some day, 1 but no day need be alleged for the occurrence of negative matter J A failure in this respect is, in general, aided after verdict. k Where the cause of action is a trespass of a permanent na- ture or constantly repealed, it should be laid as continuing. The day need not, in general, be the actual day of commission of the fact. 1 The exact time may become material and must then be correctly stated, m as, the time of execution of an executory written document. 11 The de- fence must follow the time laid in the plaintiff's complaint if the time is not material, but need not when it becomes material,? or in pleading matter of discharge, * or a record. 1 a-z P. A. Browne, 18:4 Monr. 464 ; 26 Ala. (N. S. ) 547; fee 2 Harring. 461 ; 5 Blackf. 319; 16 Ohio, 408; 10 Rich. 395. 0-15 Ves. Ch. 248 ; i Ball. & B. Ch. 196; 16 Cow. 659 ; 1 1 Mass. 204; i Pick. 485 ; i Met. (Mass.) 127; Anthon. 179; 3 Denio, 12; i Mod. 8; 27 Ala. 311 ; 19 Mo. 60; see 18 Conn. 18. c-According to Dougl. 463 ; Hob. 119 : 3 T. R. 623 ; 3 East. 417 ; 2 P. & Browne, 18 : 15 Mass. 193; 4 Blackf. 320; 18 How. 151. d-Hob. 139 ; 2 Campb. 294 ; Cowp. 714 ; 4 Me. 398 ; see 2 Sharsw. Bl. Comm. 140, n. 3; 13 Vin. Abr. 53, 499 ; 15 Id. 554 ; 20 Id. 266 ; Com. Dig. Temps. ; i Roper Leg. 518 ; Graham Pr. 185 ; 2 Poth. Ob. ( Evans Ed.) 50. e-n Pick. 48^; 7 J. J. Marsh. 302 ; i Blackf. 392 ; 9 Cranch 104 ; 4 N. 6.267; 3 Penn. 200; i Nott. & McC. 565 ; but see 9 Cranch. 104. f-Com. Dig. In- dictments (G. 2) ; 5 S. & R. 315. g-Arch. Cr. PI. os ; Phill. Ev. 203 ; 9 East. 157; 5 S. & R. 316. n- Addis. Generally he who has precedency in time has the advantage in right; not that time, con- sidered in itself, can make such a difference, but because the whole power over a thing being secured to one person, bars all others from ob- taining a title to it afterwards." DATE. Written instruments generally take effect from the day of their date, but the actual date of their execution may be shown, though different from that which the instrument bears. But it is said that the date is not of the essence of a contract, but is essential to the identity of the writing by which it is to be proved.' And if the written date is an impossible one, the time of delivery must be shown." In general it is sufficient to insert the day, month, and year ; though in process from courts the hour is sometimes required in addition. See CONTRACTS ; CONVEYANCES, ETC. A DAY is generally, but not always, regarded in law as a part of time ; and fractions will not be recognized/ By custom the word day may be understood to include working days only,* and in a similar manner only a certain number of hours, then the number during which the work actually continued each day ; x as a business day, those hours during which business is trans- acted, and this varies in different localities. Also, a banking day, extending from 9 or 10 A. M., to 3 or 4 P. M. A solar day is that portion of time during which the sun is shining or which the features of a man can be reason- ably discerned ? Generally, in legal significa- tion, a day includes the time elapsing from one midnight to the succeeding one.* LAPSE OF TIME often furnishes a presump- tion, stronger or weaker, according to the length of time which has passed, of the truth of certain facts, such as the legal title to rights, payment of or release from debts. MONTH. See BILLS, BONDS AND NOTES; TIME OF, ETC., p. 1 66. NIGHT is that space of time during which the sun is below the horizon of the earth, ex cept that short space which precedes its rising and follows its setting, during which, by its light, the countenance of a man may be dis> covered.* SUNDAY. The time within which an act is? to be done must be computed by excluding the first day and including the last ; if the last day be Sunday it must be excluded. Where the year expires on Sunday, such Sunday is not 36. 1-Gould PI. c. 3, 63 ; Steph. PI. 292 ; Yelv.g 4 . J- Com. Dig. Pleader (C. 19); Plowd. -24, a. Ic-ij East. 407. l-2Saund. 5, a; Co. Litt. 283, a; 12 Johns. 287 ; 3 N.H.299- m-Cowp. 671 ; 4 Esp. 152; 6T. R. 463; 10 B. & C. 215 ; i Cr. & J. 391 ; 4 S. & R. 576 ; 7 Id. 405 ; 1 Story C. C. 528. ii-Gould PI. c. 3, g 67. o-i Chitty PI. 509; i Saund. 14, 82. p-2Saund. $,a,b(n. 3). |- 2 Burr. 944; 2 Wils. 150; Plowd. 46; 2 Sir. 944. r- Gould PI. c. 3,? 83. s-i Foubl. Eq. 320. t-2 Greenl. Ev. ?? 12, 13, 489, n. ; 8 Mass. 1^9 ; 4 dish 403 ; i Johns. Cas. 91 ; 3 Wend. 233 ; 31 Me. 243; 17 Eng. L. & Eq. 548; 2 Greenl. Cruise Dig. 618, n. u-Shepp. Touchst. 72; Cruise Dig. Ch. 2, $ 61. y-is Vcs. Ch. 257; 4 Campb. 397; ii Conn. 17. w-3 Esp. 121. ^-5 Hill N. Y. 437. y-Co. 3d. Inst. 63. z-2 Bl. Comm. 141. a-i Hale PI. Cr. 550; 4 Bl. Comm. 224; Bac. Abr Burgl. (D); a Russ. Cr. 32; Roscoe Cr. Ev. 278. TIME TOUTS. 63S excluded from the computation of the thirty days preceding the expiration of the year. b THE WEEK commences immediately after twelve o'clock on the night between Saturday and Sunday, and ends at twelve o'clock seven days of twenty-four hours each thereafter. The first day of the week is called Sunday ; the second, Monday, etc. THE YEAR. The civil year differs from the astronomical, the latter being composed of three hundred and sixty-five days, five hours, forty-eight seconds and a fraction, while the former consists sometimes of three hundred and sixty-five days, and at others (leap years) of three hundred and sixty-six days. The year is divided into half year, which consists 4 of one hundred and eighty-two days; and quarter of a year, which consists of ninety- one days. 9 It is further divided into twelve months. The civil year commences immediately after twelve o'clock at night of the thirty-first day of December, that is, the first moment of the first day of January, and ends at midnight of the thirty-first day of December twelve months thereafter.' Title. See CONVEYANCES. Title Deeds. See CONVEYANCES. TORTS OR WR03TGS. See CONTRACTS. A TORT is a private or civil wrong or injury. A wrong independent of contract.* The com- mission or omission of an act by one without right whereby another receives some injury, directly or indirectly, in person, property, or reputation. DISTINGUISHED FROM AGREEMENTS OR CONTRACTS. As recognized by the law for the enforcement of rights and redress of injuries, torts may be distinguished from contracts or agreements by these qualities : That parties jointly committing torts are severably liable without right of contribution from each other; that the death of either party destroys the right of action ; that persons under personal disabili- ties to contract are liable for their torts; that attachment, arrest, and imprisonment are al- lowed on claims arising under contracts. 11 A tort, however, may grow out of, or make part of, or be coincident with, a contract, as in the familiar case of a fraudulent sale, or fraudulent recommendation of a third person; the wrong of fraud almost necessarily implies an accom- panying contract. In these cases the law often allows the party injured an election of re- medies; that is, he may proceed against the other party either as a debtor or contractor, or b-7 Ohio St. 198. C-See4Pet. 361. d-Co. Litt. 135, <5. e-Id. 2 Rolls. Abr. 521, 1.40. I'-SeeComm. Dig. Annus ; 2 Chitty Bl. Comm. 1407?. ,- Chitty Pr. Index Time. H-t Milliard Torts, i. b-Id. 3. c-io Id. 28; 10 C. B. 83; 24 Conn. 502. l-i Chitty PI. 83; 10 Mass. 435; i Gray, 500 : 2 Greenl. Ev. 108. e-i Bos. & P. 191 ; 3 Sharsw. Bl. Comm. 122. A private tort is not merged in a felony; i Gray, 83; 6 N. H. 454; 2 Root, 90; i Miles, 312; iCoxe, 113; 16 Miss. 77 ; 3 Bland, 114; 6 Rand, 223; Hawks. 251; 4 Ohio, 376; 15 Ga. 349; 6 Humph. 433 ; 6 B. Mon. 38 ; 22 Wend. 285, n. ; i Hil- .iard Torts, 71, etseq. ; see 22 Ala. (N. S.) 613 ; i Bishop r. L. 329. -23 Wend. 422 ; i Ga. 381 ; 4 McLean C. as a wrong-doer. Where personal property has been tortuously taken and turned into money or money's worth, the party injured may proceed upon the supposition of a contract implied by law in his favor. In such cases he is said to waive the tort. d DISTINGUISHED FROM CRIMES. The same act may constitute a public wrong (crime), and a private wrong (tort), and, either at the same time or at different times, be the subject of a criminal prosecution and a private action for damages. In reference to the nature of the act, manual taking, interference, or removal is not neces- sary to constitute a tort. Any act of a party who has come rightfully into the possession of property in excess of or contrary to his author- ity over it, and which negatives or is incon- sistent with the rights of the owner, constitutes a tort. f ACTIONS FOR. The liability to make reparation for an in- jury rests upon an original moral duty.* And an action on the case lies, in general, where one may sustain an injury by the misconduct or negligence of another for which the law has provided no other adequate remedy. h But to justify an action there must be a loss as well as a wrong. 1 But in a variety of cases, a wrong being proved, consequent damage will be presumed. 1 In order to maintain an action the relation of cause and effect must be shown between the act and the injury ,J and the damage must not be remote or indirect,* although every person who does a wrong is responsible for all the mischievous consequences that may reasonably be expected under ordinary circumstances from such misconduct. 1 In general, courts can en- force only local obligations and redress injuries to local rights." 1 Hence the legality or illegal- ity of any act may sometimes determine whe- ther it is to be viewed as a tort. In general, if a party in the exercise of a legal right, more especially if conferred by express statute, does an injury to another's property, he is not liable for damages, unless caused by the want of or- dinary care and skill. In general, no right of action can arise from an illegal transaction. But the rule does not interfere with the right of property even in articles the sale of which is forbidden by law.P A party may be debarred from an action by a license, by estoppel, or by a waiver. - In general, a party injured cannot maintain C. 378; 2 Harring. 71 : 8 Pick. 543 ; 15 M. & W. 448. JSf-3 Ohio St. 172. h-2o Vt. 151. \-Damnum absque injuria and injuria absque damno ("a loss without an injury," and vice -versa) are alike regarded as beyond the reach of legal redress. X-i Milliard Torts, 82; 36 Me. 32'j; Broom Comm. 76; 16 Pick. 64; i Gray, 186; 2 Ld. Raym. 048. j-i2 Barb. 657. It-n Met. (Mass.) 290. 1-5 Exch. 243 : see 2 Greenl. Ev. # 224 : ' Chitty PI. 115-120; 17111.580. m-i2 La An 255. 11-24 Miss. 93; 2 Stock. 352; see i Str. 634. o-n Cush. 322; 10 Met. (Mass.) 363; 12 Id. 24; 2 Conn. 13, 501 ; 9 J. B. Moore, 586. |-i Gray, i ; 20 N. H. 181. q-8 Met. (Mass.) 34; 7 Bingh. 682; 10 Ad. & El. 90. 18 Barb 599; 7 Watts. 337; 19 Ala. (N. S.) 252. 636 TORTS. an action for the injury if caused in any degree by his own neglect or wrong.' Various and nice distinctions, however, are made upon this general subject, involving the degree of neglect or wrong on the part of the plaintiff, which will debar him from maintaining an action, and its nature, as being proximate or only the re- mote cause of the injury.' But the whole question is in general for the jury.* COMMISSION OF AND LIABIL- ITY FOR TORTS. A wrongful or malicious intent is an essen- tial element in many torts, as, for example, as- sault, fraud, slander, and malicious prosecution. In general a prominent distinction between torts and crimes is that in the former the party's intent is immaterial, while in a prosecution for the latter a criminal purpose must always be alleged and proved. On the other hand, an act which does not amount to a legal injury and violates no legal right, is not actionable because done with a bad intention." A tort may consist in the violation of a stat- ute/ or the abuse of a privilege given by statute. w And, in general, though a party's original act or conduct may have been right and lawful, there may be such an abuse of the powers and privileges which the law confers upon him as will render him liable to an action as for a trespass, in the first instance or make him a trespasser ab initio* Acts lawful and innocent in themselves may also become wrongful when done without just regard for the rights of others, and without suitable reference to the time, place, or manner of performing them.' But an action cannot be maintained for annoyance received from acts done on land adjoining the plaintiff's, which the proprietor might lawfully do in exercise of his dominion over his own. 1 The most comprehensive and various class of torts consists of wrongs to property. In general, possession alone is sufficient to main- tain an action for tort; while property alone is not sufficient without possession, or the right of possession.* Even a wrongful possessor may maintain an action against a third person in the title; and the title of a third person, un- less the defendant claims under him, is no de- fence. 1 * But where no one is in actual posses- sion, the title is sufficient constructive possession to maintain an action ; more especially posses- sion of a part gives constructive possession of the whole." And title is generally a good defence to an action founded upon mere possession. 4 DEFENCE. With respect to the defence of one's self, wife, children, servants, etc., from torts, etc. See CRIMINAL LAW, " Self-de- fence." With respect to the defence or pro- r-i Hilliard Torts, c. 4 : 6 Hill (N. Y.) 592 ; 9 Md. 160; 19 Conn. 507; 4 Zabr. 824; 35 Me. 422 ; 3 C. B. i. -16 Perm St. 463; 5 Duer, 21; 12 C. B. 742; 16 Id. 179; 2 Taunt. 314; uCush. 364; 3 M. & W. 248; 6 Tnd. 82 ; i Denio, 91. t-ig Conn. 566; 28 Eng. L. & Eq. 48 ; 30 Id. 473 ; 3 Man. & G. 59 ; 12 Ad. & El. 439 ; 16 III. 277 ; 7 Met. (Mass. ) 274. 11-13 C. B. 285 ; 28 Vt. 49. V-2 La. Raym. 953. W-io III. 425. x-2 Grecnl. fev. {615; 8 Co. 145; II Barb. 390. y-4 Const, no. tection of one's personal property a man may repel force by force in its defence, and even justify homicide against one who manifestly in- tends or endeavors, by violence or surprise, to commit a known felony, as robbery. With respect to the defence or protection of real property, although it is justifiable to even kill a person in the act of attempting to commit a forcible felony, as burglary or arson ; yet this justification can only take place when the party in possession is wholly without fault." And. when an illegal forcible attack is made upon a dwelling-house, with the intention merely of committing a trespass, and not with any feloni- ous intent, it is generally lawful for the rightful occupant to oppose it with force.* See DE- TAINER, above, and TRESPASS, below. HARBORING. See APPRENTICESHIP. INJURIES arise in three ways: I. By nonfeasance, or the not doing what was a legal obligation, or duty, or contract, to perform. 2. Misfeasance, or the performance in an improper manner of an act which it was either the party's duty or his contract to perform. 3. Malfeasance, or the unjust performance of some act which the party had no right, or which he had contracted not to do. The remedies are different as the injury affects private individuals or the public. When the injuries affect a private right and a private individual, although often also affecting the public, there are three descriptions of remedies. I. The preventive, such as defence, resistance, recaption, abatement of nuisance, surety of the peace, injunction, etc. 2. Remedies for com- pensation, which may be by arbitration, suit, action, or summary proceedings before a justice of the peace. 3. Proceedings for punishment, as by indictment, or complaint, and prosecution before a justice of the peace. When the in- jury is such as to affect the public it becomes a crime or misdemeanor, and the party may be punished by indictment or conviction for the public injury or offence, and by civil action, at the suit of the party, for the private wrong. But in cases of felony, the remedy by action for the private injury is generally suspended, until the party particularly injured has fulfilled his duty to the public by prosecuting the offender for the public crime ; and in cases of felony the remedy is merged in the felony.' There are many injuries for which the law affords no remedy. In general, it interferes only where there has been a visible physical injury inflicted, while it leaves almost wholly unprotected the whole class of the most malig- nant mental injuries and sufferings, unless in a few cases where by a fiction it supposes some Z-5 Rich. 583. B-i Dutch, 443 : 22 N. H. 468 ; 15 Vt. 119 ; 15 Mo. 403; 6 Nev. & M. 422. b-22 N. H. 468 ; 30 Me. 451 ; i Str. 505; n Johns. 529; 16 Mass. 125 ; 8 Blackf. 175; 25 Me. 453; 9 Gill. 7. C-i Hill (N. Y.) 312 ; 6 Dowl. & R. 572 ; 5 Md. 540 : 14 Wend. 239. d- 8 Humph. 412; 18 Ga. 539; 5 Met. (Mass.) 599; 3 Zabr. 155. e-i Hale PI. Cr. 440, 444 ; I East. PI. Cr. 259,277- f-7Bingh. 305; 20 Eng. C. L. 139 ; sc Chitty Pr. 589; Gratius Lib. 2, Ch. i ; Rutherford I nst. B. i. Ch. 16. f-i Chitty Pr. 10; Ayliffe Pand. 592. TORTS. pecuniary loss, and sometimes affords compen- sation to wounded feelings. A parent, for example, cannot sue in that character for an injury inflicted on his child, and when his own domestic happiness has been destroyed, unless the fact will sustain the allegation that the daughter was the servant of her father, and that by reason of such seduction he has lost '.he benefit of her services. Again, a party cannot recover damages for verbal slander in many cases, as, where the facts published are true; for the defendant would justify their utterance by their truth, and the party injured must fail, nor will the law punish criminally the author of a verbal slander, imputing even the most infamous crimes, unless done with the in- tent to extort a chattel, money, or valuable thing. The law presumes that a man is in- capable of being alarmed or affected by such injuries to his feelings. 11 The true and sufficient reasons for these rules are, the uncertain char- acter of the injury inflicted, the impossibility and the danger supposing a pecuniary compen- sation to be attempted, that injustice would be done under the excitement of the case, hence the sound principle of the law, confirmed by experience, to inflict a punishment for crime ; but not sell, through the agency of its courts, those wounded feelings which would constitute the grounds of such actions. See LIBEL; SLANDER, below. LIBEL, is any matter, written or printed, and published, and calculated to injure- the character of another by bringing him into ridi- cule, hatred, or contempt. 1 Everything written or printed, which reflects upon the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been.J A malicious defa- mation, expressed either in printing or writing, tending either to blacken the memory of one who is dead, or the reputation of one who is .I'.ive, and expose him to public hatred, con- tempt, or ridicule, is libel.* A censorious or ridiculous writing, picture, or sign made with a malicious or mischievous intent towards gov- ernment, magistrates, or individuals, is libel. 1 There is a great and well-settled distinction between verbal and written slander; and this not only in reference to the consequences, as subjecting the party to an indictment, but also as to the character of the accusations or im- putations essential to sustain a civil action to I cover damages. To write and publish mali- ciously anything of another which either makes him ridiculous, or holds him out as a dishonest man, is held to be actionable, or punishable criminally, when speaking the same words would not be so. x The reduction of the slan- derous matter to writing or printing is the most h-See I Chitty Med. Jur. 320. J-Parke J. 15 M. & W. 344. j-is M. & W. 437. fc-i Hawk. PI. Cr. B. i Ch. 73, J *j 4 Mass. 168 ; 2 Pick. 115 ; 9 Johns. 214 ; z Denio, 347; 34 Wend. 434; 9 B. & C. 172; 4 M. & R. 127; 2 Kent Coram. 13. 1-3 Johns. Cas. 354; 9 Johns. 215; 5 Binn. 340. x-i Saund. (6 Ed.) 247 a; 4 Taunt. 255: 5 Binn. 219; Hurd. Lib. & S. 74; 6 Cush.. 75. usual mode or conveying it. The exhibition of a picture intimating that which in print would be libellous is equally criminal. 1 " Fixing a gal- lows at a man's door, burning him in effigy, or exhibiting him in any ignominious manner, is a libel." The above is a general description of libel, a branch of the law which is one of the most difficult to compress into a small com- pass. Any publication which has a tendency to disturb the public peace, or good order of society, is indictable as a libel. This crime is committed by the publication of writings blas- pheming the Supreme Being, or turning the doctrines of the Christian religion into con- tempt and ridicule; or tending, by their im- modesty, to corrupt the mind, and to destroy the tone of decency, morality, and good order; or wantonly to defame or indecorously to ca- lumniate the economy, order, and constitution of things which make up the general system of the law and government of the country; to degrade the administration of government, or of justice ; or to cause animosities between our own and any foreign government, by personal abuse of its sovereign, its ambassadors, and other public ministers; and by malicious defamation, expressed in printing or writing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is living, and thereby to expose him to public hatred, contempt, and ridicule. This descriptive catalogue embraces all the several species of this offence which are indictable at common law; all of which are indictable either at common law or by virtue of particulat statutes. Libels against the memory of the dead, which have a tendency to create a breach of the peace, by inciting the friends and rela- tives of the deceased to avenge the insult of the family, render their authors liable to indict- ment. The malicious intention of the defend- ant to injure the family of the deceased must be expressly avowed and clearly proved.? If the matter is understood as scandalous, and is cal- culated to excite ridicule or abhorrence against the party intended, it is libellous, however it may be expressed .1 The publisher of a libel is liable to be punished criminally by indict- ment," 1 or is subject to a civil action for dam- ages by the party aggrieved. Both remedies may be pursued at the same time. 1 MALICE. See SLANDER, below. NUISANCE. See that title, ante. PIRACY. See COPYRIGHTS; PATENTS. SLAN DER is any words, spoken or written, which are injurious to the character of another. The ground of all liability to an action for words spoken or written consists in the injury m-2 Campb. 512 ; 5 Co. 125 ; 2 S. & R. 91. n-Kawk. PI. Cr. B. i Ch. 73, 2 ; n East. 227. 0-3 Greenl. Er. 164; see 4 Mass. 163; 9 Johns. 214; 4 M'Cord, 317; ?N. H. 34. p-s Co. 125 ; 4 T. R. 126, 129, . ; 5 Jinn. 2J5i ; Heard. Lib. & S. 72, 383. 11-17; Hob. 215; Chit r-2 Chitty Cr. L. 875. "-See a Bishop |-5 East. 463 ; i Price Exch. 11-17; Hob. 215 ; Chitty Cr. L. 1 Campb. Cr. L. ; Heard. Lib. & S. 6 3 8 TORTS. to character ; and an action may be maintained in the following cases : To be actionable in themselves, the words when only spoken (not written) must be such as in their plain and popular sense convey to the minds of the hearers a charge of some offence for which the plaintiff is amenable to the law, or of hav- ing some disease which will exclude him from society. Words which are not actionable in themselves become so when they are spoken of a person in his profession, office, or trade, and necessarily or naturally tend to injure him therein. And any words defamatory or injuri- ous in their nature, spoken of another, without legal justification, are actionable, if productive of special damage flowing naturally from slan- der. The term "libel" is applied to written or printed slander.' In verbal slander. Actionable words are of two descriptions : first, those actionable in themselves, without proof of special damages; and, secondly, those actionable only in respect of some actual consequential damages. Words of the first description must impute : 1. The guilt of some offence for which the party, if guilty, might be indicted and punished by the criminal courts : as, to call a person a " traitor." " thief," " highwayman," or to say that he is guilty of " perjury," " forgery," " murder," and the like. And although the imputation of guilt be general, without stating the particulars of the pretended crime, it is actionable." An action will lie for all wc.ds spoken of another which impute to him the commission of a crime involving moral turpi- tude and which is punishable by law. T 2. That the party has a disease or distemper which renders him unfit for society." An ac- tion can, therefore, be sustained for calling a man a leper.* Imputations of having at the present time the venereal disease or the gonor- rhoea are actionable in themselves.'' But charg- ing Another with having had a contagious disease is not actionable, as he will not on that account be excluded from society. 1 3. Unfitness in an officer, who holds an office to which profit or emolument is attached, either in respect of morals or inability to discharge the duties of the office : in such a case an action lies.* 4. The want of integrity or capacity, whether mental or pecuniary, in the conduct of a pro- fession, trade, or business, in which the party is engaged, is actionable ; b as, to accuse an attorney or artist of inability, inattention, or want of integrity, or a clergyman of being a drunkard, 4 is actionable. It is one of the tJfTeard. Libel & Slander, 8. n-Croke Jac. 114, 142 ; 6 Term. 674; 3 Wils. 186; 2 Ventr. 266; 5 Bos. & P. 335. v-Heard, Libel & S. 24 ; see 3 Serg. & R. Penn. 255: 7 Id. 451; 10 Id. 44: 8 Mass. 248; 13 Johns. N. Y. 124, 275; Starkie, Slander, 13-42. W-Bacon Abr. Slander (B 2). x-Croke Jac. 144 ; Starkie Slander, 67. y-8 C. B. N. S. 9; 7 Gray, Mass. 181 ; 22 Barb. N. Y. 396 ; 2 Ind. 82 ; 2 Ga. 57. z-2 Term. 473, 474 ; 2 Strange, 1189; i aeon Abr. Slander (B 2). -i Salk. 695, 698 ; Rolle Abr. 65 ; 2 Esp. 500; 4 Coke, 16 a. ; 5 Id. 12$; i Strange, 617; 3 Ld. Raym. 1369: Buller^ Nisi P. 4 ; Starkie Slander, 100. b-i Hal. Entr. 234. general rules governing the aciiui /or words spoken, that words are actio. able, when spoken of one in an office of profit, which have a natu- ral tendency to occasion the loss of his office, or when spoken of persons touching their respective professions, trades, and business, and which have a natural tendency to their damage. The ground of action in these cases is that the party is disgraced or injured in his profession or trade, or exposed to the hazard of losing his. office, in consequence of the slanderous words; not that his general reputation and standing in the community are affected by them. It will be recollected that the words spoken, in this class of cases, are not actionable of themselves, but that they become so in consequence of the special character of the party of whom they were spoken. The fact of his maintaining that special character, therefore, lies at the very foundation of the action. 8 Of the second class are words which are actionable only in respect of special damages sustained by the party slandered. Though the law will not permit in these cases the inference of damage, yet when the damage has actually been sustained, the party aggrieved may support an action for the publication of an untruth ; f unless the assertion be made for the assertion of a supposed claim ;& but it lies if maliciously spoken. In this case special damage is the gist of the action, and must be particularly specified in the declaration. For it is an estab- lished rule that no evidence shall be received of any loss or injury which the plaintiff had sustained by the speaking of the words, unless it be specially stated in the declaration. And this rule applies equally where the special damage is the gist of the action and where the words are in themselves actionable. 11 The charge must be false. 1 The falsity of the accusation is to be implied till the contrary is shown.J The instance of a master making an unfavorable representation of his servant, upon an application for his character, seems to be an exception, in that case there being a presumption, from the occasion of the speaking, that the words were true. k The slander must, of course, be published, that is, communicated to a third person, and, if verbal, then in a language which he understands; otherwise the plaintiff's reputa- tion is not impaired. 1 A letter addressed to the party, containing libellous matter, is not sufficient to maintain a civil action, though it may subject the libeller to an indictment, as tending to a breach of the peace. The slander C-3 Wils. 187; 2 W. Blackst. 750. d-i Binn. Perm. 178. e-Heard I.ibtl & S. tt 41, 45. f-i Lev. 53; i bid. 79,80; 3 Wood, 210, 2 Leon. in. g-Comyns Dig. Action vpon the Case for Defamation ( D 30) ; Bacon Abr. Slander (B). h-Heard Libel & S. j> 51 ; see i Rolle Abr. 36 ; i Saund. 243; Bacon Abr. S'ander (C); 8 Term. 130; 8 East, i; Starkie Slander, 157. J-s Coke, 125, 126; Hob. 253. j-2 East. 4^6; I Saund. 242. It-i Term, in ; 3 Bos. & P. 587; Starkie Siand. 44. *75i a2 3- 1-' Rolle Abr. 74 ; Croke Eliz. 857 ; i Saund. 842, n. 3; Bacon Abr. Slander (D 3). m-2 Blackst. Comm. 1038; i Term, no; i Saund. 132, n. 2; 2 Esp. 623 ; 4 Id. 117; a East. 361. TORTS, 630 must be published respecting the plaintiff. A mother cannot maintain an action for calling her daughter a bastard. In an action for slander, whether oral or written, it will afford no justification that the defamatory matter has been previously published by a third person, that the defendant at the time of his publication disclosed the name of that third person and believed all the statements to be true.P And a repetition of oral slander already in circulation, without expressing any disbelief of it, or any purpose of inquiring as to its truth, though without any design to extend its circulation or credit, or to cause the person to whom it is addressed to believe or suspect it to be true, is actionable.' The -words must be uttered without legal occa- rien, to render them actionable. On some occasions it is justifiable to utter slander of another; in others it is excusable, provided it be uttered without express malice. r It is justi- fiable for an attorney to use scandalous expres- sions in support of his client's cause and perti- nent thereto.* Members of Congress and other legislative assemblies cannot be called to account for anything said in debate. Malice is essential io the support of an action for slanderous words. But malice Is, in general, to be presumed until the contrary be proved,' except in those cases where the occasion prima facie excuses the publication." SLANDER OF TITLE, or statements tending to cut down the extent of title, if malicious, injurious, and false, is actionable. The malice need not be in its worse sense, but with intent to injure the plaintiff. If the state- ment be true, if there is really the infirmity in the title that is suggested, no action will lie, no matter however malicious the defendant's inten- tion may have been. T TRESPASS is any misfeasance or act of one person whereby another is injuriously treated or damnified.* Any unlawful act com- mitted with violence, actual or implied, to the person, property, or rights of 'another. Any unauthorized entry upon the realty of another to the damage thereof. UPON PERSONAL PROPERTY. An action lies for injuries to personal prop- erty, which may be committed by the several acts of unlawfully striking, chasing if alive, and carrying away to the damage of the plain- O-n Serg. & R. Penn. 343. p-Heard Elbel & S. ? 148, 149. n-5 Gray, Mass. 3. r-Bacon Abr. Slander (D4); RolFe Abr. 87; i Viner Abr. 540. s-i Maule & S. 280 ; I Holt, 531 ; t Barnew. & Aid. 232 ; see 2 Serg. & R. Penn. 469; i Binn. Penn. 178; n Vt. 536; Starkie Slander, 182. t-4 Bamew. & C. 247; I Saund. 242, n. a; i Term, in, 544; i East. 563; 2 Id. 4S 6 ; 5 Bos. & P. 335 ; Buller, Nisi P. 8. n-4 Barnew. & C. 247 ; see 14 Serg. & R. Penn. 359 ; Starkie Sland. 201. v-Heard Lib. & S. ? 10, 59, et sea. W-3 Bl. Conn. 208 : 7 Conn. 125. x-i Wms. Saund 84, nn 23 ; Fitzherbert Nat. Brev. 86 ; Brooke Abr. Trespass, pi. 407; Cro. Jac. 362. y-2 Root. 209; 5 Vt. 97. z-i Me. 117; 12 Id. 122; i3Pick.i39; sJohns.'^S. a-n Pick. 382 ; 21 Id. 369 ; 13 Johns. 141 ; i N. H. ITO ; 4 J. J. Marsh. 18; a Bail. 466 ; 4 Munf. 444 ; 6 Blackf. 136; 4 111. 9 ; 6 W. & S. 323. b-i T. R. 480 ; 7 Johns. 535 ; 8 Id. 432 ; ii Id. 377; s Vt. 274; i Penn. St. 238; 17 S. 41 tiff, 1 or by defacing, corrupting, or otherwise injuring, either by direct or remote means, a personal chattel, of which another is the owner, and in possession/ and for the removal or in- jury of inanimate personal property, 1 of which another has the possession, actual or construc- tive,' without the owner's assent. A naked possession or right to immediate possession is sufficient to support an action. b UPON REAL PROPERTY. An action lies for injuries to realty conse. quent upon entering without right upon anotlier man's land. The enclosure may be purely im- aginary, but reaches to the sky and to the cen- tre of the earth. d The plaintiff must be in possession with some title," though mere title is sufficient where no one is in possession/ as in the case of an owner to the centre of a high- way,* and mere possession is sufficient against a wrong-doer, 11 and the possession may be by an agent 1 but not by a tenanU other than a ten- ant at will. k An action will not lie unless some damage is committed; but slight damage only is re- quired. Some damage must have been done to sustain the action, 1 " though it may have been very slight; as breaking glass. An action will not lie where the defendant has a justifica- tion sufficient to excuse the act committed, though he acted without authority from the owner or the person affected, and accident may in some cases excuse a trespass.? The gist of an action for trespass is the in- jury done to the plaintiff 's possession. To con- stitute trespass there must be a disturbance of the plaintiff's possession .1 Where no one is in possession (the land being vacant and unculti- vated) the party having the title or right of possession may maintain trespass. 11 It is set- tled that the owner of wild and uncultivated land is to be deemed in possession so as tq maintain trespass, until an adverse possession is clearly made out. 8 Therefore, the plaintiff must allege and prove : 1. That the property was in his possession at the time of the injury, and this rightfully a* against the defendant ; and, 2. That the injury was committed by the d. fendant with force. The law always couples the idea of force with that of intrusion upon the property of another.* & R. 251; ii Mass. 70; ii Vt. 521; i Ired. 163; io Vt. 165. C-3 BI. Comm. 209; i Dev. & B. 371. d-ip Johns. 381. e-s East. 485 ; o Johns. 61 ; ii Id. 140, 385: 12 Id. 183; i Nott. & M'C. 356; 2 Id 68; io Conn. 225; ii Id. 60; 6 Rand. 8, <;s6; 4 Watts 377: 4 Pick. 305 ; 15 Id. 32 ; 4 Bibb. 218; 2 Hill (S. C.) 466 ; i Harr. & J. 295; 31 Penn. St. 304; 5 Harrinp; 320: 11 Ired. 417. f-iAla. 229; i Wend. 466; i Vt. 485 ; 8 Pick. 333; i Dev. & B. 68. fc-4 N. H. 36: i Penn 81.336: see 17 Pick. 357. h-9 Ala. 82; i Rice, 368; 23 Ga. 590; see 22 Pick. 295. i-3 M'Cord, 422. J-8 Pick. 235; i Hill (S. C.) 260; see 13 Ind. 64. k-is Pick. 102. 1-2 Johns. 357; 9 Id. 113,377; 2 Mass. 117; 4 Id. 266. m-2 Bay, 421. n-4 Mass. 170. 0-8 Law Rep. 77. p-7 Vt. 62 ; 4 M'Cord, 61 ; 12 Me. 67. q-3 Gray, 329, 330 ; 7 Cush. 355 ; 3 Id. 306. r-i Stew. 329 ; i Wend. 466 ; I Vt. 485. 8-3 S. & R. 513 ; 2 GU- man, 652; 3 English, 470; B Cranch, 249. t-3 Bl. Comm. 2ii. 640 TORTS. Plaintiff s Possession. The possession of the plaintiff may be actual or constructive. And it is constructive when the property is either in the actual custody and occupation of no one, but rightfully belongs to the plaintiff. A ten- ant at will and one entitled to the mere profits of the soil, with the right of culture, may also sue and recover for an injury to the emble- ments to which he is entitled. 11 A general owner has also a constructive possession as against his tenant, who having a special prop- erty, has violated his trust by injuring or de- stroying that which was confided to him. Thus, if a tenant at will cuts down trees, the interest of the wrong-doer is thereby determined, and the possession, by legal intendment, immedi- ately reverts to the owner or co-tenant, and proof of the wrongful act will maintain the alle- gation that the thing injured was in his posses- sion/ So, if one enters upon land, and cuts timber upon a parol agreement for the purchase of the land, which he afterwards repudiates as void under the statute of frauds, his right of possession also is avoided ab initio, and is held to have remained in the owner, who may main- tain trespass for cutting the trees.* And gen- erally, where a right of entry, or other right of possession, is given by law, and it is afterwards abused by any act of unlawful force, the party is a trespasser ab initio.*- But where the general owner has conveyed to another the exclusive right of present posses- sion and enjoyment, retaining to himself only a reversionary interest, the possession is that of the lessee, who alone can maintain an action of trespass for a forcible injury to the property. Thus, a tenant for years may have an action of trespass for cutting down trees.? And a tenant at will, for throwing down fences erected by himself, and destroying the grass." The lessor or general owner never being per- mitted to maintain this action for an injury done to the property while it is in the possession of a lessee entitled to its exclusive enjoyment.* Where the subject of the action is a partition fence between the lands of two adjoining proprietors, it is presumed to be the common property of both, unless the contrary is shown. b If it is proved to have been originally built upon the land of one of them, it is his ; but if it were built equally upon the land of both, though at their joint expense, each is the owner in severalty of the part standing on his own land ; if the boundary is a hedge and one ditch, it is presumed to belong to him on whose side the hedge is ; it being presumed that he who dug the ditch threw the earth upon his own U-Co. Litt. 43,- 3 Burr. 1824; 6 East. 602; 7 Id. 200 ; 9 Johns. ro8 ; 5 Bing. 285 ; 9 Cowen, 39 ; 7 Gush. 467 ; ii Id. 181 ; 10 Id. 99, 103 ; 2 Id. 237 ; 8 Met. i ; n Cush. 147, 150; 37 Me. 14; Id. 52 ; Id. 239; 5 Kas. 433. V-Co. Litt. 57 a; Cro. E. 777, 784 ; 5 Co. 13, S. C. ; njur. 104; i tick. 43 ; lyMass.zSz. w-gjohns. 35. x-8 Co. 145; 12 Johns. 408; 12 Met. 279 ; 3 Cush. 438. y-a Campb. 491 ; 2 M. & S. 499. Z-3 Greeul. 6. a-i Johns. 511 ; 3 Id. 468. fo-8 B. & C. 259, and note a ; Id. 257. c-s Taunt. 20. d-3 Taunt. 138, per Law- rence, J. e-Archibold's N. P. 328. f-i Moody & land, which alone was lawful for him to do, and that the hedge was planted as is usual on the top of the bank thus raised/ 1 but if there is a ditch on each side of the hedge, or no ditch at all, the hedge is presumed to be the common property of both proprietors. 8 If a tree grows so near the boundary line, that the roots extend into the soil of each proprietor, yet the property in the tree belongs to the owner of the land in which the tree was originally sown or planted.' But if the tree stands directly upon the line be- tween adjoining owners, so that the line passes through it, it is the common property of both, whether it be marked as a boundary or not ; and trespass will lie if one cuts it down with- out the consent of the other.* Proof of an actual and exclusive possession by the plaintiff, even though it be by wrong, is sufficient to support an action against a mere stranger or wrong-doer, who has neither title to the possession in himself, nor authority from the legal owner. 11 Injury to. The plaintiff must, in the next place, prove that the injury was committed by the defendant, with force. And the de- fendant will be chargeable, if it appear that the act was done by his direction or command, or by his servant in the course of his master's business, or while executing his orders with ordinary care ; or if it be done by his domestic or reclaimed animals. 1 The law of this State as to enclosures makes the party having a fence insufficient in law, guilty of negligence, and he cannot recover for injuries done his crops by stock running at large and roaming upon his land through such insufficient fence, nor can such a party recover even if the owner of the stock was himself chargeable with negligence, unless it amounts to a wilful, wanton or mali- cious want of care.J The object of the law regulating fences is not to protect a wanton trespass, nor a trespass with intent to injure.* It will not be necessary for the plaintiff to prove that the act was done with any wrongful intent; it being sufficient if it was done without a justi- fiable cause or purpose, though it were done accidentally, or by mistake. 1 And though the original entry or act of possession were by authority of law, yet if a subsequent act of force be unlawfully committed, such as would have made the party a trespasser if no authority or right existed, he is a trespasser ab initial Nor is it necessary, in order to enable a party to recover for injuries done to his property, caused by the negligence of others, that he should be entirely free from all negligence himself; but if his negligence is slight, and Malkin, 112 ; 2 Roll. Rep. 141 ; Dig. lib. 47, tit. 7, i, 6, #2; Coop. Just. p. 80. |f-i2 N.H. 454. h-i East. 244 ; 3 Burr. 1556, 1563 ; 4 Taunt. 547 : 2 Watts. 180; 3 Met. 839 ; 14 Pick. 297: 12 Shep. 453; Id. 411 ; 39 Me. 451 ; 5 Md. 540 ; 10 Texas, 462 ; 8 Gray, 413. 1-9 B. & C. 591 ; 8 Wend. 474; 6 Com. Dig. 392 ; Tres- pass C. i ; 10 Wend, no ; 4 D. & R. 202. J-5 Kas. 433. It-Id. 1-Chitty PI. 192; i Camp. 407; 3 Id. 57;; 3 Lev. 37: 5 Mass. 341; n Id. ^oo; Id. 507; 20 Miss. 322 ; i Williams CVt.) 657; 15 111. 53. ttl-8 Co. 145 ; 5 B. & C. 485 ; 3 Wils. 20. TORTS. 641 that of the other party is gross, or if his is re- mote, and that of the other is the proximate cause of the injury, he may recover." It is a question of fact for the jury to determine, whether there has been negligence, and its nature and degree ; but it is a question of law, for the court to determine, what degree of care and diligence on the one side, and of negligence on the other, will entitle the plaintiff to re- cover. The allegation of the time when the trespass was committed is not ordinarily mate- rial to be proved ; the plaintiff being at liberty to prove a trespass at any time before the com- Inencement of the action, whether before or after the day laid in the complaint. Defences. In the defence of this action, the general issue is not guilty ; under which the defendant may give evidence of any facts tend- ing to disprove either of the propositions which, as we have seen, the plaintiff is obliged to make out in order to maintain his action. And any matters which go to show that he never did the acts complained of may be given in evidence under the general issue. He may show under this issue that the freehold and immediate right of possession is, in himself, or in one under whom he claims title; thus disproving the plaintiff's allegation that the right of possession is in him.P But if he acted by license even from the plaintiff, without claiming title in himself ;i or if he would jus- tify under a custom to enter/ or under a right of way ; or if the injury was occasioned by the plaintiff's own negligence, or was done by the defendant from any other cause, short of any of such extraneous force as deprived him of all agency in the act, it cannot be shown under this issue, but must be specially pleaded.* So, also, matters in discharge of the action ; but matters in mitigation of the wrong and dam- ages which cannot be so pleaded, may be given in evidence under the general issue. The general rule is, that all matters which confess and avoid, whether alleged by the plaintiff or defendant, must be specially pleaded, otherwise the proof of them is not admissible. T In some cases trespass is justifiable, or, in other words, entry on another's land or house is not accounted trespass ; as if a man comes to demand or pay money there payable, or to execute in a legal manner the process of the law. So, entering into an inn or public house without first asking the owner's leave, because when a man professes to keep an inn or public 'house, he thereby gives a general license to any person to enter his doors. w In like manner the law warrants the hunting of ravenous beasts of prey, because the destroying of such creatures is said to be profitable to the public. 1 But he cannot justify breaking the soil and digging him n-5 Kas. 167; Id. 191. O-Id. p-i Chitty PI. 437-' 7 T. R. 354; i Mass. 159; 4 Blackf. 348; 4 Pick. 127; 12 Met. 183. q-2 Campb. 378 ; i Peake, 67 ; 24 Pick. 187; 26 Vt. 178. r-4 Pick. 145. 8-7 Mass. 385. t-i Chitty PI. 437, 438; 2 Camp. 500. u-i Chitty PI. 441, 442 ; 31 Vt. 433 ; Id. 624 : 2 H. & N. 276 ; 6 Ad. & El. 174. N. S. V-2 Stark. Ev. 825; 5 Dutcher, 571. w-3 B. Comra. 212. x-ld. 313. y-Id. 214. it-Id. 213. a- out of the earth ; for though the law warrants the hunting of such noxious animals for the public good, yet it must be done in the ordi- nary and usual manner.!' But in cases where a man misdemeans himself and makes ill use of the authority with which the law intrusts him, he is a trespasser ab initio* If a defendant justifies the destruction of the plaintiff's prop- erty, by the defence of his own, he must aver and prove that he could not otherwise preserve his own property.* If, however, the plaintiff':; dog were killed in the act of pursuing the de- fendant's deer in his park, or rabbits in his warren, or poultry within his own grounds, or worrying or injuring sheep, this will jus- tify the killing without any higher necessity. 11 ' If the issue is upon a right to dig and take gravel or other material for necessary repairs, the defendant must allege and prove that the repairs were necessary, and that the materials were used or in the process of being used for that purpose. If the defendant succeeds in establishing a title to that part of the premises on which the trespass was committed, he is entitled to re- cover, though he does not prove a title to the whole premises. 4 VEXATIOUS SUITS, which are in stituted maliciously, without probable cause . whereby damage has resulted to the defendant whether they are criminal prosecutions befor a magistrate or civil actions, are another clas of torts or wrongs. Such a suit need not b< altogether without foundation ; if the part whicl ' is groundless has subjected the party to an in convenience to which he would not have been exposed had the valid cause of complaint alone have been insisted on, it is injurious. 8 To make it vexatious the suit must have been in- stituted maliciously, as malice in any case of injurious conduct necessarily to be inferred fror.i the total absence of probable cause for exciting it, and in the present instance the law will not allow it to be so inferred from that cir- cumstance, for fear of being mistaken ; it casts upon the suffering party the burden of proving express malice. r It is necessary that the prose- cution should have been carried on without probable cause; the law presumes that prob- able caute existed until the party aggrieved can show the contrary, hence he is bound tc show the total absence of probable cause ; he is also under the same obligation when the origin.nl proceeding was a civil action. 11 The damage which the party injured sustains from a vexa- tious suit for a crime, as either to his person, his reputation, his estate, or his relative rights : I. Whenever imprisonment is occasioned by a malicious, unfounded criminal prosecution, the injury is complete, although the detention may i Sand. 84 ; n East. 568 ; i Camp. 41. b-3 Lev. 28 ; Cro. Jac. 45 ; i Camp. 41 ; n East. 568, 569. C-6 T. R. 748. d-8 M. & W. 381 ; 2 B. & C. 918. e-4 Taunt. 616 ; 4 Co. 14 ; i Pet. C. C. 210 ; 4 S. & R. 19, 23. f 2-Wils.307; 2 B. & P. 120 ; Carth. 417; see 5 Taurt 583 ; i Pet. C. C. 210 ; 2 Browne Apx. 42, 49 ; Addis 270. g-s Taunt. 580; i Campb. 199. fc-a Wilt, 307. 64* TORTS USAGE WEIGHTS AND MEASURES. have been momentary, and the party released on bail. 1 2. When the bill of indictment con- tains scandalous aspersions likely to impair the reputation of the accused, the damage is com- plete.! 3. Notwithstanding his person is left at liberty, and his character is unstained by the proceedings (as when the indictment is for trespass) ; k yet if he necessarily incurs expense in defending himself against the charge, he lias a right to have his losses made good. 1 If a master loses the services and assistance of his domestics in consequence of a vexatious suit, he may claim a compensation. Concerning the damage resulting from a civil action, when prosecuted in a court of competent jurisdiction, the only detriment a party can sus- tain is the imprisonment of his person, or the seizure of his property ; as to any expense he may be put to, the law contemplates that the costs adjudged fully compensate him. n It would be otherwise if the suit were brought in an improper court, and imprisonment of the person or seizure of one's property is made. Total lioss. See INSURANCE. Trade-marks. See PATENTS. Transfer. See ACTS. Translations. See COPYRIGHTS ; EVIDENCE. Transportation. See BAILMENTS, " Common Carrier*," etc. Treason. See CRIMINAL LAW. Trespass. See TORTS. Ultra Vires. See CORPORATIONS. Umpires. See AGENCY ; ARBITRATORS. Underlease. See CONVEYANCES, " Leases." Unintelligible. See CONTRACTS; CONVEY- ANCES. Unsound Mind. See MEDICAL LAW, "In- sanity." USAGE. See CONTRACTS, " Custom," " Usage." Usage of trade does not require to be im- memorial to become established; if it be known, certain, uniform, reasonable, and not contrary to law, it is sufficient. But evidence that a thing has been done in few instances does not establish usage.P The usages of trade afford ground upon which a proper construction may be given to contracts. By their aid the indeterminate intention of the parties, and the nature and extent of their contracts arising from mere implications or presumptions, and acts of an equivocal character, may be ascertained, and the meaning of words and doubtful expressions may become known/J Courts will not readily adopt these usages, because they are not unfre- quently founded in mistake.' Usury. See INTEREST. Vagrancy. See CRIMINAL LAW. Venue. See AFFIDAVIT. Vice. See ANIMALS, " Horses." ViH Major. See ACCIDENT. Voire Dire. See EVIDENCE, "Witnesses." Voluntary. See CONVEYANCES. Vouchers. See ACCOUNTS. Warehousemen. See BAILMENTS. 1-Carth. 416. J-See 12 Mod. 210; 2 B & Aid. 494 ; 3 Dowl. & R. 669. U-Carth. 416. l-io Mod. 148, 214 ; Gelf, 186. m-Hammond N. P. 275. n-4 Taunt. 7; i Mod. 4; aid. 306. o-See i Wils. 316: Carth. 189. p- 3 Watts. 178 ; 3 Wash. C. C. 150 ; i Gall. C. C. 443 ; 5 Binn. 287 ; 9 Pick. 426; 4 B. & Aid. 210; 7 Pet. i ; 2 Wash. C. C. 7. q-2 Met. (Mass.) 65 ; 13 Pick. 182 ; 2 Sumn. C. C. 569 ; 2 Gill. & J. 136; Story Ag.? 77: 2 Kent Comm. 66a (ad Ed.) ; 5 Wheat 326 ; a C. & P. Warrant of Attorney. See AGENCY, "Attor- neys at Law." Warranty. See INSURANCE, " Sales." Weight of Evidence. See EVIDENCE. WEIOHTS AND MEASURES. A MEASURE is a means or standard for com- puting amount. A certain quantity of sonu- thing taken for a unit, and which expresses a relation with other quantities of the same thing. WEIGHT is a quality in natural bodies by which they tend towards the centre of the earth. The weights now generally used in the United States are the same as those of England. The Constitution of the United States givesj .power to Congress to "fix the standard of weights and measures."* This power has never been exercised. By a resolution of Congress of the I4th of June, 1836, the secretary of the treasury is directed to cause a complete set of all weights and measures adopted as standards, and now either made or in the progress of manufacture, for the use of the several custom houses, and for other purposes, to be delivered to the governor of each State in the Union, or to such person as he may appoint, for the use of the States respectively, to the end that a uniform standard of weights and measures may be established throughout the United States.* The States possess the power to legislate on this subject, or at least the existing standards at the adoption of the constitution remain in. full force." METRIC SYSTEM OF WEIGHTS AND MEASURES. In the year 1866 the Congress of the United States passed a bill authorizing the use of a new system of weights and measures. In this system the principal denomination is the metre, from which all the other denominations in all the tables are derived. Hence, this system is called the metric system. The principal denomination for the measure of surface is the are; for the measure of capacity, the litre ; and for weight, the gram. The lower denominations in each table are tenths, hundredths, or thousandths of these; and their names are formed by prefixing deci, centi, or milli to the name of the principal de- nomination. The higher denominations are 10, loo, 1,000, or IO,OOO times the principal denomination of any table ; and their names are formed by pre- fixing deka, hecto, kilo, or myria to the name of that principal denomination. The weights and measures of this system are in general use in France, Belgium, Spain, and Portugal ; and their use has been legalized by Great Britain, Italy, Norway, Sweden, Greece, Mexico, and most of the South American gov- ernments. 525; 3 B. & Aid. 728; Park. Ins. 30; i Marsh. Ins. 186, n. 120 ; i Caines, 45 ; Gilp. 3=6, 486 ; i Edw. Ch. 146 ; i Nott. & M'Cord. 519 : 15 Mass. 433 : i Hill (S. C.) 270 ; Wright, 573 ; Pet.C.C.23o; s'Ohio, 436; i Pet. 25, 89 ; 2 Id. 148 ; 6 Id. 715 : 15 Ala. 123 ; i Hall, 612; 9 Mass. 155; 9 Wheat.- 582 ; n Id. 430. r-a Sumn. C. C. 377. S-Art. i, 8, Subdiv. 5. t-Law 1861, S. & S. Ch. 103, g 2. n-3 Story Const, ai ; Rawle Const. 102. WEIGHTS AND MEASURES. 643 METRIC STSTEM OF WEIGHTS AWD MEASURES. Table of Denominations and their Relative Values. Names of Principal Denominations. Metre. Are. Litre. Gram. Prefixes for Higher Denominations. Deka 10. Hecto 100. Kilo 1,000. Myria 10,000. Prefixes for Lower Denominations. Milli .001 of Cent! .01 of Dec! .x of Measures of Capacity o millilitres = I centilitre. o centilitres I decilitre, o decilitres = I litre. O litres = X dekalitre. o dekalitres =- I hectolitre, o hectolitres = x kilolitre, or stere. millilitre .001 litre, centilitre = .01 litre, decilitre = .1 litre. 1 litre = 1 cubic decimetre, or .908 dry quart, or 1.O567 liquid quart. I dekalitre = 10 litres, x hectolitre = xoo litres. X kilolitre or stere = xooo litres. Measures of Length. xo millimetres = x centimetre. xo centimetres = x decimetre. xo decimetres =. x metre. xo metres =. x dekametre. xo dekametres x hectometre. xo hectometres = x kilometre. XO kilometres I myriametre. x millimetre = .001 metre. i centimetre = .01 metre. x decimetre = .1 metre. 1 metre = 39.37 inches. X dekametre _ xo metres. i hectometre = 100 metres. I kilometre = x,ooo metres. x myriametre 10,000 metres. Measures of Surface. xoo centares = x are. xoo ares I hectare. x centare = .ox are. 1 are = 1OO square metres, or 119.6 square yards. x hectare = xoo ares. Weight. XO milligrams = I centigram. xo centigrams = I decigram. xo decigrams = I gram. xo grams =. x dekagram. xo dekagrams = I hectogram. xo hectograms = I kilogram. XO kilograms or kilos = I myriagram. xo myriagrams = I quintal. XO quintals = X millier, or tonneau. I milligram = .001 gram. I centigram = .01 gram. I decigram = .1 gram. 1 gram - 15.432 grains. I dekagram = xo grams. X hectogram = xoo grams. 1 kilogram or x kilo = 1OOO grams, or 2.3046 pounds. I myriagram = 10 kilos. x quintal = xoo kilos. x millier 1,000 kilos. OKI1 X A H V STSTEM OF WEIGHTS AND MEASURES. Angular Measure or 1M vision of a Circle. 60 seconds = x minute. So minutes = X degree. p> degrees = x sign. 90 degree* => x quadrat. 360 degrees or 13 signs = X circumference. Apothecaries' or Pharmaceutists* Measures, etc. 60 minims (M) = I fluid-drachm, f 5 8 f 3 = i fluid-ounce, f ^ x6f^ = * pint, O 8 O = x gallon, C When Roman numerals are used after the signs to which they relate : thus g 7 = x drachm ; ). See MEASURES, above. Avoirdupois Weight. For Butter and Cheese. 3 pounds = I clove. 56 pounds = I firkin. In most Commercial Transactions and Common Dealings among Individuals. 37^ grains = I drachm. 16 drachms = I ounce (oz). 16 ounces = X pound (Ib.) 1 pound = 7OOO troy grains, U. S. Standard. 35 pounds and 38 pounds = I quarter (qr.) 4 quarters = I hundredweight (cwt.) 30 hundredweight = I ton. For Fish and Meat. 8 pounds = I stone. For the Wool Trade. 7 pounds = i clove. 14 pounds = I stone. 2 stones = I tod. 6 % tods = x wey. 3 weys = I sack. 12 sacks = i last. Troy Weight. These are the denominations of troy weight when used for weighing gold. silver,and precious stones, except dia- monds. Troy weight is also used by apothecaries in com- pounding medicines ; and by them the ounce is divided into eight drachms, and the drachm into three scruples, so that the latter is equal to twenty grains. For scien- tific purposes the grain only is used, and sets of weights are used constructed in decimal progression from 10,000 grains downward to one-hundreth of a grain. The carat used for weighing diamonds is three and one-sixth grains. 24 grains = I pennyweight. 30 pennyweights = I ounce. 1 ounce = 4SO grains, U. S. Standard. 13 ounces = I pound. 1 pound -- 5,76O grains, U. S. Standard. Wharfinger. See BAILMENTS. Wife. See ACTS; MARRIAGE. Wild. See ANIMALS. Will. See CONVEYANCES, " Wills." Witness. See EVIDENCE. Wounds. See MEDICAL LAW. Writings. See AGENCY; BILLS, BONDS, AND NOTES; BONDS OR OBLIGATIONS; CONTRACTS; CON- VEYANCES, ETC., ETC. Wrongs. See TORTS. Young 1 . See ANIMALS. PART II. COLLECTION OF CLAIMS, DEBTS AND DEMANDS. WHEN a claim, debt or demand is due or overdue; when payment is unreasonably de- ferred or refused ; when satisfaction can only be had by aggressive action on the part of the creditor, it becomes necessary for him to in- quire into the various methods of collecting or securing such claim, etc. x. Amicable adjustment of Claims, Debts and Demands by parties. As be- tween parties a claim may be satisfied, paid or adjusted in any manner, as by part payment, services, goods, etc., etc. It may also be secured in various ways, by note of hand ; by note of hand with a sufficient indorser; by an order on and accepted by a third responsible party; by a mortgage, pledge, etc., etc. 2. Arbitration by third persons when a Claim, Debt or Demand is disputed. When parties are unable to adjust claims, debts or demands between themselves, and wish to avoid the expense and incident of a suit at law, they may agree upon a person or persons before whom to submit ths points of contro- versy, and abide his or their decision. See INDEX. Arbitration. 3. Action or suit to recover or defeat a Claim, Debt or Demand. Whether the de- mand, debt or claim be disputed or not, it is often necessary to commence an action or suit for its recovery, to which suit a legal defence, set-off or counter-claim must be interposed, or judgment will be obtained so far as far as the demand, etc., is proved, often for the amount (sometimes unjustly) claimed. Where the parties are in the same neighborhood, or at a convenient distance, the matter may be at- tended to personally or by agent or attorney. Where they reside or do business at a dis- tance from each other, this must be done through agents or attorneys. In the latter case, the following forms of correspondence may be observed by the creditor : Letter of Inquiry. Place , Date- -,18 . A. Y., Esq., Attorney-at-law, at ,in , in county. State of . Dear Sir: I herewith enclose you a copy of an account*"" note, or other evidence of debt (naming it}, in my favor and against D. R. , of , engaged in yttaie business} at , in your city for county). Be kind enough to state your terms and prospect of Collection, and oblige yours, etc., C. R. Order to Collect. Place , Date , 18 . A. Y. , Esq. , Attorney-at-law, at , in , in county, State of Dear Sir : Please collect the enclosed (account or note, etc.; in my favor and against D. R., and remit the same, less your fees, as per terms stated in your note of , inst.: Providing, That if the same is found to be worthless, that it be returned to me without charge, Yours, etc., C. R. ( When security for costs is required add :) Enclosed find $ , as per your request, to pay cost in advance (or to secure the costs of this ' WHAT COURTS TO SUE IN. Justices' Courts afford a simple and speedy means of collecting small claims and demands without delay, and their judgments are, when fiied in the office of the clerk of the prope~ court, as efficient a lien of the debtor's real estate, as the judgment of a court of record. This is a simple and inexpensive mode of ob- taining a judgment and lien. The proceedings of courts of general jurisdiction are more di- rect, and must be resorted to for the collection of large claims and enforcing general remedies. When an Action or Snit May be Com- menced. Limitation. By the common law, a party who had any legal ground of complaint against another, might compel him to answer in a court at such time as suited his convenience. This privilege was not only productive of incon- venience, but often of great injustice. Parties might, and often did, wait till witnesses were dead, or papers destroyed, etc., and then pro- ceed to enforce claims which at an earlier date might have been honestly defeated. To pre- vent these evils, insecurity in title, uncertainty of tenure of property, and fruitful subjects of litigation, statutes were passed, limiting the time within which a party having a cause of action should appeal to courts for redress. These statutes are called Statutes of Limita- tion. When Costs are Required in Advance. Costs. The object of requiring security for costs in any case is, that the defendant may have some responsible party within the juris- diction of the court to whom he can look for the payment thereof in the event he succeeds in the action or suit (15 Wis. 54). When security (64$) 6 4 <3 COLLECTION OF CLAIMS, DEBTS AND DEMANDS. for costs is required, a fee should accompany the claim, so that the costs may be secured by resident surety or paid at the commencement of the action or suit. Process in an Action or Suit. In a Suit or Action a Summons notifies the defendant to appear at a certain time and place to answer whether he owes the debt or not, and if he has a set-off or defence, to then present it. An Order of Arrester Capias compels him not only to answer the debt, but also the acts of fraud in contracting or afterwards trying fraudu- lently to cheat his creditor out of his dues, and may also commit him to prison. An Order of Attachment effects the seizure of such goods and property as can be found. Garnishee or Trustee Process effects a discovery of goods, debts, effects, etc., etc., in the hands of outside or third parties, and compels their delivery of the same to satisfy such judgment as may be obtained. Judgment, Execution, etc., are noticed above and below. Arrest and Imprisonment for Debt. Arrest and Imprisonment for Debt are proceedings of so summary a character that few persons of responsibility will risk either with- out the strongest evidence to support the one, or as a last means of obtaining satisfaction of a judgment through the other. Arrest is allowed in many of the States, but only in cases of fraud; fraud in obtaining goods, moneys, etc., or fraudulently secreting, selling, removing his property to avoid the payment of just debts, etc., etc. Imprisonment for debt is, with a few exceptions, generally abolished. The proceedings are generally as follows : An affidavit is made by the creditor, his agent, or attorney, charging the debtor with the acts of fraud, etc. A bond is given by the creditor to indemnify the debtor if his arrest should be wrongful, etc. A writ is then issued for the apprehension of the debtor. When arrested, the debtor is brought before court to answer the charges of fraud, which, if proved, justify his imprisonment until he gives up the goods, property, etc., or is lawfully discharged from confinement. Attachment, Garnishment, Trustee Process. Attachment, Garnishment, Trustee Process, etc. (i. e., seizing goods or property of the debtor either before, during, or after the suit), is common to every State. Attachment Proper is seizing either goods or property of the debtor for the debt, where he is charged with fraudulently concealing, selling or removing, etc., of them. Garnishment, Trustee Process, etc., is as follows : D owes C a debt, D has no property of his own, in his own hands or possession, but some one else has, or is indebted to him. C discovers this, and as an attachment proper could only take property of D, in D's own hands, or some place where it could be come at directly, C must resort to some other process. This is called a Garni- shee or Trustee Process that is, a writ which compels this outside party to come into court and tell what he has, holds, controls, or owes to D, and to deliver it over to the officer hold- ing the garnishee or trustee writ, that it may be used to satisfy the creditor's claim or de- mand. The Trial of an Action or Suit and its Incidents. See below. The Nature and Kffect of a Judgment. Judgments, once obtained, are evidence to the whole world of the facts they contain they cannot be impeached or disputed. The only way to affect them is to pay or satisfy them. They may be transferred from one county to another, from State to State, from country to country, and from court to court ; they always face the debtor, and are always ready for any excess over and above the exemptions allowed by law. They gradually increase by the addi- tion of interest. COURTS ANI> PARTIES APPEARING THEREIN, etc. Judges and Officers of Courts. A judge or justice cannot sit or act in cases where he is a party, or is interested, or where he is related to either party by consanguinity or affinity. A judge or justice cannot practice in his own court. A judge or justice will not have a partner practice in his own court. A judge or justice will not take part in a trial when his partner is attorney or counsel therein. A judge or justice will not have a voice in decisions where he has been attorney or counsel. Partners of clerks of judges or Court officers do not practice before their judges. Clerks of Courts and other ministerial officers do not practice as attorneys in their own courts. Courts are always open to the public. Legal Proceedings. Legal Proceedings must be in the English language, without abbreviation; numbers may be expressed in figures. A party may always appear in person or by attorney. Any person of full age and sound mind, may prosecute or defend any action or suit of his own, or any defense against an ac- tion or suit brought against him by another, in any court or tribunal. Any person of good moral character, although not an attorney, may manage, prosecute, or de- fend the suit of another person, if he is speci ally authorized to do so by the party for whom he appears. This authority may be by request when in court, or by written authority when the party suing, or sued, is absent. Costs of suit generally fall, upon the losing party; whatever costs have been prepaid are included in the bill of costs, COLLECTION OF CLAIMS, DEBTS AND DEMANDS. 647 WHERE TO COMMENCE AN ACTION OR SUIT. An action or suit must be brought before a court or judge or justice, who has a right to and can legally hear and determine it, otherwise his judgment would be like that of any other per- son without authority. For example : 1. A justice of the peace has the right and authority to hear and determine actions or suits upon accounts, bills, bonds, contracts, judg- ments, notes, etc., etc., as well as for damages in some instances, and many other things, up to a certain sum or amount, beyond which he cannot lawfully go, even though the parties to the suit agree that he may ; for the law has said what he shall do, and this is his only authority. On the other hand justices of the peace cannot sit to try the title to land, suits for slander, libel, breach of marriage contract, etc., for they have no authority by law to do so, and, besides, they are specially prohibited by law from trying suits of this character. 2. The justice having the right and author- ity to try the matter, in order to exercise it upon application of a party suing, must bring the party required to answer before him ; this is done by a summons, and in suits before justices it is often absolutely necessary to sue a person in the same town or township in which he re- sides, though generally he riiay be sued any- where in the county. Parties may, however, appear before any justice or court, and in any county, township or place they choose, and there submit their controversy. How to Commence an Action or Suit. An action or suit may be commenced by volun- tary appearance and agreement of parties, or by legal processes issued at the instance and request of the party complaining. 1. If by agreement the parties appear before the court or justice, and submit their contro- versy, with such evidence as they may require or present, and the court or justice decides such controversy, and so enters his judgment upon his docket or record, and judgment stands and execution issues, in the same manner as in an ordinary action or suit. 2. When by legal process. Upon application (and filing one's account, bill, bond, claim, de- mand, note or other " cause of action," which is called a "complaint," " statement of demand," " bill of particulars," etc., etc., according to the custom of the court), a summons is issued and directed to the constable or other officer, who serves it upon the party complained of, who is called the defendant. This summons com- mands the defendant to appear before the court or justice at a certain place and time, to answer the plaintiffs demand {describing it), and to set up whatever defense he may have to it. In addition to the summons (which is merely a notice to appear and answer), there are cases NOTB. The plaintiff's demand or cause of action *hould be given to the court o justice to be filed, when he obtains his summons. The defendant's set-off or defence should be given to the court or justice when he appears on the day of trjal or by his evidence, in which the defendant may be arrested, and also cases where his goods and effects may be attached, and also the money and property due him from persons indebted to him or having such property, may be taken or retained. These forms of process are described under ARREST and ATTACHMENT above. Witnesses may be compelled to attend and give their evidence. The party desiring their evidence should give their names to the court or justice and request him to subpcena them for the trial ; and if they fail to attend, he should request the court to compel their attendance, which is done by attaching them and bringing them forcibly into court, there to answer for their contempt or excuse it, and give their evi- dence in the case as well. Every person offered as a witness must be affirmed or sworn before giving any testimony. How to Try an Action or Suit. On the day of trial the party may conduct his own suit or defense, or have ah attorney or other competent person do so for him. If a party is under twenty-one years of age, he must sue or defend by guardian or next friend. (The court will attend to this upon the suggestion of any person.) All parties should be in prompt attendance at the time fixed for trial (and in no event later than within one hour thereafter, though in some cases this will be too late) Trial by Jury. If a jury is desired\yy either party, such party should request it of the court or justice, who issues a summons or venire for the number of jurors required by law or agreed on by the parties. When it is time for the jurors to appear their names are called out by the officer, and they are seated togethe; and sworn for the purpose of ascertaining their competency to sit in the case. If there are persons upon the jury that a party would rather dispense with, he can re- quest the court or jusUce to excuse them from serving. The number of objections are limited, and therefore a party should discreetly choose the most objectionable persons first. The jury will then be sworn by the court or justice, and hear the proofs and allegations of parties, and after the court's remarks or charge, if there be any, they retire and agree upon their verdict, and return it to the court, and the court thereupon gives judgment accordingly. Trial by the Court. If a jury is not desired by either party, the parties, if present, submit their proofs by wit- nesses or other testimony, and make whatever argument they wish to, and thereupon the court or justice finds for the party having, in his ' opinion, the preponderance or greater weight of evidence to support his side of the case, and renders and enters judgment accordingly. Tbe Law and Evidence. For points in the various subjects concerning ACCOUNTS, BILLS, BONDS, NOTES, EVIDENCE, CONTRACTS, etc., etc. See INDEX TO 6 4 S COLLECTION OF CLAIMS, DEBTS AND DEMANDS. Incidents to the Trial by the Court or a Jury. If the defendant, being served with a sum- mons, neglects to appear, the court or justice will proceed to hear the proofs of the plaintiff, and give judgment thereon. The plaintiff's account, bill, bond, claim, de- mand, note, or other cause of action, and de- fendant's matters of defense, when required by the law, the court or justice or plaintiff, being filed and their substance or copy entered by the justice on his docket or record, the plaintiff proceeds and proves his account, demand, etc., by such proofs as is necessary, and the defend- ant, on the close of the plaintiff's evidence, produces his proofs, in case he has any, to de- feat, lessen, or modify the plaintiff's demands or charges against him. When a defendant establishes a set-off equal or exceeding the plaintiff's claim, judgment will be rendered in his favor, and also for the costs of this suit. But if it be for less than the plain- tiff's claim, the plaintiff will have judgment for the residue and also for costs. When the defendant's defense defeats the plaintiff's claim only, judgment will be in the defendant's favor for costs. If the plaintiff fails to appear on the day of trial, the case may be dismissed with costs ; and if the defendant have a set-off, this may be proven and judgment obtained. If the defendant fails to appear on the day of trial, the plaintiff will take judgment for so much of his claim as he proves, for the full amount often, although it really exceed his just dues. Adjournments. A trial may be adjourned for a reasonable time by consent of parties, or on the applica- tion and oath of a party, on sufficient cause, as, the absence of a material witness or testimony, etc., but the application should be made before proceeding to trial. Judgment. Judgment may be rendered upon the admis- sion or confession in person by the defendant, or upon being established by competent wit- nesses. Judgment may also be rendered by dismiss- ing the case without affecting its merits in any way ; this occurs where a plaintiff fails to ap- peal- at trial, or at the time to which the case is adjourned, also when the plaintiff discontinues or withdraws his action. In such case the judg- ment is for costs only. Execution, etc. Execution follows upon judgment, in favor of the successful party in the action. It may issue at once, in a few days, weeks, or months, at the option of the party succeeding in thesufr- After a time (generally defined by law) from tha date of serving the last execution, the judgment, in general, must be revived before an execution can issue. EXECUTION is of four kinds : 1. Against the goods and chattels of the debtor. 2. Against the lands and tenements of the debtor. 3. Against the body of the debtor. 4. Against all or either goods, chattels, lands, tenements, and the body of the debtor. THE FIRST MAY BE EFFECTUAL by an imme- diate issue and levy upon what goods may be found, and may be further assisted by the attach- ment, garnishee, or trustee process. It may be defeated by the exemption law, assignment or insolvency law, or the corrupting of the officer who serves it. THE SECOND is MADE UNNECESSARY by hav- ing a transcript of the judgment filed in the office of every clerk of a court of record of every county wherein the judgment debtor has lands, in the State where this judgment was rendered. (Executions must then be issued, within say years different times indiffer- ent States or the judgment will cease to be a lien upon the real estate.) If judgment is rendered in another State, then, in order to have it effectual in this State, suit must be brought on it, and then upon judg- ment on such judgment, a filing of transcripts in the offices of clerks of courts of record in each county where the debtor has lands, effects a lien as above s'ated, wherever filed. THE THIRD IS ALLOWED IN CASES OF FRAUD. FOURTH. Execution also issues against goods, chattels, lands, tenements and effects of the debtor. It also issues against goods, chat- tels, lands, tenements (and the body of the deb- tor, whenever fraud is shown). See ARREST above. SUMMARY OF COLLECTION LAWS IN THE UNITED STATES. Against Estates of Deceased Persons. See title " Limitations, "post. Assignment and Insolvency. See that title, post. Exemption Laws. See that t!tie,>rf. Interest upon Money. See that title, post. Limitation of Actions or Suits. See that title, post. ALABAMA. In general. A claim, debt or demand for less than $100 may be collected in a Justice's Court, except for torts, when jurisdiction is limited to $50, appeals may be taken to Cir- cuit Court. Arrest or Imprisonment for debt is uol allowed. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or suit dismissed, where plaintiff is a Non- Resident. It is at least 20 Days between the service of summons on the Debtor and obtaining of judgment in the Circuit Court, and 3 Days in Justices' Courts. Execution may issue in the Circuit Court immediately after adjournment of court, and in Justice's Court in 5 Days, unless such execu- tion is stayed. Such stay is allowed in Jus- fices' Courts. The judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the Circuit Court of the county wtiere rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only after levy- ing of an execution. ARIZONA. In general. A claim, debt or demand for less lhan $100 may be collected in a Justice's Court when title to real estate is not involved. When over $100 in the District Court. Arrest and Imprisonment for debt is not allowed, except in cases of fraud. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance when the plaintiff is a non-resident, or a foreign corporation if required by the defendant, or the suif will be dismissed. It is at least IO to 40 Days between the service of summons on the Debtor and obtain- ing of judgment in the District Court, and 3 Days in Justices' Courts. Execution may issue at any time after entering of judgment, unless such execution is stayed. The Judgment of n Justice of the Peace t when a transcript thereof is filed in the office of the Clerk of the District Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon the levy of an execution. ARKANSAS. In general. A claim, debt or demand for less than $300 may be collected in a Justice's Court. When over $100 in the Circuit Court. Arrest and Imprisonment for debt is not allowed, except in cases of fraud. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured by non-resi- dents in advance, or the suit will be dismissed. It is at least IO Days between the service of summons on the Debtor and obtaining of judgment in the Circuit Court, and 5 Days in Justices' Courts where the amount does not exceed $50. Execution may issue in the Circuit Court after entering of judgment, and in Justice's unless such execution is stayed. The judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the Circuit Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon levy of an execution. CALIFORNIA. In general. A claim, debt or demand for less than $300 may be collected in a Justice's Court, and when over $300 in the Superior Court. Arrest and Imprisonment for debt is not allowed, except in cases of fraud or intended removal from State. Attachment is allowed against Non Resi- dents, ard against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs cf suit must be secured in advance when the plainMn is a non-resident, or a foreign corporation wher. required by the defendant, or the suit will he dismissed. It is at least IO to 60 Days between the service of summons on the Debtor and obtain* ing of judgment in the Superior Court, and 5 Days in Justices' Courts. Execution may issue from the SuperiorCourt after entering of judgment. 6 5 o COLLECTION OF CLAIMS, DEBTS AND DEMANDS. The Judgment of a Justice of the Peace, when an abstract thereof is filed and recorded in the office of the Recorder of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only on levying of an execution. COLORADO. In general. A claim, debt or demand for less than $300 may be collected in a Justice's Court. When less han $2,000 in the County Court. When ove* $300 in the District Court. Arrest or Imprisonment for debt is not allowed, except ir> cases of fraud. Attachment >* allowed against Non-Resi- dents, Foreign Corporations, and against Debt- ors in cases of ^aud, whether the debt is due or not. Parties to &>t suit, or interested therein, are competent Witnesses. Costs of s'iit must be secured in advance, or the suit ^iU be dismissed. It is at ka"it i o to 40 Days between the ser- vice of summons on the Debtor and obtaining of judgment in the District or County Court, and 5 to 15 Days injustices' Courts. Execution may issue in Justices', County and District Courts after entering of judgment. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Recorder of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon per- sonal property only upon levy of an execu- tion. CONNECTICUT. In general. A claim, debt or demand for less than $100 may be collected in a Justice's Court. When less than $500 in _ Hartford, New London and Fairfield counties, and less than $ 1,000 in New Haven county, in the Common Pleas Court. City Courts also vary in jurisdiction. The Superior Court is not lim- ited in amount. Arrest and Imprisonment for debt is allowed in cases of fraud and torts. Attachment is allowed. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 12 Days between the service of summons on the Debtor and obtaining of judgment in the Superior, Common Pleas, or District Court, and 6 Days in Justices' Courts. Execution may issue in any Court after en- tering of judgment. The judgment is a lien upon personal property only upon levy, and upon real estate upon filing certificate of record. The latter may be foreclosed as a mortgage. DAKOTA, NORTH. In general. District Courts have un- limited jurisdiction ; Justices' Courts where amt. is not over $200, and no realty in dispute. Arrest and Imprisonment for debt is not allowed, except in cases of fraud. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance if demanded, or the suit will be dismissed. It is at least 30 Days between the service oS summons on the Debtor and obtaining of judg- ment in the District Court, and 3 Days in Jus- tices' Courts. Execution may issue in District and Jus- tices' Courts after entering of judgment. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the District Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment i? a lien upon personal property only upon levy of an execution. DELAWARE. Ill general. A claim, debt or demand for less than $200 may be collected in a Justice'* Court. When over $200 in the Superior Court. Arrest for debt is allowed in cases of fraud. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties interested in the suit, or non-resi dents, are competent witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least six Days between the service oi summons on the Debtor and obtaining of judg- ment in the Supreme Court, and I to 15 Days in Justices' Courts. Execution may issue after entering of judg- ment. The judgment recovered in a Superior Court, from the time of entry is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon the levy of an execution. DISTRICT OF COLUMBIA. In general. A claim, debt or demand for less than $ 100 may be collected in a Justice's Court. When over $50 in the Supreme Court of the District. Arrest or Imprisonment for debt is not allowed. Attachment is allowed against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance in Justices' Courts, or the suit will be dismissed, and so on demand in Circuit Court. It is at least 20 Days between the service of summons on the Debtor and obtaining of judg- ment in the Supreme Court, and 5 Days in Justices' Courts. Execution may issue in the Supreme Court after entering of judgment, and in Jus- tices' Court in 4 Days, unless such execution is stayed. Such stay is allowed in Justices' Courts only. COLLECTION OF CLAIMS. DEBTS AND DEMANDS. 6 5 IT* Judgment of a Justice of the Peace, vfhf.n an abstract thereof is filed in the office of the Clerk of the Circuit Court of the county where rendered, execution will issue upon the Debtor's real estate in such county. The judg- ment is a lien upon personal property only upon levy of an execution. FLORIDA. In general. A claim, debt or demand fc>r less than $100 may be collected in a Jus- tice's Court. The Circuit Court is unlimited. Arrest for debt is not allowed. Attachment is allowed against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 10 Days before time, exclusive of rule day afterward, between the service of summons on the Debtor and obtaining of judgment in the Circuit Court, and 10 Days in Justices' Courts. Execution may issue in any Court after en- tering of judgment. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the Clerk's office of the County where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon levy of an execution. GEORGIA. In general. Less than $100 may be collected in a Justice's Court. Not less than $50 nor over $300 in a County Court. The Superior Court has general jurisdiction. Arrest for debt is not allowed. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance only when demanded. It is at least 15 Days between the service of ummons on the Debtor and obtaining of udgment in the Superior Court, in Savannah City Court 10 Days, Atlanta City Court 15 Davs. and 10 Days in Justices' Courts. Execution may issue in any Court after entry of judgment, unless stayed. Judgment is general property of Defendant, except choses in action, and on these from date of levy. Judgment in Justice's Court must be recorded in office of Clerk of Supreme Court in 10 Days. IDAHO. In general. A claim, debt or demand for less than $300 may be collected in a Justice's Court. When $500 or less in the Probate Court. When over $ 1,000 in the District Court. Arrest and Imprisonment for debt is allowed in cases of Iraud. Attachment is allowed against Non- Resi- dents, and against Residents in case of un- secured contract debts. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 10 to 30 Days between *.he service of summons on the Debtor and obtain- ing of judgment in the District Court, and 3 Days in Justices' Courts. Execution may issue in any Court after en- tering of judgment. The Judgment of a Justice of the Peace, when an abstract thereof is filed and recorded in the office of the Clerk of District Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon levy of an execution or attachment. ILLINOIS. In general. A claim, debt or demand for lc-< than $200 may be collected in a Justice's Court Wtun less than $1,000 in County Court The Circuit Cuiirt.-- are unlimited Arrest and Imprisonment for debt is allowed in cases of traud. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 10 Days between the service of summons on the Debtor and obtaining of judgment in a Court of Record, and 3 Days in Justices' Courts. Execution may issue from Courts of rec- ord any time after entering of judgment, and in Justice's Court after 20 Days, except in special emergencies. The judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the Circuit Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon per- sonal property only upon levy of an execution. INDIANA. In general. A claim, debt, or demand for less than $200 may be collected in a Justice's Court. The Circuit Courts are unlimited. Arrest for debt is not allowed except in cases of actual fraud. Attachment is allowed against Non-Resi- dents, and Debtors concealing themselves so that service cannot be had on them when the debt is due. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or suit dismissed, in Circuit Court if plaintiff is a Non-Resident of State, or in Justice's Court if plaintiff is Non-Resident of the county. Costs not required to be secured in other Courts. At least 10 Days in Circuit and 3 in Justice's Court must intervene between summons and judgment. In Justices' Courts execution may issue, unless stayed, in 4 to 10 Days after judgment. A transcript of a Justice of the Peace judg- ment, filed in Circuit Court of any county, is ' a lien on Debtor's real estate in said county. 6 5 a COLLECTION OF CLAIMS, blT.TS ANfo DEMAhlbS. A judgment is a lien on personalty only from the time execution comes into the hands of the officer. IOWA. In general. A claim, debt or demand for less than $100 may be collected in a Jus- tice's Court; by consent, $300. The District and Circuit Courts have unlimited jurisdiction. Arrest and Imprisonment for debt is not allowed, except in cases of fraud, and in proceedings supplemental to execution. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit, when plaintiff is a Non-Resi- dent may be secured in advance, in Courts of general jurisdiction, when required, or the suit will be dismissed not in Justices' Courts. It is at least 10 to 20 Days between the service of summons on the Debtor and obtain- ing of judgment in the District and Circuit Courts, and 5 to 15 Days in Justices' Courts. Execution may issue in any Court after en- tering of judgment, unless such execution is stayed. The Judgment of a Justice of the Peace, of the U. S. District and of the U. S. Circuit Court, when a transcript thereof is filed in the office of the Clerk of the State District Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon levy of an execution. , KANSAS. In general. A claim, debt or demand for less than $300 may be collected in a Jus- tice's Court. The District Court is unlimited. Arrest for debt is not allowed except in cases of fraud. Attachment is allowed against Non- Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least IO to 60 Days between the service of summons on the Debtor and obtain- ing of judgment in the District Court, and 3 to 12 Days in Justices' Courts. Execution may issue in any Court after en- tering of judgment, unless such execution is Stayed. The Judgment of a Justice of the Peace, when an abstract or transcript thereof is filed in the office of the Clerk of the District Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The \udgment is a lien upon personal property only upon levy of an execution. KENTUCKY. In general. A claim, dent or demand fear less than $100 may be collected in a Jua- tice's Court in any county in the State. In Quarterly Courts when less than $200. The Circuit Courts are unlimited (except where jurisdiction is given exclusively to another Court). Arrest and Imprisonment for debt i allowed in cases of fraud. Attachment is allowed against Non-Resi- denls, Foreign Corporations, etc., and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 10 to 60 Days between the ser- vice of summons on the Debtor and obtaining of judgment in the Circuit Court, and 5 Days in Justices' Courts. Execution may issue in 10 Days after en- tering of judgment, unless such execution it stayed. The Judgment of the Circuit Court is a Hen upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upoi: levy of an execution. LOUISIANA. Ill general. Justices' Courts and in New Orleans city Courts have jurisdiction where claim is not over $100. District and Justices' Courts concurrent in claims over $50 and less than $100, in New Orleans, and in State the District Court has exclusive jurisdic- tion in claims over $100. Arrest for debt is allowed only to se- cure the person of the Debtor to answer he suit. Attachment is allowed againet Debtors in cases of fraud, whether the debt is due 01 not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 10 Days between the service of summons on the Debtor and obtaining of judgment in the District Court, and 5 Days in Justices' Courts. Execution may issue in the District Court in 3 to 10 Days after entering of judgment, and in Justice's Court in 3 Days, unless such execution is stayed. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the officn of the Clerk of the District Court of the county where rendered, is a lien upon the Debtor*! real estate in such county. The judgment is a lien upon personal property only upon levy of an execution. MAINE. In general. A claim, debt or demand for less than $20 may be collected in a Jus- tice's Court. When in Cumberland and Ken- nebec counties for $20 to $500 in the Superioj Court. When over 500 in the Supreme Ju dicial Court. COLLECTION OF CLAIMS, DEBTS A\'l> l;liMANt>8. 6*3 Arrest and Imprisonment for debt is not allowed on debts contracted since April 18, 1887. Attachment allowed in cases of fraud, whether debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. In Justices'and Municipal Courts 7 Days must intervene between service of summons and judg- ment; in the other Courts, 14 Days. Corpora- tions must have 30 Days' notice in all Courts, either as trustees or principal defendants. Execution may issue in any Court in 24 hours after judgment, unless stayed by appeal. Judgment is a lien on personalty only upon jvy. MARYLAND. Ill general. A claim, debt or demand for less than JjUoo may be collected in a Justice's Court. When over $100 in the Superior Court of Baltimore, Court of Common Pleas and Baltimore City Court. When over $50 in the Justice of the Peace and Circuit Courts of counties having concurrent jurisdiction. Arrest or Imprisonment for debt is not allowed. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is about 7 to 15 Days between the service of summons on the Debtor and obtaining of judgment in various Courts, and 6 to 14 Days in Justices' Courts. Execution may issue in any Court after en- tering of judgment, unless such execution is stayed. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the Circuit Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon levy of an execution. MASSACHUSETTS. In general. A claim, debt or demand for less than $1,000 may be collected in Mu- nicipal, District and Police Courts; and in the Boston Municipal Courts. When over $20 in the Supreme Judicial Court, or Superior Courts. Arrest or Imprisonment for debt allowed if Debtor is known to have property which he will not apply in payment. The poor debtor's oath when taken (voluntarily or by permission of the court), exempts the debtor from imprisonment, or releases him if in custody. Attachment is allowed in all cases on commencement of suit ; any creditor may at- tach first and prove his debts, etc., afterwards. Parties to the suit, or interested therein, are competent Witnesses. Costs of suits must be secured in advance by Non-Residents, or the suit will be dismissed. It is at least 14 Days between the service of summons on the Debtor and obtaining of judgment in the Su- preme, Judicial or Superior Court do Days is given to appear and 30 Days to file an answer), and 7 to 60 Days in Justices' Courts. Execution may issue in the Supreme Judi- cial or Superior Court on the 1st Monday of the month after entering of Judgment, and iv Justices' and other Courts in I Day, unless such execution is stayed. The judgment is a lien upon personal prop, erty only upon levy of an execution. MICHIGAN. In general. A claim, debt or demand for less than $300 may be collected in a Justice's Court. When over $100 in the Circuit Court. Arrest and Imprisonment for debt is allowed in cases of Iraud and breach of trust. Attachment is allowed against Non-Resi- dents and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit in Circuit Courts must be secured in advance where plaintiff is a Non- Resident, or the suit will be dismissed. It is at least 10 to 19 Days between the ser- vice of summons on the Debtor and obtaining of judgment in the Circuit Courts, and 6 Days in Justices' Courts. Execution may issue in any Court after en- tering of judgment, unless such execution is stayed. A transcript of a Justice's Judgment with security for stay of execution may be filed in the Circuit or District Court Clerk's office, and will then have the same effect as a judgment of such Circuit or District Court. The judgment is a lien upon property only upon levy of an execution. MINNESOTA. In general. A claim, debt or demand for less than $100 may be collected in a Jus- tice's Court. The District Court is unlimited. Arrest and Imprisonment for debt is not allowed. Attachment is allowed against Non-Resi- dents, Foreign Corporations, etc., and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 20 Days between the service of summons on the Debtor and obtaining ot judgment in the District Court, and 6 to 20 Days in Justices' Courts. Execution may issue in the District Court at once after entering of judgment, and in Jus- tice's Court in 10 Days, unless such execution is stayed. The Judgments of United States Courts, Cir- cuit Courts of other counties, and Justices of the Peace, when a transcript thereof is filed in the office of the Clerk of the District Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judg- ment is a lien upon personal property only upoq levy of an execution. MISSISSIPPI. In general. A claim, debt or demand for less than $200 principal may be collected in a Jus? ice<' Court. When over $200 in the Circuit Court. COLLECTION OP CLAIMS, t)6bfs AND DEMANDS. Arrest or Imprisonment for debt is not allowed. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 5 Days between the service of summons on the Debtor and obtaining of judg- ment in the Circuit Court, and 5 Days in Justices' Courts. Non-Residents may be summoned by 3 weeks' publication. Execution may issue in any Court after en- tering of judgment, unless such execution is stayed. Such stay is allowed in Justices' Courts only. Judgments, whether rendered in Justice of (he Peace or Circuit Courts, when properly enrolled, are a lien in order of enrollment, and from the date thereof, on all of debtor's property, not otherwise exempt. Code 1892, Sees. 757 and 2413. MISSOURI. In general. Justices' Courts have juris, diction in cities or counties with over 50,000 population, in cases where claim is not over 5joo exclusive of interest ; in replevins, $350; in other cities and counties, $250. Circuit Court has unlimited jurisdiction in cases ex- ceeding $50. In some counties Common Pleas Courts concur with District Court. Arrest or Imprisonment for debt is not allowed. Attachment is allowed against Non-Resi- dents, Foreign Corporations, and against Debt- ors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 15 Days between the service of summons on the Debtor and obtaining of judgment in the Circuit Court, and 10 Days in Justices' Courts. Execution may issue in any Court nfter en- tering of judgment, unless such execution is stayed. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the Circuit Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment of the Circuit Court is a lien upon personal prop- erty only upon levy of an execution of a Jus- tice's Court when delivered to the constable. MONTANA. In general. A claim, debt or demand for less than jjSioo may be collected in a Jus- lice's Court. When over $50 in the District Court. Arrest for debt is allowed in cases of fraud. Attachment is allowed where debt is due, and where defendent is about to leave State or dispose of his property to defraud creditors. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance of Non-Residents and Foreign Corporations, or the suit will be dismissed. It is at least 10 to 40 Days between the ser- vice of summons on the Debtor and obtaining of judgment in the District Court and 4 to 10 Days in Justices' Courts. Execution may issue in any Court after entering of judgment. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the District Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon levy of an execution. NEBRASKA. Ill general. A claim, debt or demand for less than $2oo may be collected in a Justice's Court. When over $100 and less than $1,000 then in the County Court. When over $50 ui the District Court. Arrest for debt is allowed in cases of fraud. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 10 to 30 Days between the ser- vice of summons on the Debtor and obtaining of judgment in the District Court, and 3 to 12 Days in Justices' Courts. Execution may issue in any Court after en- teri:iy a Non-Resident of the State, must be secured in advance, if demanded by the defendant, or the suit will be dismissed. It is at least 20 to 60 Days between the ser- vice of summons on the Debtor and obtaining of judgment in the Superior Court, and 6 to 20 Days in Justices' Courts. Execution may issue in any Court after entering of judgment, unless such execution is stayed. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the Coun- ty Clerk's office of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon levy of an execution. WEST VIRGINIA. In general. A claim, debt or demand for less than $300 may be collected in a Jus- tice's Court. When over $50, in the Circuit Court. Arrest for debt is allowed. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 2 rule Days between the ser- vice of summons on the Debtor and obtaining of judgment in the County Courts, and any time in 6 to 30 Days in Justices' Courts. Execution may issue in any Court after entering of judgment, unless such execution is stayed. Such stay is allowed in Justices' Courts. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the County Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon levy of an execution. WISCONSIN. In general. A claim, debt or demand for less than $200 may be collected in a Jus- tice's Court. The Circuit Court has general jurisdiction. Arrest allowed in tort actions only. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 20 Days between the service of summons on the Debtor and obtaining of judgment in the Circuit Court, and 6 Days in Justices' Courts. Execution may issue in any Court imme- diately after entering of judgment, unless such execution is stayed. Such stay is allowed in Justices' Courts only. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the Circuit Court of the county where rendered, is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only when lev- ied upon under an execution. WYOMING. In general. A claim, debt or demand for less than $200 may be collected in a Jus- tice's Court. The District Court has general jurisdiction. Arrest for debt is allowed. (Except fe- males.) Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, or the suit will be dismissed. It is at least 30 to 35 Days between the ser- vice of summons on the Debtor and obtaining of judgment in the District Court and 3 Days in Justices' Courts. Execution may issue in any Court after entering of judgment, unless such execution is stayed. Such stay is allowed in Justices' Courts. The Judgment of a Justice of the Peace, when a transcript thereof is filed in the office of the Clerk of the District Court of the county where rendered is a lien upon the Debtor's real estate in such county. The judgment is a lien upon personal property only upon levy 1 of an execution. COLLECTION OF CLAIMS, DEBTS AND DEMANDS. 6 59 OKLAHOMA. The civil code of Kansas is in force, with few changes. SOUTH DAKOTA. In general. Circuit Courts have un- limited jurisdiction. County Courts have orig- inal probate jurisdiction and concurrent juris- diction with Circuit Courts in counties whose population is over 10,000, to amount of $i,- ooo ; in other counties to $500. Justices' Courts have jurisdiction where claim does not exceed $100 and title to real estate is not in- volved. Arrest allowed in cases not arising out of contract, where defendant is Non-Resident or ibout to remove, for penalties, damages for breach of promise, embezzlement, concealment of property, fraud. Attachment issues against Non-Residents, and against Debtors for concealment of prop- erty, removal, or fraud. Interested parties may be witnesses. In Circuit or County Courts defendant has 30 Days, exclusive of day of service, in which to answer before judgment can be had for de- fault. In Justices' Courts summons returnable in not less than three nor more than 12 Days, and judgment may be entered on day of re- turn. Service may be had by 6 weeks' publi- cation in newspapers, where defendant can- not be found. Money judgments in Circuit or County Courts are a lien on all real property except homestead, in any county where judgment or transcript of same is entered. Execution may issue any time in 5 years, returnable to Cir- cuit and County Courts in 60, and to Justices' Courts in 30 Days. SUMMARY OF COLLECTION LAWS IN THE DOMINION OF CANADA. Apalnst Estates of Deceased Persons. See title " Limitations," post. Assignment and Insolvency. See that tide, post. Exemption Laws. See that title, post. Interest upon Money. See that title,/,/'. Limitation of Actions or Suits. See that title, post. PROVINCE OF NEW BRUNSWICK. Jurisdiction of Courts. Magistrates $20, in tort $&; Parish Courts, $80 in debt, $32 in tort ; County Courts, $20 to $400 in debt, $200 in tort ; Supreme Court, $400 and upwards. Arrest. On affidavit setting forth cause of action, amount due, and that arrest is not made for the purpose of vexing or harrassing debtor. Discharge upon showing no property. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, for $40 and upwards. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, when required by the defendant, or the suit will be dismissed. It is at least 30 Days between the service of summons on the Debtor and obtaining of judg- ment in the County Court, and 60 Days in the Supreme Court. Execution may issue in any Court after entering of judgment. PROVINCE OF NOVA SCOTIA. In general. A claim, debt or demand for less than 80 may be collected in a Justice's Court. When less than $20 and not over $400 in the County Court. When over $80 in the Supreme Court. Arrest for debt is allowed. Attachment is allowed against Non-Resi- dents, and against Debtors in cases of fraud, whether the debt is due or not. Parties to the suit, or interested therein, are competent Witnesses. Costs of suit must be secured in advance, if required, or the suit will be dismissed. Execution may issue in any Court after en- tering of judgment. PROVINCE OF ONTARIO. In general. Claims for jgioo or less on open accounts, and $200 or less on defendant's signature, collectible in Division Court, but personal actions limited to $60. Claims and personal actions from #100 to #200, collectible in County Court, and up to 400 where claim is ascertained by defendant's signature or act of parties. High Court of Justice has juris- diction of all other cases. Arrest and Imprisonment for debt is re- stricted to $100 and over and to cases of ab- (660) sconding or fraudulent creditors. Privileged Persons and Married Women cannot be ar- rested ; there can be no arrest for non-pay- ment of costs, nor on judgments for penalties or forfeitures, etc. 1 ' Attachment for Debt is allowed against property of and debts due absconding debtors.* Parties to a Suit, or persons in whose be- half any suit, action or other proceeding is brought, instituted, or opposed, or defended, are, with some exceptions, competent and com- pellable to give evidence viva vocc or by de- position, etc. d Costs of Suits by non-residents should be secured in advance, or the suit may be dis- missed. Judgments of Division Courts are obtained in from 12 to 1 6 Days and execution had against lands after return of N. B. where amount is over $40. Execution writs issue from the offices where judgment is entered ; in the Superior Courts of Law after transmission of judgment roll to the principal office. Such writs may issue at once into any county, etc.' PROVINCE OF QUEBEC. In general. A party having a claim, debt, or demand against another, enjoying the free exercise of his rights, may sue therefor in the proper court. Action before the Superior Court is insti- tuted by summons, issued, sealed and signed by the prothonotary upon written requisition of the plaintiff, either in the French or English language. Jurisdiction of Courts. Circuit Court up tojjSioo; Superior Courts all amounts above $100. Judgment notes not allowed. Parties may appear in person or by attor- ney. Parlies cannot avail themselves of their own testimony except in commercial matters. Relationship or interest does not render a witness incompetent; it merely affects his credibility. Arrest and Imprisonment for debt and damages is allowed, on certain conditions, where amount exceeds $40. Simple Attachment for debt is allowed, also Attachment by Garnishment, Attach- ment in revendication and Attachment for rent. Judgments may generally be enforced by execution 15 Days after their dale and 8 Days after they are rendered in summary matters, as bills, notes, accounts, etc. b-C. S. U. C. c. 24. c-C. S. U. C. c. 24 ; Id. c. 19 ; s. 100. d-33 V. c. 13, 5.4; 36 V. c. to, s. i. f-C. S U. C. c. 22, s. 346-7. Id. c. 19, s. 135. Id. c. 15, s. 32. NATIONAL BANKRUPTCY I.AW. The Act of Congress entitled " An act to establish a uniform system of bankruptcy throughout the United States," approved July I, 1898, while it does not render State insolv- ency or bankruptcy laws void, yet makes them inoperative in so far as they conflict with those of Congress, and so long as the national act remains unrepealed. TO WHOM THE ACT APPLIES. Any person who owes debts, except a cor- poration, shall be entitled to the benefits of the act as a voluntary bankrupt and become discharged from his debts as hereinafter stated, and may file his own petition for that purpose. Any natural person, except a wage-earner or a person engaged chiefly in farming or the tillage of the soil, any unincorporated com- pany, and any corporation engaged principally in manufacturing, trading, printing, publish- ing, or mercantile pursuits, owing debts to the amount of one thousand dollars or over, may be adjudged an involuntary bankrupt upon default or an impartial trial, and shall be sub- ject to the provisions and entitled to the bene- fits of this act. Private bankers, but not na- tional banks or banks incorporated under State or Territorial laws, may be adjudged involun- tary bankrupts. A partnership may be adjudged a bankrupt ; its property will be applied primarily to paying partnership debts, and that of an individual bankrupt partner will be applied primarily to the payment of his individual debts. Should any surplus of the partnership assets remain after paying his individual debts, it will be applied to payment of the partnership debts, and if any surplus remains of the partnership assets, after payment of the partnership debts, such portion of it as the individual partner is entitled to will be applied to paying his indi- vidual debts. Where one partner is a bank- rupt and another not, he who is not can pre- vent the partnership property being adminis- tered in bankruptcy by himself settling the partnership business as expeditiously ns its nature will admit, and accounting for the in- terest of the bankrupt partner. WHAT ARE ACTS OF BANKRUPTCY. Acts of bankruptcy by a person (and this in- cludes corporations, partnerships, and women) shall consist of his having (i) conveyed, trans, ferred, concealed, or removed, or permitted to be concealed or removed, any part of his property, with intent to hinder, delay, or de- fraud his creditors, or any of them ; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors ; or (3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposition of any property affected by such preference vacated or discharged such preference; or (4) made a general assignment for the benefit of his creditors; or (5) admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt on that ground. In case of a contest the burden of proof as to his solvency is upon the alleged bankrupt. A person is deemed insolvent within the meaning of the act whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors, shall not, at a fair valua- tion, be sufficient in amount to pay his debts. Proceedings may be instituted against a person who is insolvent and who has com- mitted an act of bankruptcy within four months after the commission of such act. Such time shall not expire until four months after the date of the recording or registering of the transfer or assignment, when the act consists in having made a transfer or assignment of any of his property with intent to hinder, delay or defraud his creditors, or for the purpose or giving a preference as above mentioned, of when it consists of a general assignment for the benefit of his creditors, if by law such re- cording or registering is required or permitted, or if it is not, from the date when the bene- ficiary takes notorious, exclusive or continuous possession of the property, unless the petition- ing creditors have received actual notice of such transfer or assignment. If a bankrupt shall have given a preference within four months before the filing of a peti- tion, or after the filing of the petition and be- fore the adjudication, and the person receiving it, or to be benefited thereby, or his agent act- ing therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person. If pending a decision as to whether a person has committed an act of bankruptcy, the appli- cant desires the alleged bankrupt property to be taken charge of, he must give bond to in- demnify the respondent against costs, expenses, and damages, by reason of such seizure; and if the petition for a decree of bankruptcy be dismissed by the court or withdrawn by the petition, the respondent or respondents shall be allowed all costs, counsel fees, expenses, and damages occasioned by such seizure or detention. Counsel fees, costs, expenses, and damages shall be fixed and allowed by the court and paid by the obligors in such bond. COURTS OF BANKRUPTCY. The District Courts of the United States, the Supreme Court of the District of Colum- bia, the District Courts of the several Territo- ries, and United States courts in the Indian Territory and of Alaska are courts of bank- ruptcy. United States Circuit Courts have concur- (661) 662 NATIONAL BANKRUPTCY LAW. rent jurisdiction with the courts of bankruptcy within their respective territorial limits of ol- fenses against the bankruptcy act. Appeals may be taken to the higher United States courts under circumstances and upon compli- ance with the conditions imposed by law. DUTIES OF BANKRUPTS. A bankrupt must obey all lawful orders of the court, examine the correctness of all proofs of claims filed against his estate, and generally furnish such information as shall facilitate the settlement of his estate to the end that equity and justice may be done. If he be an insolv- ent bankrupt he must prepare, make oath to and file within 10 days after he is declared a bankrupt by the court, unless specially allowed a longer time, a complete itemized schedule of his property, with the value thereof and a list of his creditors, with the particulars of his debt to each. If it appear that a bankrupt is about to leave to avoid being examined as to his affairs, and that his departure will defeat the proceedings in bankruptcy, the court or a judge may order the marshal to keep him in custody, but not imprison him, temporarily, or until he give bond to appear for such examination. COMPOSITIONS. A bankrupt may make a composition with his creditors with the consent of a majority of them in numbers, representing a majority in amount of claims, if the money necessary to pay them the amount agreed upon and to pay preferred claims and the costs of proceeding be actually deposited subject to the order of the judge, said bankrupt having been first ex- amined as to his assets and liabilities in open court or at a meeting of his creditors, and having filed in court a schedule of his property and a list of his creditors above referred to, provided the judge be satisfied that the com- position is for the best interests of his creditors, and that the bankrupt has done his duty and acted in good faith in the premises. A com- position may be set aside within six months after comfirmation of the same by the court, if it appear that fraud was practiced in procur- ing the same. A certified copy of an order confirming a composition shall constitute evidence of re- vesting of title of his property in the bankrupt, and if recorded shall impart the same notice that a deed from the trustee to the bankrupt, if recorded, would impart. DISCHARGE OF DEBTS When Granted. Any person may, after the expiration of one month and within the next twelve months subsequent to being ad- judged a bankrupt, file an application for a discharge in the court of bankruptcy in which the proceedings are pending ; if it shall be made to appear to the judge that the bankrupt was unavoidably prevented from filing it within such time, it may be filed within but not after the expiration of the next six months. The judge shall hear an application for a discharge, and such proofs and pleas as may be made in opposition thereto by parties in interest, at such time as will give parties in interest a reasonable opportunity to be fully heard, and investigate the merits of tne appli- cation and discharge the applicant unless he has (i) committed an offense punishable by imprisonment as herein provided ; or (2) with fraudulent intent to conceal his true financial condition and in contemplation of bankruptcy, destroyed, concealed, or failed to keep books of account or records from which his true con- dition might be ascertained. The confirmation of a composition shall discharge the bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge. When Revoked. The judge may, upon the application of parties in interest who have not been guilty of undue laches, filed at any time within one year after a discharge shall have been granted, revoke it upon a trial if it shall be made to appear that it was obtained through the fraud of the bankrupt, and that the knowledge of the fraud has come to the petitioners since the granting of the discharge, and that the actual facts did not warrant the discharge. Co-debtors of Bankrupts. The liability of a person who is a co-debtor with, or guar- antor or in any manner a surety for, a bank- rupt shall not be altered by the discharge of such bankrupt. Debts not Affected by a Discharge. A discharge in bankruptcy shall release a bank- rupt from all of his provable debts, except such as (l) are due as a tax levied by the United States, the State, county, district, or municipal- ity in which he resides ; (2) are judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another; (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bank- ruptcy ; or (4) were created by his fraud, em- bezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity. CREDITORS. Meetings The court shall cause the first meeting of the creditors of a bankrupt to be held, not less than ten nor more than thirty days after the adjudication, at the county seat of the county in which the bankrupt has had his principal place of business, resided, or had his domicile ; or if that place would be mani- festly inconvenient as a place of meeting for the parties in interest, or if the bankrupt is one who does not do business, reside, or have his domicile within the United States, the court shall fix a place for the meeting which is the most convenient for parties in interest. If NATIONAL BANKRUPTCY LAW. 663 such meeting should by any mischance not be held within such time, the court shall fix the date, as soon as may be thereafter, when it shall be held. At tlie first meeting of creditors the judge or referee shall preside, and, before proceeding with the other business, may allow or disallow the claims of creditors there presented, and may publicly examine the bankrupt or cause him to be examined at the instance of any creditor. The creditors shall at each meeting take such steps as may be pertinent and necessary for the promotion of the best interests of the estate and the enforcement of this act. A meeting of creditors, subsequent to the first one, may be held at any time and place when all of the creditors who have secured the allowance of their claims sign a written consent to hold a meeting at such time and place. The court shall call a meeting of creditors whenever one-fourth or more in number of those who have proven their claims shall file a written request to that effect ; if such request is signed by a majority- of such creditors, which number represents a majority in amount of such claims, and contains a request for such meeting to be held at a designated place, the court shall call such meeting at such place within thirty days after the date of the filing of the request. Whenever the affairs of the estate are ready to be closed a final meeting of creditors shall be ordered. Voters at Meetings of Creditors. Cred- itors shall pass upon matters submitted to them at their meetings by a majority vote in number and amount of claims of all creditors whose claims have been allowed and are present, except as by law otherwise provided. Creditors holding claims which are secured or have priority shall not, in respect to such claims, be entitled to vote at creditors' meet- ings, nor shall such claims be counted in com- puting either the number of creditors or the amount of their claims, unless the amounts of such claims exceed the values of such securi- ties or priorities, and then only for such excess. Proof and Allowance of Claims. Proof of claims shall consist of a statement under oath, in writing, signed by a creditor setting forth the claim, the consideration therefor, and whether any, and, if so, what, securities are held therefor, and whether any, and, if so, what, payments have been made thereon, and that the sum claimed is justly owing from the bankrupt to the creditor. Whenever a claim is founded upon an in- strument of writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim. If such instrument is lost or de- stroyed, a statement of such fact and of the circumstances of such loss or destruction shall be filed under oath with the claim. After the claim is allowed or disallowed, such instru- ment may be withdrawn by permission of the court, upon leaving a copy thereof on file with the claim. Claims after being proved may, for the pur- pose of allowance, be filed by the claimants in the court where the proceedings are pending, or before the referee if the case has been re- ferred. Claims which have been duly proved shall be allowed, upon receipt by or upon presen- tation to the court, unless objection to their allowance shall be made by parlies in interest, or their consideration be continued for cause by the court upon its own motion. Claims of secured creditors and those who have priority may be allowed to enable such creditors to participate in the proceedings at creditors' meetings held prior to the determin- ation of the value of their securities or priori- ties, but shall be allowed for such sums only as to the courts seem to be owing over 'and above the value of their securities or priorities. The claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences. The value of securities held by secured creditors shall be determined by converting the same into money according to the terms of the agreement pursuant to which such securi- ties were delivered to such creditors or by such creditors and the trustee, by agreement, arbitration, compromise, or litigation, as the court may direct, and the amount of such value shall be credited upon such claims, and a dividend shall be paid only on the unpaid balance. Whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor's name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor. Debts owing to the United States, a State, a county, a district, or a municipality as a pen- alty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued thereon according to law. Claims which have been allowed may be reconsidered for cause and reallowed or re- jected in whole or in part, according to the equities of the case, before but not after the estate has been closed. Ordinarily, claims cannot be proved after the expiration of one year from the date when the party is adjudged a bankrupt. Notice to Creditors. Creditors are en- titled to ten day's notice by mail of nearly all important steps in the proceedings after pre- sentation of the petition. Notice of the first meeting of creditors shall be published, the last publication to be at least one week prior 664 NATIONAL BANKRUPTCY LAW. to the date fixed for the meeting. All notices shall be given by the referees unless otherwise ordered by the judge. Who may File Petitions in Involuntary Bankruptcy. Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hun- dred dollars or over ; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals sucli amount may file a petition to have him adjudged an involuntary bankrupt. Petitions shall be filed in duplicate, one copy for the clerk and one for service on the bank- rupt. If it be averred in the petition that the cred- itors of the bankrupt are less than twelve in number, and less than three creditors have joined as petitioners therein, and the answer avers the existence of a larger number of cred- itors, there shall be filed with the answer a list under oath of all the creditors, with their ad- dresses, and thereupon the court shall cause all such creditors to be notified of the pendency of such petition and shall delay the hearing upon such petition for a reasonable time, to the end that parties in interest shall have an opportunity to be heard ; if upon such hearing it shall appear that a sufficient number have joined in such petition, or if prior to or during such hearing a sufficient number shall join therein, the case may be proceeded with, but otherwise it shall be dismissed. In computing the number of creditors of a bankrupt for the purpose of determining how many creditors must join in the petition, such creditors as were employed by him at the time of the filing of the petition or are related to him by consanguinity or affinity within the third degree, as determined by the common law, and have not joined in the petition, shall not be counted. Creditors other than original petitioners may at any time enter their appearance and join in the petition, or file an answer and be heard in opposition to the prayer of the petition. A voluntary or involuntary petition shall not be dismissed by the petitioner or petitioners or for want of prosecution or by consent of parties until after notice to the creditors. TRIAIJ5 AND PROCEDURE. A person against whom an involuntary peti- tion has been filed is entitled to have a trial by jury in respect to the question of his in- solvency, except as in the act otherwise pro- vided, and in respect to any act of bankruptcy alleged to have been committed, but he must promptly avail himself of the right, or it will be deemed waived. The trustee may, pursuant to the direction of the court, submit to arbitration any contro- versy arising in the settlement of the estate. Three arbitrators shall be chosen by mutual consent, or one by the trustee, one by the other party to the controversy, and the third by the two so chosen ; or if they fail to agree in five days after their appointment, the court shall appoint the third arbitrator. A written finding of the arbitrators, or a majority of them, shall be filed in court and shall have like force and effect as the verdict of a jury. A court of bankruptcy may require any des- ignated person (including the bankrupt), who is a competent witness under the laws of the State in which the proceedings are pending, to appear in court or before a referee or the judge of any State court, to be examined con- cerning the acts, conduct, or property of a bankrupt whose estate is in process of admin- istration. After a person has been adjudged a bank- rupt the judge may cause the trustee to pro- ceed with the administration of the estate, or refer it generally to a referee or, specially, with only limited authority to act in the premises, or to consider a report in specific issued. A case may be transferred from one referee to another. Courts of bankruptcy may designate a news- paper, or in particular cases two newspapers, in which necessary notices and orders shall be published. OFFENSES AND PUNISHMENT THEREOF. A person shall be punished, by imprison- ment for a period not to exceed five years, upon conviction of the offense of having know- ingly and fraudulently appropriated to his own use, embezzled, spent, or unlawfully trans- ferred any property, or secreted or destroyed any document belonging to a bankrupt estate which came into his charge as trustee. A person shall be punished, by imprison- ment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently (i) concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy ; or (2) made a false oath or account in, or in relation to, any proceed- ing in bankruptcy; (3) presented under oath any false claim for proof against the estate of a bankrupt, or used any such claim in composi- tion personally or by agent, proxy, or attorney, or as agent, proxy, or attorney ; or (4) re- ceived any material amount of property from a bankrupt after the filing of the petition, with intent to defeat this act ; or (5) extorted or attempted to extort any money or property from any person as a consideration for acting or forbearing to act in bankruptcy proceedings. A person shall be punished by fine, not to exceed five hundred dollars, and forfeit his office, and the same shall thereupon become vacant, upon conviction of the offense of hav- ing knowingly (i) acted as a referee in a case in which he is directly or indirectly interested; or (2) purchased, while a referee, directly or indirectly, any property of the estate in bank- ruptcy of which he is referee ; or (3) refused, while a referee or trustee, to permit a reason- NATIONAL BANKRUPTCY LAW. 665 able opportunity for the inspection of the ac- counts relating to the affairs of, and the papers and records of, estates in his charge by parties in interest when directed by the court so to do. A person shall not be prosecuted for any offense arising under this act unless the indict- ment is found or the information is filed in court within one year after the commission of the offense. REFEREES. Courts of bankruptcy must appoint referees, each for a term of two years. There must be at least one in each county. Referees must not fill any office of profit or emolument under the laws of the United States or any State other than commissioner of deeds, justice of the peace, master in chan- cery, or notary public; must not be related, unless very distantly, to any of the judges of the courts of bankruptcy or Circuit Courts of the United States, or any of the justices or judges of the Appellate Courts of the districts wherein they may be appointed ; and they must be residents of, or have their offices in, the territorial districts for which they are ap- pointed. Subject to review by the judge, they shall consider all petitions referred to them by the clerks, and make adjudications or dismiss the petitions, administer oaths, examine witnesses, employ stenographers, and require the produc- tion of documents and proceedings before them ; and generally exercise many of the powers of the judge in order to lighten the labors of the court itself. Referees shall (i) declare dividends and prepare and deliver to trustees dividend sheets showing the dividends declared and to whom payable; (2) examine all schedules of prop- erty and lists of creditors filed by bankrupts and Cause such as are incomplete or defective to be amended ; (3) furnish such information concerning the estates in process of adminis- tration before them as may be requested by the parties in interest ; (4) give notices to creditors as herein provided; (5) make up records embodying the evidence, or the sub- stance thereof, as agreed upon by the parties in all contested matters arising before them, whenever requested to do so by either of the parties thereto, together with their findings therein, and transmit them to the judges ; (6) prepare and file the schedules of property and lists of creditors required to be filed by the bankrupts, or cause the same to be done, when the bankrupts fail, refuse, or neglect to do so ; (7) safely keep, perfect, and transmit to the clerks the records herein required to be kept by them, when the cases are concluded ; (8) transmit to the clerks such papers as may be on file before them whenever the same are needed in any proceedings in courts, and in like manner secure the return of such papers after they have been used, or, if it be imprac- ticable to transmit the original papers, transmit certified copies thereof by mail ; (9) upon ap- plication of any party in interest, preserve the evidence taken or the substance thereof as agreed upon by the parties before them when a stenographer is not in attendance; and (10) whenever their respective offices are in the same cities or towns where the courts of bank- ruptcy convene, call upon and receive from the clerks all papers filed in courts of bankruptcy which have been referred to them. Referees shall not (l) act in cases in which they are directly or indirectly interested ; (2) practice as attorneys and counselors-at-law in any bankruptcy proceedings ; or (3) purchase, directly or indirectly, any property of an estate in bankruptcy. Compensation of Referees. Referees shall receive as full compensation for their services, payable after they are rendered, a fee of ten dollars deposited with the clerk at the time the petition is filed in each case, ex- cept when a fee is not required from a volun- tary bankrupt, and from estates which have been administered before them one per centum commissions on sums to be paid as dividends and commissions, or one-half of one per cen- tum on the amount to be paid to creditors upon the confirmation of a composition. Contempts before Referees. A person shall not, in proceedings before a referee, (l) disobey or resist any lawful order, process, or writ ; (2) misbehave during a hearing or so near the place thereof as to obstruct the same ; i3) neglect to produce, after having been or- dered to do so, any pertinent document; or '4) refuse to appear after having been sub- Dcenaed, or, upon appearing, refuse to take .he oath as a witness, or, after having taken :he oath, refuse to be examined according to aw : Provided, That no person shall be re- quired to attend as a witness before a referee at a place outside of the State of his residence, and more than one hundred miles from such place of residence, and only in case his lawful mileage and fee for one day's attendance shall first paid or tendered to him. The referee shall certify the facts to the udge, if any person shall do any of the things brbidden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and, if t is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed be- bre the court of bankruptcy, or commit such aerson upon the same conditions as if the do- ng of the forbidden act had occurred with reference to the process of, or in the presence of, the court. TRUSTEES. The creditors of a bankrupt estate shall at their first meeing after adjudication (that is, after the finding by the court that the party is a bankrupt), or after a vacancy has occurred n the office of a trustee, or after an estate has seen reopened, or after a composition has icen set aside or a discharge revoked, appoint one trustee or three trustees for each estate. 666 NATIONAL BANKRUPTCY LAW. If the creditors do not appoint a trustee o trustees, the court shall do so. Trustees may be (i) individuals who are re spectively competent to perform the duties o that office, and reside or have an office withi the judicial district within which they are ap pointed, or (2) corporations authorized by thei charters or by law to act in such capacity and having an office in such judicial district. Duties. Trustees shall respectively (i account for and pay over to the estates unde their control all interest received by them upon property of such estates ; (2) collect an reduce to money the property of the estate for which they are trustees, under the direc tion of the court, and close up the estate a expeditiously as is compatible with the bes interests of the parties in interest; (3) deposi all money received by them in one of the des ignated depositories ; (4) disburse money onl) by check or draft on the depositories in which it has been deposited ; (5) furnish such in formation concerning the estates of which the are trustees and their administration as may be requested by parties in interest ; (6) keep regular accounts showing all amounts receivec and from what sources and all amounts ex pended and on what accounts; (7) lay before the final meeting of the creditors detailec statements of the administration of the estates (8) make final reports and file final accounts with the courts fifteen days before the days fixed for the final meetings of the creditors; (9) pay dividends within ten days after they are declared by the referees; (10) report to the courts, in writing, the condition of the estates and the amounts of money on hand, and such other details as may be required by the courts, within the first month after their appointment and every two months thereafter, unless otherwise ordered by the courts ; and ( 1 1) set apart the bankrupt's exemptions and report the items and estimated value thereof to the court as soon as practicable after their appointment. Whenever three trustees have been ap- pointed for an estate, the concurrence of at least two of them shall be necessary to the validity of their every act concerning the ad- ministration of the estate. Compensation. Trustees usually receive $5, paid at the time the original petition is filed, and in addition are entitled, from estates which they have administered, to such com- missions as the court shall allow, not exceed- ing three per centum on the first $5,000, two per centum on the second $5,000, and one per centum on sums in excess of $10,000. BONDS OF REFEREES AND TRUSTEES. Both referees and trustees must give bond conditioned for the faithful performance of their duties, with at least two sureties to be approved by the court, the former in an amount not exceeding $5,000, to be fixed by the court, and the latter in such sum as the creditors shall determine. CLERKS AND MARSHALS. Clerks and United States marshals usually receive from the estate $10 at the commence- ment of the proceedings, and in addition such fees as are allowed by law for whatever ser- vices they perform in each case. APPRAISEMENT AND SALE. All real and personal property belonging to bankrupt estates shall be appraised by three disinterested appraisers ; they shall be ap- pointed by, and report to, the court. Real and personal property shall, when practicable, be sold subject to the approval of the court ; it shall not be sold otherwise than subject to the approval of the court for less than -sev- enty-five per centum of its appraised value. DEBTS WHICH HAVE PRIORITY. United States, State, county, district, and municipal taxes are payable under order of court in advance of payments of dividends to creditors. Other debts having priority, and to be paid in full out of the bankrupt estate, and the order of payments are, (i) the actual and necessary cost of preserving the estate subsequent to filing the petition ; (2) the filing fees paid by creditors in involuntary cases ; (3) the cost of administration, including fees and mileage due witnesses, and one reasonable attorney's fee ; (4) wages due to workmen, clerks, or servants earned within three months before the date of commencement of proceedings, not to exceed $300 to each claimant ; (5) debts owing to any person who by the laws of the States, or the United States, is entitled to priority. In the event of the confirmation of a com- Dosition being set aside, or a discharge re- voked, the property acquired by the bankrupt n addition to his estate at the time the com- position was confirmed, or the adjudication was made, shall be applied to the payment in iill of the claims of creditors for property sold o him on credit, in good faith, while such composition or discharge was in force, and the residue, if any, shall be applied to the pay- ment of the debts which were owing at the ime of the adjudication. Expenses. Expenses incurred in the ad- ministration of estates shall, except where ither provisions are made for their payment, >e reported in detail, under oath, and exam- ned and approved or disapproved by the ourt. If approved, they shall be paid or al- owed out of the estates in which they were ncurred. DIVIDENDS. A dividend of at least five per centum shall e paid within 30 days from the time the party ; adjudged a bankrupt if the funds on hand vill permit it ; other dividends of ten per entum or more shall be subsequently paid as romptly as possible, but the court may order mailer dividends if deemed desirable. Dividends which remain Unclaimed for six onths after the final dividend has been de- lared shall be paid by the trustee into court, NATIONAL BANKRUPTCY LAW. 667 and if remaining unclaimed for one year shall, under the direction of the court, be distributed to the other creditors, but minors may have one year after arriving at majority to claim such dividends. LIENS. A lien created by or obtained in or pursu- ant to any suit or proceeding at law or in equity, including an attachment upon mesne process or a judgment by confession, which was begun against a person within four months before the filing of a petition in bankruptcy by or against such person, shall be dissolved by the adjudication of such person to be a bankrupt if (i) it appears that said lien was obtained and permitted while the defendant was insolvent and that its existence and en- forcement will work a preference, or (2) the party or parties to be benefited thereby had reasonable cause to believe the defendant was insolvent and in contemplation of bankruptcy, or (3) that such lien was sought and permitted in fraud of the provisions of the bankruptcy act. All conveyances, transfers, assignments, or incumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt, and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or de- fraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and ( for a present fair consideration ; and all property of the debtor conveyed, transferred, assigned, or encumbered as aforesaid shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. And all conveyances, trans- fers, or incumbrances of his property made by a debtor at any time within four months prior to the filing of the petition against him, and while insolvent, which are held null and void as against the creditors of such debtor by the laws of the State, Territory, or district in which such property is situate, shall be deemed null and void under this act against the cred- itors of such debtor if he be adjudged a bank- rupt, and such property shall pass to the as- signee and be by him reclaimed and recovered for the benefit of the creditors of the bankrupt. All levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, and other lien shall be deemed wholly discharged and re- leased from the same and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, at- tachment, or other lien shall be preserved for the benefit of the estate ; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid, and the court may order such con- veyance as shall be necessary to carry the purposes of this section into effect : Provided, that nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry. MISCELLANEOUS PROVISIONS. Set-off. A set-off or counter-claim shall not be allowed in favor of any debtor of the bankrupt which was purchased by or trans- ferred to him after the filing of the petition, or within four months before such filing, with a view to such use and with knowledge or notice that such bankrupt was insolvent or had committed an act of bankruptcy. Exemptions. The bankrupt law does not affect the allowance to bankrupts of the ex- emptions which are prescribed by the State laws in force, at the time of the filing of the petition to have said person adjudged a bank- rupt, in the State wherein they had their dom- icile for six months or the greater portion immediately preceding the filing of the petition. Widows. In case of the death of the bankrupt, the widow and children shall be entitled to all rights of dower and allowances fixed by the laws of the State of the bankrupt's residence. Depositories. Courts of bankruptcy shall designate banking institutions as depositories for the money of bankrupt estates as conven- ient as may be to the residences of trustees and require bonds from them. Patents, etc. Interests in patents, patent- rights, copyrights, and trade-marks are in- cluded amongst the assets of a bankrupt's estate. Life Insurance. A bankrupt having an insurance policy with a cash surrender value, payable to himself, his estate or personal rep- resentatives, may, within 30 days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated, and continue to own, hold, and carry such policy free from the claims of creditors participating in the distri- bution of his estate under the bankruptcy pro- ceedings, otherwise the policy shall pass to the trustee as assets. Right to Damage. Rights of action aris- ing upon contracts or from the unlawful taking or detention of or injury to a bankrupt's prop- erty are included in the assets of the estate. ASSIGNMENT AND INSOLVENCY In the United States, Territories, Etc. The United States bankruptcy act of July ist, 1898, has rendered the several State laws, relating to assignment and insolvency, inoperative in so far as it may conflict with them, but no further. The authority of Congress, under the Constitution of the United States, is para- mount in the matter of enactment of uniform bankruptcy laws for tht whole country. It should be particularly observed that the bankruptcy law does not apply in all cases or under all circumstances. For information on this subject see title "The Bankruptcy Law," in this book. ALABAMA. No insolvent law. Assignments. If debtor seeks by confess- ing judgment, or through an attachment, to give unlawful preference, this operates as a general assignment. So also preference can not be given in the assignment itself. Cred- itor can require trustee to give bond. ARIZONA. In assignments, claims must be presented within six months from publication of notices. No preferences permitted. ARKANSAS. Insolvent law. Debtor may ask to be de- clared insolvent and turn over property to re- ceiver, excepting what is exempted. Receiver may contest any attachment issued ten days before debtor files his application. After set- tlement debtor released of his debts. Wages and salaries for three months preferred. No other preferences among creditors. Assignments may be made with prefer- ences. Must be contested, if at all, within six months. If set aside it becomes an assign- ment for all creditors pro rata. Assignee gives bond. Insolvent corporations cannot prefer. CALIFORNIA. A resident owing more than $300 may petition the Superior Court with schedule. The court orders the sheriff into possession until creditors appoint an assignee, not less than thirty days after published date of order. Preferences not allowed. Dividends declared from time to time on all proven claims. As- signee gives bond with two sureties. In- voluntary insolvency is by petition of not less than five creditors with claims aggregating not less than $500, and verified by at least three petitioners showing fraudulent intentions or acts, or (unsatisfied) legal process for four days, or suspension of payments for forty days. If petition is granted, proceedings same as involuntary insolvency. Discharge, except in case of corporations, may be ob- tained after three months from time of adjudi- cation. Any creditor may oppose discharge, and have issue tried by jury. Fraud punished by imprisonment. COLORADO. No insolvent law. Assignments. No preferences. Claims filed within three months have preference over those filed after, unless creditor had no notice to present his claim. Estate must be closed up within one year unless court extend the time. Wages earned within six months before (668) assignment, not exceeding $50, and taxes have priority. Assignor may obtain discharge from debts. CONNECTICUT. Any creditor having a claim for $100 or over, founded on a contract, may cause a writ of attachment to issue. The officer returns he can find no property to attach, and then the creditor brings a petition to the Court of Probate asking for the appointment of a trustee to take charge of the debtor's estate. The trustee sells the property and pays the credit- ors pro rata. The debtor obtains no discharge unless he pays 70 per cent. The debtor can also make a voluntary assignment, and the trustee acts the same as in an involuntary case. No preferences. DELAWARE. Assignments must be for all creditors alike. Debtor is not discharged from his obligations except as far as paid. Debtor be- fore assignment may prefer creditors by con- fessed judgment or otherwise, but the debt must be bona fide. Insolvent laws. Practically obsolete. DISTRICT OF COLUMBIA. Assignments. All debts must be paid pro rata. List of debts, also of assets, must be attached to assignment. Assignee must reside in district. No insolvent law applies in the district ex- cept the national bankruptcy act. See title " The Bankruptcy Law," in this book. FLORIDA. Assignment. Distribution must be pro- portional to amount of claims. Exempt prop- erty reserved to assignor. No insolvent law. GEORGIA. Assignments may prefer creditors, but a corporation may prefer only creditors entitled to priority under the general laws of the State. A levy made under attachment, before assign- ment, will stand. Assignor and assignee must make complete list of property, and assignor must make affidavit of its completeness. If one who is insolvent purchases goods, without intending to pay for them, the vendor may annul the sale and recover the goods, if no innocent third party has acquired rights there- in. An insolvent corporation, or trader, not paying a debt at maturity is liable to have his property placed in the hands of a receiver on petition of creditors representing one-third or more of unsecured debt. By trader is meant one who does business, buys and sells realty or personalty of any kind, a banker, broker, ASSIGNMENT AND INSOLVENCY. 669 or commission merchant, or one manufactur- ing $5,000 worth of goods or more per annum. No preferences allowed after application for receiver. Court may discharge debtor from his debts, but this is not usually done. IDAHO. Insolvent debtor may apply to court, sur- render all he owns to the sheriff till appoint- ment of an assignee to take charge (reserving for himself what is exempt from execution). The creditors elect the assignee. The debtor may be discharged from debts of residents of the State ; also of non-residents who present their claims. ILLINOIS. Assignments. Assignee must send notice to each creditor to present his claim under oath within three months. If not so presented the claim is deferred to those of creditors who comply. Assignee must render final account within a year, but dividend may he ordered meantime by the court. List of claims proven must be filed by assignee at the end of three months, and claims may be contested within thirty days after list is filed. Preferences whether made in assignment or in contempla- tion of assignment are void. Wages are pre- ferred, otherwise distribution is pro rata to creditors. INDIANA. No preference in assignments, but prefer- ence may be effected by prior confession of judgment or mortgage. Assignor is not dis- charged from debts, unless they are paid in full. Claims filed must be under oath. The trustee or a creditor may cause the arrest of assignor or person to whom a fraudulent trans- fer of property has been made, and subject him to examination in court. Dividend may be compelled when assets on hand sufficient to pay ten per cent. Creditors representing half of the liabilities may cause removal of trustee. To be effective deed of assignment must be recorded. INDIAN TERRITORY. Assignee must sell property at public sale within 1 20 days after giving bond. Insolvent law applies only to releasing per- sons imprisoned for certain causes. IOWA. Assignments must be for the benefit of all the creditors. No preferences permitted in assignment. Property exempt from execution may be reserved. Assignee must notify all creditors known to him to present claims un- der oath within three months, at the end of which time he must file list of creditors so presenting claims, and within three months thereafter interested parties may file objections to any claim. Assignment does not effect a discharge from debts. Taxes and wages not exceeding one hundred dollars to any em- ployee for work done within ninety days pre- ceding the assignment are preferred. KANSAS. All creditors participate in proportion to amounts of claims. They are entitled to notice by advertisement and also by letter, so far as their addresses are known, of time and place of adjusting and allowing demands. A dividend must be paid not more than a month after the allowance of demands, and thereafter as often as five per centum can be paid there- on. A schedule of liabilities must be filed on the day assignment is executed. KENTUCKY. Assignments are for the benefit of all creditors. Exempt property does not pass by the deed. Preferences made within six months before assignment are void, and assignee is authorized to recover property transferred in hand of creditors. Creditors living out of the county are en- titled to notice by mail. Claims must be pro- bated, and if not properly presented are deemed waived unless the court order otherwise. LOUISIANA. A debtor may ask his creditors for a res- pite, and a majority may grant such, not ex- ceeding three years. Should this be refused, surrender follows ; but preference to any creditor is void. The debtor obtains a discharge from his debts upon surrender of his property, and all creditors proving their debts, and accepting a dividend, are barred from further proceedings for the balance, but the debtor is debarred from this right if he has given an unjust pref- erence within three months before surrender. A debtor who has issued execution and found no property thereon may force a sur- render. MAINE. A debtor owing over $300 may apply for benefit of insolvent act by paying 25 into In- solvent Court with his petition. When two or more creditors make oath as to their belief in the insolvency of a debtor, and that they believe their aggregate debts amount to more than one-fourth part of the debts provable against a debtor, the judge shall declare him insolvent, if such allegations are proved. An assignee is chosen at the first meeting of creditors, such choice being made by three or more in number of the unsecured creditors present at the meeting, whose debts amount collectively to one-half in number of the amount proved ; and in the interval between the declaration of insolvency of debtor and choice of assignee by creditors, the court mes- senger shall hold the estate of debtor. An assignee may recover any money paid a creditor on writ, judgment or execution, when uch payment is made within four months prior to commencement of insolvency pro- ceedings, when such money is received as a preference, and known at the time that debtor is insolvent. A discharge shall not be granted if debtor has sworn falsely, concealed assets, or other- wise fraudulently acted. A discharge may be granted any time after 6;o ASSIGNMENT AND INSOLVENCY. four months from the time of issuing the war- rant of insolvency. Should debtor at first meeting produce an agreement, signed by a majority of the credit- ors, representing three-fourths of his indebted- ness, agreeing to accept a certain percentage, the judge shall grant a discharge when debtor has paid or secured such percentage. Creditors out of the State, who have not proved their claims, are not affected. MARYLAND. Deeds of trust for the benefit of creditors may be made if not to burden, delay, or de- fraud creditors. No preferences allowed. MASSACHUSETTS. Debtor may assign all his property, reserv- ing what is exempt, and if a majority (in num- ber and amount of claims) of the creditors who are unsecured and not privileged under the law assent in writing, the assignment will be valid. Those assenting will share to the exclusion of those not assenting, unless the instrument expressly makes the assignment for the benefit of all creditors. The assignment may be superseded any time within six months, however, by the institution of insolvency pro- ceedings under the State laws. Known cred- itors are entitled to notice by mail. A State insolvency law is in force so far as not superseded by the United States bank- ruptcy act of 1898. It enables a debtor, mak- ing an honest surrender of his property, to obtain a discharge from his debts, or to effect a compromise with all creditors with the con- sent of three-fourths of them in number and amount of claims. MICHIGAN. Assignments for creditors must contain no preferences. Property exempt from execution is allowed the debtor. Claims must be proved by affidavit, showing the consideration for the debt, when contracted, when due, all pay- ments on account, and what collateral is held therefor. MINNESOTA. Exempt property excluded from the assign- ment. Attachment or levy becomes dissolved by an assignment made within ten days there- after. Complete schedule of debts must be filed by assignor. Known creditors must have notice by mail. Claims must be itemized, verified, and filed within time fixed by court. If debtor does not assign in such manner and at such time as to prevent parties from ob- taining preferences, creditors may have re- ceiver appointed. All payments and transfers made within ninety days before assignment or receivership to those having reason to believe debtor insolvent may be set aside. Taxes and $5 wages owing any person earned within ninety days preceding assignment, or receiver- ship, are preferred by law. Debtor may be discharged only from claims proven or participating in the distribution. Secured creditors must exhaust security before participating in general assets. MISSISSIPPI. Assignment act of 1892 compels assignee to file petition and bond in twenty-four hours. He then becomes an officer of the court for the purpose of the assignment. Preferences are allowed, and creditors may attack by com- petition. MISSOURI. No insolvent law. Assignments. No preferences allowed. Not more than one month after allowance of claims a dividend must be paid and thereafter as often as funds on hand warrant a dividend of five per cent. State taxes and wages ac- crued within six months, not exceeding $100 to each employee, have priority. Debts are not discharged unless paid in full. MONTANA. No insolvent law. Insolvent debtors may make assignments and prefer creditors, but the preference must be absolute and without power of revocation. Wages for sixty days preceding assignment, not exceeding $200, have priority to all other claims. The debt is not discharged ; creditors to be bound must be notified. Fraudulent proceed- ings subject the debtor to imprisonment till he makes full surrender. NEBRASKA. Sheriff takes charge of assigned estates in the first place. Subsequently creditors meet and choose an assignee, and notice of meeting must be given creditors. Claims must be filed by a day fixed, or be barred. Debtor must file statement giving particulars as to assets and liabilities. Only property exempt from execution can be reserved. Within three months after date of inventory court orders distribution of funds on hand. No preferences allowed unless it be for $100 or less for wages. Transfers made in contemplation of insolvency within thirty days before making the assign- ment to a person having cause to believe the assignor insolvent are void. So also are pref- erences to creditors with like intent within the thirty days. NEVADA. Insolvent debtor, owing $500 or more, residing one year in any county, may make assignment. Creditors choose assignee, or on their failure, the court appoints the sheriff. To secure a discharged debtor's property sur- render must equal fifty per cent, of debts un- less three-fourths in number and one-half in amount of creditors consent. No discharge granted where fraud proven. Partners and corporations may be driven into involuntary insolvency on petition of five creditors, resi- dents of the State, whose claims reach $500. NEW HAMPSHIRE. No preferences allowed, and assignment must include the whole estate of assignor. A composition will be allowed, three-fourths of the creditors in number and amount of claims consenting (claims to exceed $50 each), and the judge of probate also consenting, thus ASSIGNMENT AND INSOLVENCY. 671 effecting a discharge from debts. A creditor may dissent, take no benefit under the assign- ment, and still hold his claim. NEW JERSEY. Assignment must be of all the debtor's estate without preference. Judgment con- fessed to give a preference will not be pre- ferred. Time for filing claims may be limited by order of court, and claims not filed in ac- cordance therewith, or within three months after the assignment, may become barred of a dividend. Goods and chattels to the value of $200 and wearing apparel shall be reserved from estate of one having a family. Wages not exceeding $300 to one person have prior- ity. Rent for one year is preferred out of proceeds of personalty on property leased. Claims presented will be discharged; others will not. NEW MEXICO. Debtor may make a voluntary assignment of all his property, resulting in a distribution pro rata among the creditors, or the court will, on application of adverse parties, appoint an assignee if application thereof is made within six months after any sale, mortgage or trans- fer made by the debtor or judgment suffered or act done by him in contemplation of in- solvency with design to prefer one or more creditors. No preferences are allowed in any case, but the debtor is allowed property ex- empt from execution. He is not discharged from debts not fully paid upon distribution of the assets. NEW YORK. Wages and salaries earned within a year prior to assignment are preferred, and prefer- ences to creditors may be given with respect to one-third of the balance of the estate, but assigning partnerships and corporations can make no preferences. After one year from date of assignment a creditor may compel as- signee to account. Assignor is not discharged from unpaid portions of his debts. NORTH CAROLINA. Insolvent debtors, in order to obtain a discharge, must file a petition and full schedule of property and debts, when a trustee will be appointed to hold the property for the benefit of creditors. The debtor is then entitled to a personal discharge. Assignments. Debtors may make prefer- ences, but within five days after making as- signment assignor must file statement contain- ing list of preferred creditors, amount due each, when contracted, and consideration therefor, otherwise the deed is invalid. As- signee must file account every three months, and his final account within twelve months, unless good cause be shown to the contrary. Claims must be probated and filed. NORTH DAKOTA. An assignment in good faith may be made in trust for creditors. An insolvent cannot give a preference to one or more of his creditors. An insolvent debtor owing $500 or more 43 may take the benefit of the insolvent law and become discharged from his debts, if he has acted fairly and honestly, upon surrendering all but his exempt property. The court directs notice to be given all creditors. Any person owing $500 or more acting fraudulently, seeking to escape creditors, or committing acts designed to prefer creditors contrary to the insolvent law of the State, or, while insolvent, suffering an execution of $500 or more to be returned unsatisfied, or, if a merchant, suspending payment for thirty days or more of commercial paper, may be driven into involuntary insolvency by creditors hav- ing claims amounting to $400 or more. Notice is given to creditors and they choose an as- signee. All levies under any process made within sixty days before proceedings are com- menced are dissolved, and any transfers to de- fraud creditors made within thirty days are void, and no judgment will be a lien if suit was commenced within six months and en- tered within thirty days before proceedings are commenced. Debtor may be discharged from debts if he has practiced no frauds. Life in- surance is not included in the insolvent es- tate. OHIO. Assignor retains property exempt from exe- cution, unless waived in the assignment. Court may order business to be carried on on application of three-fourths of the credit- ors. Claims must be probated and filed with- in six months after assignment. Taxes on personal property, wages earned within twelve months prior to assignment not exceeding $300, are preferred, but not to the prejudice of a lien. Debtor is not discharged from his debts so far as unpaid. A debtor may, in good faith, prefer a creditor before assign- ment. OKLAHOMA. Must be no preferences in assignments, though bona fide creditors may be preferred before assignment. OREGON. An assignment by one insolvent is not good if it contains preferences. The assignment dissolves all attachments on which judgment has not been obtained. The creditors may select the assignee. Debtor may be discharged from his debts if his estate has paid fifty per cent. PENNSYLVANIA. Assignment without preferences may be made of all or part of one's estate, but it will not work a discharge from unpaid portions of debts. Bona fide creditors may be preferred before assignment. Debtor may reserve $300 worth of his property, or waive his right to it. Certain taxes are preferred, as are also wages earned within six months not amounting to over $200 in any one case. Distribution of personalty proceeds is then to all creditors pro rata ; likewise as to realty proceeds after lien creditors are satisfied. Levies and attach- ments of personalty before the assignment 672 ASSIGNMENT AND INSOLVENCY. hold good. Assignee may be required to file an account after one year, or show cause why he should not. Distribution is by an auditor appointed by court after the account is con- firmed, and claims must be presented to the auditor. RHODE ISLAND. An insolvent resident owing $300 or more may ask relief under insolvency law and be- come discharged from debts, or creditors rep- resenting one-fourth of his debts may insti- tute insolvency proceedings if he has assigned for the benefit of creditors, or has taken steps to defraud creditors or give preferences, or ob- tained credit by false statements, or has failed to pay his commercial paper for thirty days. Claims must be probated and filed. Preferred creditors, other than those named by law, must surrender preferences or take nothing. Credit- ors choose assignees. A composition with creditors may be ordered by court under cer- tain circumstances, and debtor, in case of com- position or otherwise, may be discharged from all claims of citizens of the State and others participating. Taxes and wages (not over $100) earned within six months are preferred. SOUTH CAROLINA. Assignments giving preferences are void, and all conveyances, mortgages, etc., within ninety days before assignment, are void unless made for present consideration. Creditors proving their claims before the assignee, and executing releases in full of their claims, are entitled to entire assets, if required to pay them in full. If anything remains, other creditors take it pro rata. SOUTH DAKOTA. Insolvent debtor may assign, reserving prop- erty exempt. Preferences are forbidden. TENNESSEE. In a general assignment no preferences are allowed. A conveyance or a judgment con. fessed within three months before assignment and in contemplation thereof is void. Debtor must file, under oath, schedule of assets. At- tachment or execution levied on property be- fore recording assignment is good. By a special assignment, as by deed of trust, a debtor may secure one or more of his creditors. A foreign general assignment, without regis- tration in the State, will not avail against a subsequent attachment. TEXAS. Insolvent debtors may transfer all their property, reserving that exempted by law, but this will not discharge them from unpaid por- tions of their debts. Also, an assignment may be made to benefit only such creditors as release the assignor from further liability, provided the assignee pays at least one-third of their claims. Accepting creditors must give notice of willingness to release within four months unless they did not know of assignment, and must file probated claims. When funds permit it, dividends of IO per cent, must be paid. UTAH. Any creditor or creditors may be preferred. Joint, or joint and several, debtors can prefer joint creditors only from joint property, and can prefer individual creditors only out of separate property. The deed must reserve no benefits to the assignor, but exempt property and life insurance will not be transferred by it unless the contrary intention be expressed. Creditors are entitled to notice by mail. Claims must be probated and filed. VERMONT. An inhabitant contracting and owing debts over $300 may petition court stating his in- ability to pay and his desire to assign. The creditors elect the assignee or the judge ap- points. Known creditors are entitled to notice by mail to prove claims and elect assignee. Claims not filed within six months after debtor is adjudged insolvent are barred. Creditors having claims of $250 or more may force the debtor into involuntary bank- ruptcy. Preferences within four months before filing petition are set aside. Debts and taxes due the United States and the State, not ex- ceeding $50, for services performed within six months before adjudication of insolvency, have priority. Discharges from debts are granted only where the estate pays 30 per cent, or more, unless a majority in number and amount of creditors assent. Corporations are not discharged. VIRGINIA. Assignments may contain preferences with- out limit. WASHINGTON. Where the assignment is honest, the debtor may be discharged from all prior indebtedness. Property exempt from levy by execution or attachment may be retained by the assignor. WEST VIRGINIA. An insolvent debtor may not make prefer- ences, yet creditors must take steps to resist them in order to prevent them becoming oper- ative. WISCONSIN. Preferences in assignments are void, as also are preferences sought to be effected within sixty days prior to assignment and in contem- plation thereof. Claims must be filed within three months from time notice is given. As- signee must mail notice to creditors. If insolvent debtor's property is attached or levied upon, he may within ten days assign all his property not exempt for all creditors, whereupon such levies, etc., will be dissolved. An insolvent debtor seeking to prefer creditors may be driven into bankruptcy by other cred- itors, a receiver taking charge of all except exempt property. WYOMING. Any person may assign all his property for his creditors. Any attachment or execution, payment or transfer within twenty days of as- signment is void if the party to be benefited had reasonable cause to believe the party in- solvent. Wages for three months before as- signment have priority. i \i;?iiTio\ OF iuoiEKTV i ito?i SALE, ETC, In the United States, Territories, Etc. Exemption is the right of a Debtor to retain a certain amount of property without its being liable to attachment, distress or execution, or any other process at the suit of a Creditor. A judgment creates no Hen upon property exempt from execution, etc., and execution creates no power over it. (21 Illinois, p. 105 ; 14 Ben. Monroe, p. 475.) It is placed beyond the reach of the law, in the absolute control of its Owner. The law will take cognizance of it only for the purpose of protecting the Owner in its enjoyment. (40 Mississippi, p. 49.) Property exempt before the death of a Debtor continues exempt afterward in favor of his Widow and Children. (47 Barbour, 7, 479.) ALABAMA. House and lot in city, town, etc., or in country, 160 acres not exceeding in value $2,000; also personalty, $1,000; wages, #25 per month. ALASKA. No homestead ; but specified articles in value from $750 to $1,000; also earnings for thirty days next preceding judgment. ARIZONA. Homestead not exceeding $4,000 in value ; household furniture, etc., $1,000; no exemp- tion to persons without family or dependents ; earnings, thirty days preceding levy. ARKANSAS. Personalty unmarried man, $200; mar- ried, $500; homestead not exceeding $2,- 500. In cities and towns, one acre; in coun- try, 1 60 acres; but if homestead be no more than eighty acres in country, or one-quarter acre in town, its value is unlimited ; wages for sixty days, not in addition to personal property. CALIFORNIA. A homestead of $5,000, if declaration of homestead is properly filed; also a large num- ber of specified articles of personalty ; per- sonal property with homestead not to exceed $1,000. COLORADO. Homestead not to exceed $2,000; claims must be recorded ; large number of specified articles of personalty, in favor of heads of families ; library and implements of profes- sional men exempt ; wages not to exceed $60. CONNECTICUT. Homestead, $ 1,000; claim must be recorded; necessary household furniture ; implements of Debtor's trade ; library ; live-stock ; wages, $50. DELAWARE. No homestead; $75 to $175 in New Castle County ; $50 to $150 in Kent ; none in Sussex. DISTRICT OF COLUMBIA. Furniture, $300; tools, $200; stock, $200; professional library, $300; family library, $400 ; earnings not above $100 per month to married persons; wages for two months not to exceed $200 ; salary of Government employes. FLORIDA. Homestead. 160 acres of land; one-half acre in city; $1,000 personalty to "heads of families;" all wages. GEORGIA. Constitutional, real and personal property to value of $1,600; statutory, fifty acres; five acres additional for every child under sixteen with certain restrictions must select; specified articles of personal property ; all laborers' wages exempt from garnishment ; exemption may be waived in writing, except $300 worth of furniture. IDAHO. Homestead, $5,000. Furniture, etc., farm- ing utensils, tools of trade, mining implements, professional library, instruments, wardrobe, cartman's team, etc. ; wages for thirty days. ILLINOIS. $ 1 ,000 homestead, and $400 personalty, to head of family; to others, $100 only; all wages above $8 per week liable to garnish- ment. INDIANA. $600 to householder. No property can be sold for less than two-thirds its appraised value, unless Debtor waive the relief; one month's wages. IOWA. Homestead, in town, half-acre ; country, forty ncres; also certain articles of personalty, and household and kitchen furniture, not to exceed $200; wearing apparel; wages for ninety days. KANSAS. In country, 160 acres; one acre in city. Stock in trade, $400; furniture, farming tools, live-stock, professional library, etc.; wages for three months under certain conditions. KENTUCKY. Land and dwelling house not exceeding $1,000, specified articles of personal property of limited value, professional library to the value of $500; wages, $50. LOUISIANA. One hundred and sixty acres of land not exceeding $2,000 in value. Claim must be registered. Certain enumerated articles of personalty ; all wages of laborers. 'MAINE. Homestead, if daily claimed, $500. A large number of enumerated articles of personalty ; limited wages. MARYLAND. One hundred dollars of property, except for breach of promise or seduction. MASSACHUSETTS. Homestead valued at $800, if properly re- corded as homestead property ; also certain articles of personalty ; wages, $20, under conditions. MICHIGAN. $1,500 homestead; furniture, $250; stock, $250; books, $150; live-stock; wages, $25. MINNESOTA. Eighty acres homestead, or lot and house in platted city or village of over 5,000 population, (673) 674 EXEMPTION. or one-half acre if population is less than 5,000; sundry articles of peisonalty; life in- surance to survivors, $10,000; wages, $25. MISSISSIPPI. Homestead not over 160 acres, or $2,000 in value. May be increased to $3,000 by proper proceedings; wages to head of family, $100 per month; other persons, $20; sundry other articles of personalty. MISSOURI. Homestead, $1,500, and $300 personalty to heads of families. In cities of 40,000 inhab- itants, homestead may be $3,000 in value ; wages for thirty days. MONTANA. Homestead, country, used for agricultural purposes, 160 acres, with buildings, etc. ; in town, one-fourth acre; value, $2,500, and the usual amount of personalty exempt in such cases ; wages for thirty days. NEBRASKA. Homestead, $2,000, or in lieu thereof $500 as personalty ; also specified articles of person- alty to heads of families; wages for sixty days. NEVADA. Books, etc., $100; furniture, live-stock, seeds, etc., $400 ; tools and professional in- struments; miner's cabin and tools, $500 each ; wages, $50 ; homestead, $5,000 to heads of families. NEW HAMPSHIRE. Homestead, $500 ; furniture, tools, certain live-stock ; wages, $20, not good as against necessaries. NEW JERSEY. Homestead, $1,000, if advertised and re- corded, $200 selected by the debtor from the goods levied on and appraised, and all wear- ing apparel of head of a family ; all wages. NEW MEXICO. Homestead, $1,000; specified articles and $500 when not owning a homestead ; wages for three months under certain circumstances. NEW YORK. Certain specified articles, and $250 worth in addition, except for purchase price; also $1,000 homestead, when recorded as such and occupied by debtor; wages for sixty days. NORTH CAROLINA. One thousand dollars real estate and $500 of personal property; wages for sixty days under certain conditions. NORTH DAKOTA. Homestead to the value of $5,000. If widow or widower occupy premises, the same; also personalty, $1,500; partnership firms, $1,500. OHIO. Certain specific articles of household furni- ture, etc. Homestead, $1,000, or to head of family in lieu of homestead, $500 personalty ; wages under certain conditions. OKLAHOMA. To head of family 160 acres, outside of city ; inside of city one acre ; furniture, live- stock; ninety days' wages; to single person only apparel, books, wages, etc. OREGON. Household furniture, etc., $300. Tools, etc., $400; other personalty, about $225; family homestead, $1,500; Wages for thirty days under certain conditions. PENNSYLVANIA. Personal or real estate to the amount of $300. It may be waived in writing; all wages. RHODE ISLAND. Household furniture and family stores not exceeding $300 ; wearing apparel and tools to value of $300; debts secured by note; limited wages under certain conditions. SOUTH CAROLINA. A homestead exemption of one thousand, and $500 in personalty are allowed ; wages for sixty days, if family depends on them (to married or single men). SOUTH DAKOTA. Homestead, 160 acres in country, or one acre in town or city, to the value of $5,000; also exempt $750 personalty on all debts created since July I, 1890, to heads of families, and $300 to single persons, not heads of families; otherwise $1,500 to all persons; all life insurance money received by widow or children ; no exemption against purchase price ; wages for sixty days if necessary to support of family. TENNESSEE. Homestead, $1,000; a large number of specified articles of personal property; wages, $30, for laborers and mechanics. TEXAS. Specified articles of personalty ; homestead in country 200 acres, in city, land $5,000 in value at time of designation, without reference to value of improvements; all wages. UTAH. Homestead of Value equal to $1,500 for judgment Debtor, $500 for wife, and $250 for eacli child; also specified articles not ex- ceeding $1,000; and one-half of wages for sixty days, not exceeding $100. VERMONT. Homestead, $500; specified articles of personalty. VIRGINIA. Two thousand dollar homestead, except when waived. Specified articles of personal property which could seldom exceed $300 in value; wages, $50 per month. WASHINGTON. Homestead, $2,000, homestead declaration being necessary; to householder, $1,000, in addition of personal property; specified articles ; current wages to amount of $100, if family is dependent thereon. WEST VIRGINIA. To head of family, $200 personalty ; $1,000 homestead, if recorded as such. WISCONSIN. Homestead, in couniry, forty acres; in city or village, one-quarter of acre; furniture, $200 ; also certain specified articles; wages for three months, not exceeding $60 a month. WYOMING. Homestead, $1,500. Tools, library, etc., $300. Household property, ' $500. Wearing apparel, $150, etc., etc.; wages not exceeding $100. STATUTES OF LIMITATION. THE TIME WITHIN WHICH AN ACTION OR SUIT may be Commenced on a Claim, Debt or Demand after the Right of Action Accrues (arises, com- mences), and before the same is Barred (outlawed). * Under seal, 10 years, f If made in State; if outside, 2 years. J No law and no decision regarding judgments. || Under seal, 20 years, fl Under seal, 12 years. ** Real estate, 20 years. JJ Becomes dormant, but may be revived. \\ Under seal, 14 years, (a) Action on Merchants' accounts must be commenced in two years, (r) Ten years in New Castle County, twenty years in Kent and Sussex Counties, Del. (e) Negotiable notes 6 years, non-negotiable 17 years. (/) Ten years in new law, 20 years in old law. (A) These are Instruments of Writing under seal, as Bonds, Contracts, Conveyances, Deeds, Mortgages, and the like. They are not merely written, but signed, sealed and delivered by the party bound by them. Witnesses and seals are often required by these instruments. (') If discounted in banks, 5 years. (/ ) When acknowledged in writing, 6 years. THE UNITED STATES AND TERRITORIES. Claims Against Estates of Deceased Persons. Injuries and Wages. Years. Accounts and Book Debts. Years. Notes and Bills. Years. Judg- ments. Years. Special- tics. A Years. Months. Years. 18 i 6 3 3 2 6 6 3 3 4 4 4 1 3 S ()5 6 **3 6 6 6 (3 5 3 4 4 6 6 6 1 6 I 6 6 6 6 6 6 2 3 6 8 6 6 6 6 6 6 5 *6 6 5 tj 6 W 6 3 1 S 10 10 5 10 (O'l I* \i 6 6 6 10 8 6 6 6 6 6 *l IS 6 6 6 6 6 I %6 ' 1 10 6 5 6 6 6 6 6 6 5 20 IO 5 10 ,: 5 12 2O ^ 6 20 ** 10 IO 20 5 15 10 20 12 20 10 10 7 10 10 20 6 20 20 7 20 IO (/)' 21 6 IO 20 20 20 20 10 IO 8 8 10 6 IO 20 21 IO 20 2O 20 20 20 3 IO i i 3 i 1-6 i i 2 I 3 1-2 2 I 2 1-2 I I 2 2-6 2 2 I 2 2 I 2-4 I 2 I 2 I 2 '-4 1-2 1-6 i i 2-6 3 i 1-2 I 2 5 1-2-3 5 2 2 4 5 34 i? 20 13 2O 20 5 IO 20 S 10 15 15 20 20 13 20 10 10 6 10 6 10 6 20 16 6 30 IO 20 IS 5-'5 10 20 3O 2O S-io 2 C 1'f nia 4-10 P 1 d I uoior 6-10-18 n i I 13-17 a Idaho a X 2 Indiana 6-12 i-3 a K ntuckv T ' ' a 12 i M arhimctts 3 3 M' h' n M' sota 12- 8 M" ' " i 2 a 4 8 o 6 18 N M "co a i a New York 4-6 9-18 2-15 6 i 3 i *K-3# 4 i IO 6 10 10-30 6 20 Utah 6 12 i 6 i THE DOMINION OF CANADA. N R ! Vlr 18 2 N f dl d o' una a 18 I I 3O 2O 3O O t 6 " 1-2 (675) INTEREST UPON MONEY, ETC. Interest in the United States, Territories, Etc. STATES, ETC. PENALTIES FOR USURIOUS CONTRACTS. LEGAL. AGREED. Alabama Loss of interest and, in some cases, costs 8 $ c Alaska Forfeiture of debt to school fund 8 " Arizona No penalty 7 Arkansas Contract voided 6 California No penalty 7 Colorado ! " 8 Connecticut No recovery beyond legal rate 6 Delaware. Forfeiture of principal, or equivalent 6 District of Columbia... i of all interest if sued for in one year 6 Florida ! of all the interest 8 Georgia i of excess 7 Idaho I of 10 per cent, of principal 7 Illinois i of entire interest 5 Indiana | " of all over 6 per cent 6 Indian Territory j of principal and interest 6 Iowa ! of interest and costs of suit 6 Kansas ! " of double the sum in excess of 10 per cent 6 Kentucky ' of excess interest 6 Louisiana " of interest 5 Maine No penalty 6 Maryland Forfeiture of excess interest 6 Massachusetts No penalty 6 Michigan Forfeiture of entire interest 6 Minnesota i " of debt and interest 7 Mississippi J " ofall interest 6 Missouri : " of 10 per cent, interest to school fund 6 Montana No penalty 10 Nebraska Forfeiture of all interest 7 Nevada No penalty 7 New Hampshire Forfeiture of three times amount of illegal interest 6 New Jersey " of interest and costs 6 New Mexico " double amount excess interest. Fine 6 New York " of debt and interest 6 North Carolina " ofall interest 6 North Dakota " of interest 7 Ohio " of excess over 6 per cent 6 Oklahoma Territory .. " of all interest 7 Oregon " of principal and interest to school fund 8 Pennsylvania " of excess interest 6 Rhode Island A.r>y rate fixed by parties is legal 6 South Carolina [Forfeiture of double the sum received, to be collected by a separate action, or allowed as a counter claim.... 7 South Dakota " of interest; usury is a misdemeanor 7 Tennessee " of excess interest 6 Texas " ofall interest 5 Utah No penalty 8 Vermont Excess may be recovered back 6 Virginia Forfeiture of all interest 6 Washington " of twice the amount of accrued interest and costs.. 7 West Virginia " of excess interest 6 Wisconsin " of all interest; also right of recovery of treble amount of usurious interest which may have been paid 6 Wyoming " of all interest 8 8 Tic. 10 '' No limit. 10 *c. No limit. No limit. 6 We. No limit. No limit. 10 c. No limit. 6 $c. 6 " 6 " No limit. 6 " 10 " No limit. 6 " ' 12 " 6 " 10 " Interest in the British American Provinces. PROVINCES, ETC. PENALTY FOR USURY. LEGAL. AGREED. Ontario Quebec New Brunswick Nova Scotia Prince Edward Isle Manitoba British Columbia No penalty . 6 6 6. 6 6 6 No limit. (6 7 6) DAYS OF GRACE. STATES. Is GRACE ALLOWED ON Saturday Half Holiday. NOTES MATURING ON Sight or Demand Paper? Time Paper? Saturday. Sundays and Holidays. yes yes yes no no no no no no no no no Sight, yes ; demand, no yes Sight, yes ; demand, no no Sight, yes ; demand, no no Sight, yes ; demand, no no Sight, yes ; demand, no Sight, yes ; demand, no Sight, yes; demand, no yes no no Sight, yes ; demand, no Sight, no ; demand, yes no no yes no Sight, yes ; demand, no no no yes no no yes Sight, yes ; demand, no yes no Sight, yes ; demand, no no no no yes yes no yes yes yes yes yes no no no no no no yes no no yes yes yes yes yes yes no no no yes yes yes yes no yes yes yes no yes no yes no no yes no no yes yes yes yes yes no no no ryes yes no yes yes no no no ryes yes yes yes yes no no no ryes no no ryes no no yes no Baltimore only yes yes ryes no yes no no no ryes yes no yes no no Ayes no no yes yes ^Cha'ston only no no m yes no no yes ryes no ryes no yes Payable Same day. Next bus. day. Monday. Next bus. day. Same day. d " Monday. Same day. Monday. Same day. Monday. Same day. Monday. Next bus. day. Monday. Same day. Next bus. day. Monday. Payable Day after. " before. " after. " before. ' after. a " before. :< after. " before. b " " after. Next bus. day. Day before. " after. " before. " after. " before. i " after. " before. ' after. j ' before. ' after. Next bus. day. Day after. " before. * " " i " " " after. * ;; ;; " before. * after. " before. " after. District of Columbia.... Florida Idaho Kansas Massachusetts Mississippi Montana Nevada New Hampshire New Mexico New York North Dakota Ohio Oklahoma Territory.... Oregon Rhode Island South Dakota Tennessee Same day. s " ' Monday. Texas Utah \Vashington Wisconsin AVyoming Canada a When a holiday falls on Saturday, notes due Saturdays and Sundays are payable on Friday. b If a Sunday and a holiday come together, that is Sunday and Monday, the paper maturing on Monday is payable on Tuesday. d Unless a holiday. f If the day before is Sunday or holiday, then the day after. f If in Baltimore, next business day. g- When holiday occurs Monday, note is payable Tuesday. h In cities having 100,000 inhabitants or more. i When two holidays come together, the first the day before and the second the day after. j If holiday falls on Saturday, notes are payable on Monday. k In towns and cities of over 50,000 inhabitants. / In city of Charleston only. m By custom only, during the summer. n If grace is waived, the day after. /Notes dated prior to May i, 1896, the day before. r By custom only. s If without grace. t Unless grace is allowed. If last day of grace falls on Sunday or a holiday, then tXe previous business day. (677) INDEX TO LAW. See INDEX TO FORMS, post. Page Abandonment I of Contract 195 of Insurance 464 of Land 613 Abatement in Contracts 195 of Legacies 366 Abduction 482 Abbreviations 1O9 Abetting Crimes 485 Abortion 482 evidence of. 516 Abridgments, Copyright 397 Absolute Conveyances 265-312,363 Abstracts of Title 263-265 Forms 264,265 Abuse 482 Acceptance 1 of Bills of Exchange 16O-163 of Payment 6O6 Accep tances by Partners 556 Accessary in Crimes 482 Accessions, Copyright 397 Accessory Contracts 195 A ccident 1-2 Accord 195 A'Bconchment, Evidence of 516 Account 2-14 Books 2 Copyright 398 Forms 4-14 Stated 8-3 Accuracy in Contracts 199 Accusation 482 Acknowledgments 14-45 Forms 14-45 Acquiescence 45 Copyright 397 Acquittances 197, 623 Acquittal : 484 Actions, Between Partners 56O by Limited Partnerships 562 for Torts 635 for Wrongs 635 Civil, Evidence in 45O Criminal, Evidence in 45O Acts 45-5O of Congress. See Copyright. 398-416 See Patents 565,578,605 of God 45 Overt 5O7 Partners 558 Acts or Omissions 197 Actual Damages 421 Additions, Copyright 398 Ademption of Legacies 366 Adequacy of Consideration , . . . . 202 Page Adjustment of Insurance 465 Administration, Ad Interim 43O Ancillary 43O To Collect and Deliver, etc 431 De Bonis Non 431 During Absence 431 During Minority 431 of Estates 430-432 Foreign 431,480 Pendente Lite 432 Public 482 Special or Limited 482 With Will Annexed 432 Admiralty 476-477 Admission of New Partners 558 to Corporations 418 Admissions, Evidence 434 Admonition 484 Adulteration 484 Adultery 484 Adverse Enjoyment, Real Property 61 1 Possession, Real Property 611 Affection as a Consideration 2O2 Natural, in Conveyances 271 Affidavits 5O-53 Evidence 5O Forms 51-53 Affirmance of Contracts 197 Affirmation of Issue, Evidence 45O Affirmations 435 Affray 484 Affront 484 Aforethought 484 Age of Testator S7O Agency 53-88 Agent 54 Agents 45-64 Authority 113 Bills, Bonds, and Notes 158 Confidential Communications to 438 Agistry of Cattle 89 Agreed Liens 539 Agreements 193-263 Distinguished from Torts or Wrongs 635 for Insurance 46.t Lossof. 542 Aggravation 484 Aiding and Abetting in Crims 485 Aid and Comfort to Criminals 485 Air 612 Alibi, in Evidence 435 Aliens 513 Copyright 398 Allowance of Interest- ...,..,....,..,. 469 678 INDEX TO LAW. 679 Page All mule Evidence 439 Alluvion, Real Property 612 Alteration of Contracts 197 Alterations by Publishers 398 Ambiguity of Contracts 197 Ambiguous, Conditional, and Ir- regular Bills, Bonds, and Notes. . 154 Amendment of Accusation or Com- plaint 483 Amendment of an Affidavit 50 Copyright 4O8 Amercement 485 Amnesty 485 Amotion 418,485 Amount Covered, Insurance 465 of Insurance 465 Amounts, Descriptions, etc 5O Analysis of Poisons 53O Animal Poisons 53O Animals 89-92 Anticipation 45 Apoplexy, Evidence of. 516 Evidence of Death from 52O Apothecaries' Weights and Meas- ures 643,644 Appearance by Attorney 81 Applications for Insurance 463 for Patent 582 of Payments to Bills, Bonds, and Notes 172 Appointment of Agent 54 of Attorneys 72-8O, 82, 83 of Arbitrators 64 Apportionment 197 Apprenticeship 92-95 Forms 94,95 Arraignment 485 Arrangements Between Creditors and Debtors 198 Between Partners 557 Arbitration 64-72 Forms 67-72 Arbitrators, Referees and Um- pires 64-72 Areas, Real Property 612 Arrest 485-489 Arson 489 Articles, Copyright 399 of Agreement 223-263, 4O2 Artifices in Contracts 198 Artificial Boundaries to Real Prop- erty 612 Asphyxia, Evidence of. 516 Evidence of Death from 52O Asportation 489 Assault 489 Assembly, Unlawful 49O Assessment of Damages 422 Assent in Contracts 194, 1O8, 199 Assignments 96-1 08 of Apprenticeship 92 Conflict of Law of. 479 of Copyright 398 of a Debt as a Consideration 2O3 Forms 97-108 . of Mortgages 335 of Patents 593 Assurance, Covenant of. 266 Astronomical Measures. .............. 643 Page Atheists, Evidence 458 Attainder 49O Attempts to Commit Crime 49O Attestation of Contract* 199 -of Conveyances 266 -of Witnesses 273 Attorneys 72-83 Confidential Communications to 438 al I,aw v SO Forms/ 72 so, 82, 83 in Fact 751 In Patents &V Auctioneers 8ft Authentication 1O9 Forms 199 Authorities I os 1 1 o Authority of Agents 45, 55 Authors, Accounts 398 Contracts 4O1 Who are 4O Avoirdupois Weight 644 Avulsion, Real Property 612 Award of Arbitrators, etc. 66 Backside Tard 266 Baggage 113 Bailees 83-111 Bailments 11O-143 Bailor.... 112 Banishment 49O Bank Acconnt 2 Bills, Payment of. 218 Notes 144 Forms 144 Bankruptcy 4OO Bargain and Sale 266 Bargains 193-263 Catching 199 Barratry 49O Barter 199 Battery 49O Bawdy-Houses 491 Bearing Date 266 Beasts 89 Bees 89 Behavior, Surety for Good 5O2 Behoof 266 Belief, Evidence 435 Bequest of Copyright 4OO Best Evidence 435 Bequeathing 363 Betterments, Real Property 612 Bigamy 491 Bills of Exchange 143-17* Drawn by Partners 556 Forms 1 47 Foreign 4SO Bills of Indictment 491 Bills of Lading 113-121 Forms 114-121 Lien on 54O of Sale 633 Forms 633 Bills of Pains and Penalties 491 Binding Apprentices 92 Partners, etc 558 Bipartite Contracts 199 Conveyances ,., 26 INDEX TO LAW. 680 Page Birth, Evidence of. 517,526 Blank* in Contracts 199 Evidence Concerning 435 Blindness of Testator 37O Blasphemy 491 no Copyright in 4OO Blood, Cool Blood 495 Bodies Politic 46 Body Corporate 419 Body, Dead 496 Body of the Offence 495 Body Politic 419 Bona Fide 199 Bonds or Obligations 179-192 Forms 181-192 Loss of. 542 Bonds Negotiable 144-146 Book 413 Book-Keeping 7-14 Forms 7-14 Book Measure 643 Books. See Copyright 413 Books of Account 2-14 Borrowing Horses 9O Boundaries to Real Property 612 Breach of Contract 199 Breach of Warranty 633 Breaking Bulk 491 Breaking Doors to Arrest 488 Breaking House 5O3 Bribery 492 Brokers 84 Forms 84 Brothel 492 Bruises, Evidence of. 518 Buggery. See Sodomy 5O9 Builders' Lien 54O Buildings 613 Bulk-Breaking 491 Burden of Proof 435, 449, 45O Burglary 492 Burning, Evidence of Death 52O Business, Course of. 121 By-laws of Carriers 128 Calendar, Criminal 492 Calendars, Copyright 4OO Cancellation of Wills 363 Capacity for Crime 492 Measures of. 643 CapaxDoli 492 Capital Stock of Corporations 419 Carnal Knowledge 49S Carriers 84,112-131 Measnreof Damages 423 Carrying Away 493 Castration 493 Catching Bargain 199 Cattle 89 Caveat Emptor 613 in Sales of Personal Prop- erty 627 Caveats in Patent Office 593 Cerebral Poisons 530 Cerebro-SpHial Poisons 53< Certainty in Contracts 199 Certificates of Deposit 149 Certified Checks 148 Challenges 498 Pag* 'hamperty in Contract* 199 Chance Medley 498 Change of Domicil 426 of Name 561 Character, in Evidence 436 Charges in Account Books 2 Dharities 363 Charts. See Copyright 418,414 Chastity 493 Offences Against 482 Chattel Mortgages 334, 48<1 of Copyright 4OI Chattels, Tender of 222 -and Goods ><>- -and Goods, in Wills 364 Cheat 403 Checks 148 -Forms 149 -Payment in 218 Chemical Analysis of Poisons 530 Children 46 -Legatees 367 Chromos. See Copyrights 413 Circumstances, in Evidence 436 Circumstantial Evidence 449 Citations 1O9 Citizens 413 Civil Actions, Evidence in 45O Civil Law 477 Civil Pleadings 609,610 Clauses in Contracts 2OO Clergymen, Confidential Commu- nications to 438 Clerks 84 Closinga Ledger 1O Cloth Measure 643 Coasts, Real Property 613 Code Law 471 Codicils 363 Coercion 46,493 in Contracts 20O Cold, Evidence of Death by 52O Collateral Agreements in Bills, Bonds, and Notes 154 Collision, Lien for 54O Collusion in Contracts 2OO Commission 131 Merchants 85 of Torts or Wrongs 636 in Contracts 2OO Common Carriers of Freight 112-127 of Passengers 127-131 Common, Estate in 614 Law '.477,478 Scolds 494 Seal of Corporations 419 Sense 518 Communications, Confidential 438 Priorto Contract 437 Privileged 45O Company 419 Competency of Witnesses 452 Compilations, Copyright 4O1 Compilers, Copyright 4OO Complaints 494 Compound Interest 469 Compounding Crimes 494 Felonies 494 Misdemeanors 494 INDEX TO LAW. 68 1 Page Comprom ises 200 4 '< in p 11 1 s i o 1 1 46 in Contracts 2OO Compulsory Confessions, Evidence 437 Computing Interest 469 Concealed Delivery, Evidence of. . . 517 Concealment in Contracts 2O1 Conclusions, Evidence 444 Conclusive Evidence 434-437 Conditions in Bonds 179,180 in Contracts 2O1 Conditional Con vey ances . . 265, 312, 334 Sales 627 Conditional and Irregular Bills, Bonds, and Notes 154 Confederacy 494 Confessions, Evidence 437 Confidence and Trust as a Consid- eration 2O6 Confidential Communications, Evi- dence 438 read Freight JLien 54O Death 426 Gifts in Prospect of 461 Effect Upon Contracts 21O Evidence of - 439 of Partners 559 Debt of Another. See Fraud 458 Debts, Affecting Legacies 367 incidence of. 21O of Partners 558 Decay, Internal 123 Decency, Offences Against 482 Declarations, Evidence 439 Deed Poll 268 Deeds 265-313 Acknowledgment 14-45 in Evidence 455 Forms 273-312 Loss of 542 Receipts in 624 Default of Another. See Fraud 458 in Contracts 21O Defaulting 496 Defeasance in Conveyances 268 Defects in Horses 9O Defendants, Evidence 454 Defences in Divorce 546 - to Torts or Wrongs 636 . to Trespass 641 Delay 4O3 Del Credere Commission 55 Delegation of Agents' Authority ... 55 Delirium Febrile, Evidence of 518 ofTestator 37O Tremens, Evidence of. 518 Deliberation in Contracts 21O Delivery of Bonds 179 in Contracts 21O of Conveyances 269 Evidence of 517 in Sales 628 Delusion, Evidence of 521 Demand in Actions on Contract 211 Dementia, Evidence of 521 Senile 370 Demonstration, Evidence 44O Demurrage 122 Dependent Contracts 211 Deposit 131 Depositions, Evidence 44O for Patent Cases 595 Derelict Land 613 Deri vati ve Conveyances 265 Discrediting Parties 441 Witnesses 441 Description in Contracts 211 Desertion 496 Designation in Wills 364 Designs. See Copyright 413,414 How to Obtain Patent for 573, 574, 591 Destruction of Real Property 621 Detainer of Land 613 Deviations from Contract* , - 211 Deviations in Insurance 465 Devise 364 Dictionaries, Copyright 4OO, 4O3 Digests, Copyright 4O3 Diligence 46 Direct Evidence 441 Directors of Corporations 419 Directories, Copyright 4O4 Disafflrmance of Contracts 211 Disclaimers in Patent Cases 59O Disfranchisement in Corporations 419 Disorderly House 496 Disorders, Contagions 495 Disputing Wills 365 Dissent in Contracts 211 Dissolution of Agents' Authority . . 56 of Partnership 551 Dissuading Witnesses 496 Distinctness in Contracts 199 Dividends 419 Divorce 544-546 Documents, Public, Evidence. . 434, 45O Dogs 89 Domain, Eminent 614 Domicil 425,426 Law of. 510,511 Doors, Breaking to Arrest 488 Dormant Partners 555 Double Damages 422 Double Entry, Accounts 7-14 Doves O Dower, Estate in 615 Drainage of Land 614 Dramatic Compositions. See Copy- right 418 Drawing Bills of Exchange 153, 154 Drawings. See Copyright 413 for Patents 583 Dripping Water on Land 614 Drowning, Evidence of Death by. . . 52O Drunkenness 159,521 Duelling 496 Duress 46 Duties of Agents O of Apprentices 3 of Arbitrators] 64 of Attorneys 81 of Carriers 123 of Coroners 519-521 Earnest in Contracts ................... 211 Easements, Real Property ........... 614 Eavesdroppers ........................... 497 Effect of Delivery in Sales. . . . ........ 629 _ of dissolution of Partnership.. 553 - of Fraud ............................... 457 - of Evidence ........................... 4 - of Payment ........................... fl Effects, in W r ills ......................... a64 Elements of Criminal Offences ...... 481 Embezzlement .......................... 497 Emblements 473 Embracery Eminent Domain 49' Emission 522 Employment of Apprentices 93 Engraving. See Copyright 4O4, 413 Engrossing t 497 INDEX TO LAW. 683 Page Enjoyment, Adverse, Real Prop'ty 611 Covenant for 267 Enticing Away Apprentices 93 JBntirety in Contracts 211 Entries, Original, in Accounts 3 Entry 46 Epilepsy, Evidence of 522 Equality of Contracts 212 Equity 426-429 Pleading 428,607 Practice 428 of Redemption, Real Property . . 614 Equivocal Contracts 212 Erasure of Contracts 212 Escape 497 Escrow in Conveyancing 269 Estates 429-433 in Real Property 614, 615 Estimation in Conveyances 269 Estray Animals 9O Eviction, Real Property 615 Evidence 434-456 in Actions on Bills, Bonds, and Notes 176, 177 Extrinsic in Contracts 2O7 of Payment 6O7 Exaction 498 Examined Copies, Evidence 442 Examination, Cross Examination. 454 Direct Examination 455 for Patents 585 Preliminary Examination 441 Re-Examination 455 of Witnesses 454 Exceptions in Contracts 212 Excessive Damages 422 Exchange Brokers 84 Excusable Homicide 498 Executed Considerations in Con- tracts 2O3 Executed Estates 429 Execution of Conveyances 269 by Deatb Penalty 498 Executors, Bills, Bonds, and Notes 159 Foreign 48O Executing Estates 429 Exemplary Damages 422 Exercise of Agents' Antbority 57 Existing Lions 539 Expectancy, Estate in 615 Expense in Conveyances 269 Experts, Evidence 442 Ex Post Facto Law 511, 512 Exposure of Person 498 Express, Parcels by 125 Warranty in Sales 631 Expulsion from Corporations 419 Extension of Copyright of Patent 59O Extent f Agents' Authority 56 Extenuation of Crime 498 Extortion > 498 Extradition 5O1 Extracts of Works 41O Evidence 442 Extrinsic Evidence in Contracts 207,442 Facts, Evidence. 442 Facts, Ignorance of. ................... 462 Factors ................................. 85,187 Failure of Consideration In Bills, Bonds, and Note* ...................... 151 - in Contracts .......................... 2O3 False Personation ...................... 5O8 - Pretences ............................. 49H Falsifying Records ..................... 499 Farm, in Wills ........................... 364 Fear ......................... . .............. 499 Fee Simple, Conveyances In ......... 269 - Estate In .......................... 249,615 Fee Tail, Conveyances in ............. 269 - Estate in ................. .. ............. 615 Fees, Copyright ........................ 415 - Patent ............................ 574-594 Felonies .................................... 499 Fences, Real Property ................. 616 Feoffnient in Conveyances ........... 27O Fines ....................................... 499 Finders' Duties and Rights and Re- sponsibilities ..................... 542, 543 Firm Name .......................... 560,561 Fish ......................................... 9O Fixtures to Real Property ...... 473, 616 Flight ...................................... 499 Fcetlcide, Evidence of ................. 522 Foetus, Evidence of. .................... 523 Forbearance, etc., as Consideration 2O3 Foreign Laws, Conflict of. ............ 479 - Patents ........................... 592,593 Forestalling the Market .............. 499 Forfeiture ................................. 499 - of Bonds ............................... 18O Forgery .................................... 499 - of Receipts ............................ 625 Formal Requisites in Bonds ---- 180, 181 Formality in Assignment ........... 96 - in Contracts .......................... 212 FORMS. See INDEX TO FORMS, post. Fornication .............................. 50O Forthcoming Bond ..................... 179 Forum, Law of . ..................... 512, 513 Forwarding Merchants ........... 85, 132 Fraud ...................................... 47 - in Contracts .......................... 212 - -Criminal .............................. 5OO - in General ....................... 456, 46O - of Partners ........................... 556 Fraudulent Conveyances ............. 265 Free Passes ............................... 129 Freight ..................................... 123 - Common Carriers of. .......... 112-127 - Lien ..................................... 54O Fugitives from Justice ................ 5O1 Full, Receipts in ........................ 624 Furniture, Household, in Will* ---- 364 Future Contracts of Partners ....... 556 - Estates ................................. 429 Game 9O Gaming 5O1 Con tracts 212 Houses 5O2 Gaseous Poisons 53O General Partnership 549 General Rules of Construction in Contracts... .. 2O8 IM>i:\ '10 LAW. Geographical Measure <.EX TO LAW. iS 7 Pag* \jiun-s 5O of Corporation* 42O of Legatees 368 of Partnerships 56O, 561 Narcotic Poisons 53O Natural Affection in Conveyances. . 271 Boundaries to Real Property... 612 Nature of Evidence 434 Necessaries 547 Necessity 47 in Crime 5O6 Negligence 47 of Carriers ISO Negotiable 14* Bonds 144-146 Notes 143-178 Loss of 542 Nephews, Legatees 368 Newly-Discovered Evidence 446 Nieces, Legatees 368 Night Walkers 5O7 Nominal Damages 424 Non Compotis Mentis 47 Bills, Bonds, and Notes of 159 Non-Acceptance of Bills 'of Ex- change 163-165 Non-Negotiable Bills and Notes 143 N on-Pay ment of Bills and Notes 168-172 N on-Performance 47 Note Brokers 84 Notes 143-178 . Bank 144 Drawn by Partners 556 . Forms of. 149,150 Loss of 542 Promissory, Foreign, Lost 47O . Sale of, etc 47O Notice 47 by Carriers 126,127 in Contracts 216 of Copyright 415 Judicial 437,444 of Non-Payment of Bills, etc., Service of. 169-172 of Protest 164 Novation 547 Nuisance 548 Number in Corporations 42O Singular 369 Nuncupative Wills : . . . 363 Onths, Evidence 446 Obedience 48 Object of Evidence 434 Obligation of Bonds ISO of Contracts 216 Obligations of Partners 559 Obscene Works, no Copyright 4O9 Obscenity 5O3 Obstructing Process 5O7 Offences, Public 481-51O Offers to Contract 217 Olographs 368 Omissions 48 of Partners 558 Open Accounts 2 Opinions, Evidence 446 Oral Evidence, Cannot be Substi- tuted for Writing, etc 449 44 Pag. Original Conveyances 265 Entries, Account* 3 Originality in Copyright 4 1 o Originators, Copyright 4OO Originals in Evidence 447 Overt Acts 48,507 Owners 549 Joint, of Copyright 4O5 of Ships, Lieu of 541 Package, Bad, in Shipping 123 Pains and Penalties, Bills of 491 Paintings. See Copyrights 413 Paper, Measure of. 643 Papers, Lost 445,542 Paralysis, Evidence of. 516 Pardon 5O7 Parol Contracts 217 Evidence 447 Part Owners of Ship's. Lien of. . . . . . 541 Payment 218 Performance ~_ 219 Particular Estates ,. 43O Partition in Conveyances 271 Partial Insanity of Testator 37O Loss, in Insurance 465, 466 Parties to Bonds 181 to Bills, Bonds, and Notes.. . . 158-16O Character in Evidence 436 to Contracts 194,217 Discrediting,.in Evidence 441 Entitled to Copyright 413 Evidence by 453 in Sales 629 Partners 86,559 Bills, Bonds, and Notes of. . . 159, 16O Lien 541,558 Partnership 549-562 Parts of Works, Copyright 41O Pass, Free 129 Passengers, Common Carriers of 127-131 Patent Office 565,567 Patents, Designs, and Trade-Marks 562-605 Forms 597-6O5 How to Obtain 567-597 Practice Concerning 578-605 Pathology 53O Pawn 136-138 Brokers _. 84 Payment 605-609 of Bills and Notes 16O, 165, 172 of Contracts 218 into Court ISO, 6O7 of Legacies 368 of Freight 124 Peace, Public Offences Against 482 Penalty in Bonds 181 Penalties 5O7 Bills of, etc 491 Pencil 268 Perfidy 48 Performance 48 of Contracts 219 Perils in Insurance 467 Periodicals, Copyright 41O Perjury ... 5O7 Permanent Fixture*. 473 68$ I M>KX TO LAW. Permissive Waste, Real Property.. 621 Perpetuating Evidence 447 Person, Indecent Exposure of 498 Personal Inspection 434 Property 6O9 Trespass on 639 Representatives 48 Persoiiam, Proceedings In 479 Personation, False 5O8 Persons 6O9 Persuasion 48 in Wills 37O Pews, Real Property 619 Photographing, Copyrights 41O Physicians 53O Confidential Communications to 439 Piano Scores, Copyright 41O Piracy 5O8 in Copyright 405,411 Place, Law of 535, 536 ol Situation of a Thing 536 Plaintiff's Possession in Trespass. 64O Plan or Method, Copyright 411 Plats, Real Property 619 Pleadings 6O9, 61O in Bills, Bonds, and Notes.. . 177, 178 Under the Copyright Law 411 Pledge 136,138 Point in Issue, Evidence 449 Poisons, Evidence of. 53O Policies of Insurance 464 Policy, Public, Offences Against . . . 482 Possessed 619 Possession, Adverse, Real Property 611 Covenant of 267 Estate in 615 Plaintiffs in Trespass 64O Positive Evidence 447 Possibilities, Real Property 619 Pounds for Animals 91 Powers of Agents 57 Coupled with an Interest. 58, 59 of Attorney, Acknowledgment 14-45 Forms 72-8O . of Partners 555,558 Practice 611 in Bills, Bonds, and Notes. .. . 176-178 Concerning Patents 578-6O5 Precatory Words 37O Pregnancy, Evidence of 53O, 531 Preliminary Examinations 441 Premises 271 Prescription, Real Property 619 Presence of Parties in Contracts. . . 219 Presentment and Payment of Bills and Notes 16O-165 for Payment of Bills and Notes 165-172 Presumptions of Law in Contracts 2O9 President of Corporation 42O Presumptions, Conclusive 447, 448 Disputable 447,448 of Fact 448 of Law 448 Rebnttable 448 Presumptive Evidence 447 Pretences, False 499 Pretended Delivery, Evidence of. . - 517 Price, in Hales 629 Prima Facie Evidence 434, 448 Primary Evidence 434, 448 Principals 86 Duties and Liabilities and Rights of Agents to 6O,62 Principles no of Criminal Law 481 Printed Copies of Laws, Evidence. . 444 Private Arrangements Between Partners 557 Carriers 131 Property, Offences Against 481 Securities, Offences Against 482 Writings, Evidence 434,455 Privileged Communications 45O Probability, Evidence 45O Probate of Wills 369 Proceedings of Arbitrators 64 Process, Obstructing 5O7 Profanity, no Copyright 4OO Profits in Partnership 555 Distribution 559 Promises, Mutual, as a Considera* tion 2O5 Promissory Notes 143-178 Drawn by Partners 556 Foreign 147 Forms of. 149, ISO Loss of 542 Proof of Assignment 96 Burden of 435 of Issue 449,450 Property in Animals 91 in Divorce 546 Lost 542 Offences Against 481,482 of Partners 557 In Pledges 138 Proposals for Contracts 22O Propositions Prior to Contract 437 Proprietors 414 Prosecutions, Criminal, Limita- tion of 505 Prospective Law 536 Protest 163-165 Forms 164 Provocation 5O8 Proxies 88 Public Documents, Evidence . . 434, 45O Justice, Offences Against 481 Offences 481-51O Offences Against 482 Peace, Offences Against 482 Policy, Offences Against 482 Property, Offences Against 481 Records, Evidence 434 Securities, Offences Against 482 Publication 48 Publicity 48 Publisher's Contracts 4O1 Pulsation, Evidence of 532 Punctuation in Contracts S2O of Statute Law 538 Punishment 5O8 Quadripartite Conveyances 271 Qualifications of an Attorney 81 In Contracts 201 IJTDEX TO LAW. 6S 9 Page us In Evidence 45O Leading, in Evidence 445 Quickening, Evidence of 532 l ii i << Enjoyment, Covenant 267 Quit-Claim Deeds 271 Quotation, in Copyright 411 Rape 5O8 Ratification 48 of Agent's Authority 58 Heading of Contracts 22O Iteal Estate 611-622 Brokers 84 Heal Property 611-622 Conveyances of 263-296 Trespass on 639 Reason HO Reasonable Acts 48 Keceiptor 138 Receipts 623-625 Books of, Copyright 411 in Conveyances 272 Forms 139,625 Receivers, Foreign 48O Recission of Contracts 22O Recitals in Conveyances 272 Recognition of Agent's Authority. 58 Judicial 434, 444 Recommendatory Words 37O Record of Copyright 411 Recording Con veyances 272 Records, Copies, etc 451 Records, Public, Evidence 434 Reddendum in Conveyances 272 Redeli very Bond 179 Redemption of Pledge 138 of Real Property 614 Re-Entry, Conveyances Providing for. 272 Re-Examination of Witnesses 455 Refreshing Memory 451 Refuge, House of. 5O3 Refusal 48 Registers, Evidence 451 Re-Issues of Patents 589 Rel eases 625, 626 of Contracts 22O in Conveyances 272 Forms 626 of Legacy 367 of Principal Debtor in Bills, Bonds, and Notes 175 Reliction, Real Property 619 Religion, Offences Against 482 Hem, Proceedings in 479 Remainder, Estate in 615 Remainders, Real Property 619 Vested Real Property 621 Remedies Under the Copyright Law 4I1-I1IJ for Breach of Warranty in Sales 633 Removable Fixtures 473 Rent, Ground 617 Repairs, Real Property 619 Repeated Legacies 366 Replevin Bond 179 Report, Law 536 Pag. Representations for Insurance 463 Reprief. 508 Reprimand 5O9 Repnblication of Wills 36fl Reputation, Evidence 451 Request* in Contracts 22 Requisites of a Valid Copyright 413-416 of a Valid Lien 54O Requisition 561 Reservation in Conveyances 272 Residence 426 Residents 414 Residue in Wills 369 Responsibility of Carriers 125-127 Restraint of Trade, Contracts for. . 220 Restrictions in Contracts 2O1 Retainer, Retaining Fee 82 Retrospective Law 5*0, 537 Reversion 436 Estate in 615 Real Property 62O Revocation of Agent's Authority.. 58 of Arbitrator's Powers 64 Rejected Applications for Patents. 586 Right of Stoppage of Goods in Transitu 63O Rights of Partners 559 of Principals Concerning Ag'ts 87 Rings, Inscriptions on, Evidence. . 444 Riots 5O9 Risk, etc., Interest 47O Risks in Insurance 467 Robbery 5O9 Highway 5O2 Routs 5O9 Rules of Construction in Contracts 2O8 of Practice in Patent Cases. . 578-597 Rumor, Evidence 451 Said, in Contracts 220 Sales 626-633 Animals 92 Bills of, Forms 633 Copyright 416 Edition of Copyright 416 Horses 91 Judicial 27O Measure of Damages 424 Notes, etc 47O Pledge 138 Satisfaction of Legacies 367 of Mortgages 335 Scores, Piano, Copyright 4 1 o Seamen's Lien 541 Sea Shore, Real Property 62> Sea Weed, Real Property 62O Seals 51,110 of Corporations 419 Secondary Evidence 434, 451 Secrets of State, in Evidence 453 Securities in Assignment 96 Offences Against 482 Seeds, Real Property 62O Seizin, Covenantor 267 Real Property 62O Self-Defence 5O9 Senility S7O Separate Estates 43O Servants 49 690 O I, AW. Servant*, Authority 118 Service* aw a Consideration 2O6 Set-Off in Contracts 821 Settlement or Residence 485 Settlements in Contracts 821 Severally Estates 43O, 615 Severance of Estates 433 Shares of Partners 557 baring Profits in Partnerships. . . 555 hip Brokers , 85 Lien 542 Shipmaster 86 Shipowner's Lieu 541 Shipper's Lien 542 Forms 114-121 Shipping Articles 221 Ship's Husband 88 Lien 542 Short-,. Real Property 62O Signature to an Affidavit 5O by Agent 63 of Contracts 221 Silence in Contracts 221 Simple Contracts 193, 221 Single Entry Accounts 7-14 Singular Number 369 Skill ' 49 Slander 637-639 of Title 639 Smuggling 5O9 Sodomy 509 Solicitors SO Confidential Communications.. 438 Solid Measure 643,644 Somnambulism, Evidence of 533 Specialties 193,221 Specification for Patents 583 Spelling in Contracts 221 Spinal Poisons 53O Springs, Real Property 62O Stakeholders 221 Starvation, Evidence of Death by. . 521 State Copyright 4O8 Secrets in Evidence 453 Sovereignty, Offences Against . . 481 Statute Law 537,538 of Frauds 458 Statutes Affecting Contracts 221 of Carriers 128 See Copyright 398-416 Statutory Liens 542 Sterility, Evidence of. 533 Stock Brokers 84 Stool, Cucking 496 Stoppage in Transitn 127, 63O Stranger's Rights to Consideration 2O5 Strangulation, Evidence of Death. . 521 Stuff, Household in Wills 35 Stultification 49 Sub- Agents 63 Sub-Contracts 221 Subject-Matter in Contracts 194 Submission to Arbitration 65 Subornation of Perjury 5O9 Subscriptions 2O5 Sue, Covenant Not to 267 Sufferance, Estates at 43O, 615 Suicide 533 nits, Abatement of Contracts 221 Suits by Limited Partnerships 562 in Partnership Name 561 Vexatious 641 Sunday 634 Contracts 221 Supercargoes 88 Superfvetation, Evidence of. 534 Sureties, Foreign 48O Surface Measure 644 Surplusage in an Affidavit 51 Surrender in Conveyances 273 Surveys, Real Property 62O Tax Deeds 27S Telegrams, Evidence 452 Forms 14O-142 Telegraph Companies 139-142 Tenant and Landlord 471-476 Tenants 474 Tender in Contracts 222 Tenendum in Conveyances 273 Tenure, Real Property 62' Term of Contracts 229; of Copyright 41Y, of Estates 43JK Termination of Apprenticeship 9 of Partnership 551-55U Territory of Nations 514 Terror in Wills 365 Testament, Mystic 36ii Testate 36* Testator 36' Testattim in Conveyances 274 Testimony or Evidence 434-45O of Witnesses, How Taken 451! for Patent Cases.. 595 Tests, in Evidence 45fl Things, Measure of. 644 Third Parties, in Agency, etc. 61, 62 Threats, Confessions Obtained by . . 452 in Wills 3 70 Through Tickets 129 Time... 49,634,635 of Consideration 205 Cooling 4 95 Measure 644 of Performance of Contracts 219 of Presentment, etc., of Bills, etc. 166 Title, Abstracts of. 263-265 to an Affidavit 5O of Copyright 416 Deeds 273 to Estates 433 Slander of 639 Tombstone, Inscriptions, Evidence 444 Torts, Law of Place of 536 -or Wrongs 635-642 Total Loss, Insurance 467 Trade, Contracts in Restraint of. ... 22O Fixtures 474 Usages of 121, 642 Trade-Marks 574-576,592 How to Obtain Patent for . . . 574-576 Transcripts, Evidence 434, 451 Transfers 4 -of Bills, Bonds, and Notes . . . 155-158 -Conflict of Law of../. 479 -of Copyright 417 -of Pledge 138 nroirx TO LAW. Page Transitn, Stoppage in 127, 63O Translation of Legacies 368, 37O Translations, Evidence 452 Translator's Copyright 4OO Travellers 133 Treason 51O Trees. Real Property 62O Trespass 505, 639-641 Malicious 505 Tripartite Conveyances 273 Triple Damages 422 Troy Weight 644 Trust . etc., as a Consideration 2O6 Ultra Tires 42O Unconscionable Contracts 223 Undne Influence. See Persuasion. 37O Unintelligible Wills 37O Unity of Estates 43O Unknown Authors 4OO Unlawful Assembly 49O, 51O Contracts 223 Unpublished Works 417 Unsonndness in Horses 91 Unwritten Laws 479 Usage 642 in Contracts 2O7 Evidence of 439 of Trade 121,207 Use of Pledge 138 Usurious Interest 47O Vacation 49 Vagrancy 51O Vagrants 51O Valuable Considerations 2O6 Value in Bills, Bonds, and Notes. . . . 151 Validity of Divorce 546 Vegetable Poisons 53O Venue 51 Vest, Real Property 621 Vexatious Suits 641 Vice in Horses 91 View, Real Property 621 Violation of Grave 502 Violence, Evidence of Death by. 519, 52O Viva Voce, Evidence 452 Void Contracts 223 Voidable 49 Voidable Contracts 223 Voluntary Confessions, Evidence. . 437 Considerations 2O6 Conveyances 265 Waste, Real Property 621 Voire Dire, Evidence 452 Wait, Lying in 5O5 Waiver in Contracts 223 of Lien 538 Walkers, Night 5O7 Want of Consideration, etc 152 Warehousemen 88, 141 Warfare 514 Warnings in Wills 365 Warrantof Arrest 488 of Attorney, Forms 83 Warranty in Assignment 96 Breach of. 633 Covenantor 267 Page Warranty of Horses 91 in Insurance 407 in Sales 631 Waste, Real Property 621 Water Drip, on Land 614 Courses, Real Property 622 Real Property 622 Week 635 Weights 644 of Evidence 452 Weights and Measures 642-644 Wharfingers 88, 142 Wharfs, Real Property 623 When Bills and Notes Presented . . 166 Payments to be Made 6O7 in Wills 37O Where Bills and Notes Presented. . 167 Payments to be Made 6O7 Who Are Partners 554 to Make Payments 6O8 to Present Bills and Notes 167 to Receive Payments 6OH Whom Bills and Notes Presented to 167 Wife 49 Legatee 368 Obligations, Rights, etc. 543 and Husband, Evidence by. 438, 453 Will, Estates 43O, 615 Wills and Tes taments 363-37 9 of Copyright Matter 417 in Evidence 455 Forms 371-396 Law of Domicil Governs 511 Loss of 542 Withdrawn Patent Applications . . . 586 Witnesses 452-455 Attestation by 273 Character, in Evidence 436 Competency of. 454 Credibility of 439 Cross-Examination of. 454 Criminating Self. 439 Direct Examination of 455 Discrediting 441 Examination of 454, 455 Evidence of. 454 Impeachment of 443 Re- Examination of. 455 Words in Assignments 96 -^-in Contracts 223 in Wills 370 Work as a Consideration 2O6 and Custody 133 Wounds, Evidence of 534 Written Instruments, Date 634 Laws 479 Writing 5O Hand- Writing, Evidence. . . . 442, 455 Writings Affecting Real Estate, Acknowledgment of. 14-4& in Evidence 455 in Pencil 368 Private, Evidence 484 Wrongs or Torts 35-642 Tard 273 Year 635 Years, Estate for 4S, 615 Young Animals 92 INDEX TO FORMS See IJTOEX TO LAW, ante. Page Abstract* of Title 264, 265 Accounts 4-14 Administrators 4-5 Advertising 14 Affidavit to 51 Assignees 5 Assignment of 97 Authentication of Copy of 1O9 Balance, Trial 14 Bills Payable 14 Receivable 14 Brokers 84 Cash 7,14 Day Book 7, 12, 13 Discount and Interest 14 Double Entry 11-14 Executors 6 Exemplification of Copy of. 1O9 Expense 14 Fixtures 14 Guardians 5,6 Interest and Discount 14 Journal 12, 13 Ledger 7,11,14 Loss Profit and 14 Merchandise 14 Payable Bills 14 Profit and Loss 14 Receipts for 625 Receivable Bills 14 Single Entry 7 Statements of Account 6 Stock 14 Store and Lot 14 Trial Balance 14 Verification of 51 Acknowledgment, Assignment of. . 97 of Certificate of Limited Part- nership 562 of Deeds, etc. See ACKNOWLEDGMENT, ETC., below. Instruments Affecting Real Estate, Writings, etc., etc 14-45 Alabama 16, 17 Arkansas 17 California 17,18 Canada 18 Colorado 18, 19 Connecticut 19 Dakota 19 Delaware 19 District of Columbia 19, 2O Florida 2O, 21 Georgia 21 Idaho 21,22 Illinois 22, 23 Indiana 23 Iowa 23,24 Kansas 24, 25 Kentucky 25, 26 Louisiana 26 Maine 26,27 Maryland 27 Massachusetts 27 Michigan 27, 28 Minnesota 28 Mississippi 28, 29 Missouri 29 Montana 39 692 Page Acknowledgment of Instruments, etc. (Continued.) Nebraska 29, SO Nevada 30 New Hampshire 30, 31 New Jersey 31 New Mexico 31 33 New York 32-37 North Carotin 37 Ohio 37,38 Oregon 33 Pennsylvania 38-41 Rhode Island 41 South Carolina 41 Tennessee 41.42 Texas 42 Utah 42,43 Vermont 43 Virginia , 43 Washington Territory. - 43, 44 West Virginia '44 Wisconsin 44, 45 Wyoming 45 of Leases. See ACKNOWLEDGMENT, above. Of Mortgages. See title ACKNOWLEDG- MENT, above. Acquittances 629 Action, Title to 51 Additional Cbarge on Mortgaged Premises 352 Administrator's Accounts 4-5 Acknowledgment 16 Covenants in Deeds 3O1 Deeds, of General Forms 303, 3O4 Forms used in Kansas 274 Kentucky 281 New York 287 Ohio 291 Pennsylvania 294 Signatures and Seal to Deeds 3O2 Title, Recital of in Deeds, etc 299 Agents. Acknowledgments by 16 Contracts by 224 Agents and Manufacturers, Con- tracts of 249,250 Agreements. See CONTRACTS, below. In General 223-263,402 Apprenticeship 94-95 Arbitration 67, 68 to Continue Arbitration ... 69 Copyright 4O2, 4O3 Affidavits 51-53 of Accounts 51, 52 of Acknowledgments 52 of Arbitrators 69 of Assets SB to Award 71,72 Chattel Mortgage, Renewals by 36O Commencement 51 Conclusions' - SI Foreign 52 General Forms '51 to Indenture of Apprenticeship 226 Jurats to 51 of Notice OS IJVDEX TO FORMA. 6 93 Pag. Affidavit*. (Continued.) to Nuncupative Will 896 Partners 58 to Petition OS of Publication . OS Renewals by, of Chattel Mortgages 36O Signature of OR of Sureties O3 Witnesses' Affidavit to Nuncupative, Verbal, or Unwritten Will 896 Affirmation of Arbitrators 69 of Witness 69 Arbitration 67-72 Alabama. Acknowledgments 16, 17 Deeds 274 Mortgages 83O Wills 371 Animals, Contracts for Sale of. 257 Annual Statements for Continuing Chattel Mortgages in Force 36O Annuities. See Wills 38O, 381, 391 Annuity, Bond for Payment of 183 Appeals, Trade-Marks, Patents, and Designs 6O1-6O3 Appendix to Trade-Marks, Patents, and Designs 6O5 Appointment of Arbitrators 69 Attorney at Law 82 in Fact * 73-8O Apprentice. Assignment of 98 Parent's Bond for 183 Apprenticeship 94, 95, 225, 226 Affidavit to Indentures 226 Contracts 94,95, 225 Arbitration Forms 67-72 Accounts 68 Administrators 67 Affidavits 67 Agreements to Submit to 67, 68 All Controversies, etc 67 All Mattersof Difference 67 in Variance 67 Appointments 69 Awards 69-72 Bonds 68 Suits 67 Boundaries 68 Horse Trade 68 Particular Matters Only 68 Partnership Matters 68 Submission to 67, 68 Suits, etc 68 Provisions for, in Wills 381,382 At. kansas. Acknowledgments 17 Deeds 274 Mortgages 335 Wills 371 Articles of Agreement 223-263, 402 Artists' Contracts Concerning Their Copyright 4O2 Assets, Affidavit of. O2 Assignee's Accounts 5 Acknowledgment 16 Assignments 97-1 08 Account 97 Acknowledgment 97 Apprentice 98 Billsof Sale 98 Bonds 98,99 Bonds and Mortgages 1O5, 1O6 Chattels 1O7 Claims 9O Clause Security 1O7 Company or Corporation 99, 10O Compound 1O7 Contracts 99 Consent to 99 Copyright. 398, 399 Corporation 99, 1OO Debtt 10O Paae Assignments. (Continued., Debtors Insolvent 1O1-1O8 Deeds 1OO Dower 1OO Formulae 1O? General Forms 97 Ground Rents 1OO Indenture 98 Indorsed on a Writing 97-1O1 Insolvent Debtors 1O1-1O3 Insurance Policy 1O3 Interest of Partnership 1O6 Judgments 1O3 Leases 1O3, 1O4 Legacies 1O4, 1O5 Letters of Attorney 1O5 Moneys 1O5 Mortgages 1O5 Mortgages and Bonds 1O5, 1O6 Notes, etc 1O6 Orders 1 OH Partnership Interests 1O6 Property 1O6, 1O7 Patent Rights 6O3 Personal Property 1O7 Policy of Insurance 1O3 Powers of Attorney 1O5 Powers of Attorney Attached 97 Prizes Taken at Sea 1O7 Property of Partnership 1O6, 1O7 Recipe 1O7 Recourse Without 1O8 Rights Patent 6O3 Sale Bills 98 Schedules Attached 97 Seamen's Wages 1O8 Security Clause 1O7, 1O8 Servants 1O8 Shares of Stock 1OS Simple Forms 99 Stock, Shares of 168 Wages in General 1O8 Seamen, etc 1O8 Without Recourse 1O8 Assignments of Copyright 399 Assignment of Lease, Cfrutract for. 248 of Mortgages 348, 349 by a Corporation 349 Covenants for 343 Short Form 348 With Power of Attorney 348, 349 Assignments of Trade* Marks, Pat- ents, and Designs 60S Assurance Covenant in Mortgages. 343 Attached Property,, Receipt for. . . . 139 Attestation of Written Wills by W i tnesses 884, 385 EnglishForm 384 Massachusetts Form 384 New York Form 385 Pennsylvania Form 385 Attorney in Fart. (Letters or Pow- ers) 72-80 Acknowledgment 16 Contracts by 224 Deeds by 3O4 Lease by 322 Letters or Powers of Attorney 72-8O Signature and Seal to Deeds by 3O2 Title by, Recital of, in Deeds, etc 299 Attorneys at Law 82, 83 Appointment of, General Forms 82 by Defendant 82 by Plaintiff, to Commence Suit 8S to Conduct Suit Already Commenced and Pending 82 Contract with Clerk 244 Employment Contracts 82 Authentication Certificate, Bonds. 145 by Trustee, of Bonds 145 Authentications 1O9 Copy of Account 1O9 on File 1O9 of Inventory 1O9 of Record 109 6 9 4 I* I>EX TO FORMS. Ps* Authentications. (Continued.) of Will 1O9 Official Character 1O9 Transcript of Judgment 1O9 Auctioneer!!, Contract* by and With 225 4 wards. General Forma 69, 7O by Umpire* 7O Service of 71 Verification of 71 Kail Bond 183 Bank Notes 144 Barrels, Contracts for Manufactur- ing 25O Barter and Trade Contracts 225 Bequests and Legacies of Personal Property 391-393 Annuity, Payment of 391 Purchase of 391 to Wife During Widowhood 391 Charitable Bequests 391, 392 Children, Bequests to, etc 392 Corporations, Bequests to 392 Death of Legatee 392 Debts, etc 392 Dress and Ornaments 392 Furniture, etc 392 Books and Provisions, etc 392 Good-will of Business 392 Infant's Legacy 392 Jewelry, Plate, and Household Effects, etc 392 Payment of Legacies, etc 392 Pecuniary Legacies, etc 392 Residue of Estate 393 Share Under Another Will 393 Stock, for Support of Family 393 Trust, for Unincorporated Society 393 Bfills of Credit 184 of Exchange 147 After Date 147 Sight 147 as per Letter of Advice 147 atSight 147 General Form 147 Set of Foreign Bills 147 of Lading 114-121 Petroleum 242 Penal 184 of Sale 633 Assignment of 98 Bond, to Execute 188, 189 General Form 633 of a Horse, With Warranty 633 of Sale, or Chattel Mortgages 357-359 Single 184 Blind Person's Signature to Deeds, etc. 3O3 Bonds. Assignment of. 98,99 Forthcoming 179 Secured by Mortgage. 349 for Deeds. See BONDS AND OBLIGATIONS, ETC., below. and Mortgages. Assignment of 1O5, 1O6 Contract For Sale of 257 \<-oUablo 144,146 Authentication, Certificate 145 Authentication by Trustee 145 of Corporations 144-146 County Bonds 145 Coupons 145, 146 Interest Coupons 145,146 Warrants 145,146 Municipal Bonds 145, 146 Private Corporation Bonds 145 Registration 145 State Bonds 146 Township Bonds 146 Warrants, Interest 145,146 Pag Bonds or Obligations 181-192 Annuity, Payment of 188 Apprentice, Father's Bond 183 Bail Bond 183 Bill of Credit 184 Penal 184 ofSale.to Execute 188, ISfl Single 184 Bottomry Bond 184 by Part Owner 184, 185 Clauses, Various 188-192 Conditions, to be Inserted When Ap- plicable 188-192 for Conveyance of Land 185-189 on Coming of Age 189 by Corporation Bond 185 Covenants 188-192 for Deeds for Land 185,186 to Deliver Lost Deeds, etc 189 to Execute Bills of Sale 188-189 for Execution of Conveyance 186 by Executors 186 Father's Bond for Apprentice, etc 183 General Forms 181-183 to Indemnify Acceptor or Maker of Lost Bill or Note 19O Partners for Accommodation 191 Surety in a Bond 191 Title in Dispute 191 by Indorsement on Agreement or Con- tract 187 for Instalments, Annual 181 for Insurance 182 for Interest, Periodical 181 for Judgment, Power of Attorney to Confess 183 to Keep Person During Life 191 Land, Conveyance of 185 for Deeds for 185-186 Legatees 186 Marriage, on Payment, etc 191 Money, Payment of 181 Mortgage, to Pay and Cancel 191 Obligees, Obligors, Joint, Several, One or More, etc 187, 188 One Obligee and Several Obligors. . 187 Parties. See OBLIGEES, OBLIGORS, ETC., above. for Payment After Death of Third Per- son 182 for Payment of Annuity 183 for Payment in Instalments 181 for Payment of Money with Penalty 181 for Payment of Money without Penalty 181 for Performance of Agreement or Con- tract 187 for Periodical Interest 181 for Redelivery of Goods Levied on 186 of Representatives 186, 187 Respondentia 187, 188 to Return Goods, etc 19O for Services 188 by Several Persons Severally 188 Sheriff, Redelivery of Goods to 186 Short Forms 181 by Two Obligors 187 for an Unliquidated (or Unascertained) amount of Bond 188 that Warranty Shall be Kept 188 with Power of Attorney to Confess Judgment 182 with Warrant of Attorney to Confess Judgment 188 without Condition 181 Book-Keeper, Contract With 245 Keeping 7-14 Bonks. Contracts to Compile, etc. 242-244, 402, 4O3 to Correct, Enlarge, and Revise, etc. . 4O2 Edit.etc - 402,403 Boots, etc., Contract to Manufac- ture 2 Bottomry Bond 184 by Part Owner 1*4,185 INDEX TO FORM*. 695 Page Boundaries, Natural, Highways, etc., How Described in Deeds, etc. 3OO Brick, Contract to Manufacture 250,251 It r o K v rs . ^ ^ Contracts with Manufacturers 249, 25O Orders to Buy Stock 84 toSell Stock 84 Receipt for Money for Stock 84 Statement of Account, etc 84 Building'. See BUILDING DWELLING HOUSES, ETC., ETC., below. Building and Construction, Con- tracts for 230-238 Engines and Machinery, etc 23( Locomotive 23O Railroad 232-234 Subdivision 234, 235 Ticket Office 235-237 Sewers 237 Ships 231 Steamships 232 Streets 230,231 Turnpike Roads 238 Vessels 231,232 Yachts . 231,232 Dwelling Houses, Mills, Resi- dences, etc 226-23O Long Forms 226-228 Short Forms 228-23O Building Lease 322, 323 Cablegrams 140,141 California. Acknowledgments 7, 18 Deeds 275 Mortgages 335 Wills 371 Canada. Acknowledgments 18 Deeds 275 Wills 371,372 Cancellation of Agreement, Ap- prenticeship 95 Carrier's Notices. See Bills of Lad- ing 114-121,140-142 Causes of Action, Release of All, etc. 626 Certificate. of Acknowledgment 15 of Partnership Agreement 592 Commencement of 15 Conclusion of 15 Seal of Officer 15 Signature of Officer 15 Statement of Venue 14 of Copies of Charter Parties 239 of Deposit 149 Storage of Petroleum 242 of Lease. Landlords 323, 324 Tenants 323, 324 Certificates of Librarian of Con- gress 399, 415 Character, Official Authentication or Exemplification of. 1O9 Charitable Bequests. See Wills 391, 392 Charter Parties 238-242 Cuba, Porto Rico, etc 238, 239 Direct Port (Approved form) 239, 24O General Forms 238, 239 Mediterranean, Out and Home 24O Orders, Charter for (Approved form) 24O, 241 Petroleum Charter (Approved form) 241, 242 Timber, to Gulf Ports 242 Checks 149 Chattel Mortgages. See MORTGAGES OP PERSONAL PROPERTY, above 856-363 Chattels. Assignment of 1O7 Receipt for 625 Children, Bequests to 392 hp Claims. Assignment of 99 Release of all 62 Clerk. Contract with 245 Contract of, with Attorney 244, 245 Clause, Security in Assignment 1O7 Clauses, Various. in Assignments 97 Bonds 188-192 Contracts 224-263 Conveyances 224-3*> Deeds 3O1, 3O2 Leases 326-32S Mortgages 343-345 Wills 391-395 Codicils to Written Wills 395, 396 Appointment of Executors, Trustees, etc 395 Indorsement of, on Will 395 Ratifications of Prior Codicils to Will 395, 396 Revocations of Prior Codicils to Will 395, 396 Colorado. Acknowledgments 18 Deeds 275 Mortgages 335 Wills 372 Commencing Clauses. in Acknowledgments 15 Affidavits 51 Assignments 97 Contracts 224 Deeds, etc 298, 299 Leases 314 Mortgages 343 Wills, etc 38O Commission Merchants, Contracts with Manufacturers 249. 25O Commissioner's Deeds 3O4 in Partition 287 Committee's Deeds 3O5 Common, Tenancy in, Deed for 21O Communications to Librarian of Congress 399,414, 415 Company, Assignment by 99, 1OO Compilation, etc., of Books, etc., Contracts for 242-244, 4O2, 4O3 Compound, Assignment of. 1O7 Concluding Clauses. of Acknowledgments ... 15 Affidavits 51 Assignments 97 Contracts 224 Deeds 3O2 Leases 317 Mortgages 845 Wills, etc S84 Conditional Habendnm in Deeds, etc. *00 Conditions or Provisos. in Bonds 188. 195) Deeds, etc 3O1 Leases 815 Death of Lessor 315 Notice, to Determine Lease 315 Re-entry on Non-payment of Rent 315 if Occupation or Trade is Offensive. 315 for Various Causes, etc 315 Mortgages Declarations, Directions, Pow- ers, Provisions, etc., in Wills, etc 380,384 Advancements to be Deducted 38O not to be a Satisfaction of Debts, etc 38O Annuity, Power to Grant 38O, 3S1 Preventing Parting with 381 Appointment of Guardian and Substi- tutes 381 Appointment of Executors and Substi- tute* 581 6 9 6 INDEX TO FORMS. Page Conditions, Declarations, Direc- tions, etc., In Wills. oiiliiiucd.) Arbitration 381 Arrangements and Compromises 881 Assignment to New Trustee, etc 381 Children Born After Testator's Death.. 381 Custody and Tuition of 381 Repayment of Loans by 383 Debts Due from Relations, Release of. . 382 Disputes, Arbitration of 383 Dwelling-house, Wife to Reside in 382 Investment of Personal Estate, etc 383 Marriage of Daughter, etc 383, 383 Marriage of Nieces, etc 383 Name of Testator to be Taken with Es- tate 383 Repayment of Loans by Children 383 Revocation of Bequests and Legacies, etc 383 Sale, Power of, etc 383 Winding Up Testator's Estate 383, 384 Confirmation. Deeds for 3O5, 3O6 by Indorsement 286, 3O6 of Power of Attorney 79 Connecticut. Acknowledgments 19 Deeds 275 Mortgages 335, 336 Wills 372 Consent. to Assignment 99 of Guardians to Apprenticeship 95 Magistrates to Apprenticeship 95 Officers to Apprenticeship 95 Parents to Apprenticeship 95 Trustees to Apprenticeship 95 Construction and Interpretation of Previous Contracts, Contract for. 238 Continuing Chattel Mortgages In Force by Affidavits and Annual Statements 36O Contracts 224-263, 4O2 Agents 224 Agents and Manufacturers 249, 25O Apartments, etc 248, 249 Animals, Sale of 257 Apprenticeship 94, 95, 225 Arbitration 67, 68, 225 Artists, Copyright Contracts 4O2 Assign Lease, Contract to 248 Assignment of 99 Attorney and Clerk, Employment 244 in Fact 224 at Law, Employment of 82 Auctioneers 225 Barrels, Manufacturing 250 Barter or Trade 225 Bills of Lading, Petroleum 242 Bond and Mortgage, Sale of 257 Bookkeeper, Employment of. 245 Books 242-244, 4O2, 4O3 Compilation, etc 4O2 Correcting, Enlarging, Revising, etc.... 4O2 Editing, etc 4O2, 4O3 See COPYRIGHT MATTER, below. Boots, Manufacturing 25O Bricks, Manufacturing 25O, 251 Brokers and Manufacturers 249,250 Building Houses, etc. , etc 226-23O Long Forms 226-228 Short Forms 228-23O Building and Construction 23O-23H Engines and Machinery, etc 23O Locomotive 23O Railroad 232-234 Subdivision JJ34, 235 Ticket Office 235-237 Sewers 237,238 Ships 231 Steamships 232 Streets 230,231 Turnpike Road* 238 Vessels 231,232 Yachts 231,232 Charter Party 238-242 Page Contracts. (Continued.) Cuba, Porto Rico, etc 239 Direct Port (Approved form) 239, 24O General Forms 238, 239 Mediterranean, Out and Home 24O Orders, Charter for (Approved form) 240,241 Petroleum Charter (Approved form) 241, 242 Timber to Gulf Ports 242 Certificates of Copies of Charter Parties 239 of Stowage of Petroleum 242 Clerk to Attorney, Employment. . . 244. 245 Clerk or Workman 245 Commencing Clauses in Contracts 224 Concluding Clauses in Contracts 224 Commission Merchants and Manufac- turers 249. 25O Compilations of Books, etc 4O2 Correcting, Enlarging, Revising, etc., of Books 4O2 Construction and Interpretation of Pre- vious Contract 238 Copyright Matter 242, 244, 4O2. 4O3 Artist's Rights Reserved 4O2 Compilation, etc., of" Books 4O2 Correcting, Enlarging, and Revising 4O2 Editing, etc., of Works 4O2, 4O3 General Forms 242-244 Limiting Edition Published 4O2 Memorandums, etc 4O2, 4O3 Publications on Joint Account 244 Cuba, Porto Rico, etc., Charter Party.. . 239 Cultivate Land on Shares, Employment to 245 Cuts, Employment to Engrave 245 Damages, Fixed in Contract 224, 225 Direct Port Charter Party 239, 24O Dwelling, Building of 226-230 Leasing of 248 and Furniture, Leasing of. 248 and Store, Leasing of 248 Employment 244-246 Attorney 82 Attorney with Clerk 244 Bookkeeper 245 Clerk to Attorney 244, 245 Clerk or Workman 245 Cultivating Land on Shares 245 Cuts, Engraving of. 245 Engraving Cuts, Steel Plate, etc 245 Freighting Ship or Vessel 245, 246 Furnace Manager 246 Journeyman 245 Land. Cultivation on Shares 245 Merchant and Bookkeeper 245 Ship Owner with Surgeon 246 Ships, Freighting 245,246 Surgeon 246 Vessels, Freighting of 246 Workman 245 Engines, Building and Construction of. . 230 Engraving Cuts, Steel Plates, etc., Em- ployment for 245 Expenses of Law Suit Equally 247, 248 Farm and Mill Property, Sale of . . 258, 259 Formal Requisites of Contracts. . . 223, 224 Freighting Ships, etc., Employment for 245, 246 Fruit Trees, Sale of 261 Furnace Manager, Employment of 24t General Forms of Contract 224, 22J Goods in Store, Sale of 257 Grocery, Sale of. 257 Guaranty of Performance of Contract. . 231 Horse Racing 246, 247 In General 246, 247 Rules and Subscriptions **' Sale of 258 Houses, Building S 2 . 6 / 2 .^ Long Forms 222~22 Short Forms ^^SK Indenture of Apprenticeship ... 94, 95, 225 Insurance **' to Effect or Procure 247 Renewal of '. 247 Interpretation and Construction of Pre- vious Contract 238 Introductory Clauses to Contracts 224 INDEX TO FORM*. 697 Page Contracts. (Continued.) Journeyman, Employment of 245 Law Suits 247, 248 to Bear Expenses Equally, etc 247, 248 Lands, Cultivating in Shares, Employ- ment for 245 Sale of. 258-26O Lease, Contract to Assign 248 Leasing 248 Assign Lease 248 Dwelling. 248 and Furniture 248 and Store 248 Legal Requisites-of Contract Forms 223, 224 Limiting Edition of Publication 4O2 Liquidated Damages in Contracts 224. 225, 228 Locomotive, Building and Construction 23O Lodgings 248, 249 Machinery, Building and Construction. 23O Manager, Furnace, Employment of 246 Manufacturers and Agents, etc 249, 25O Brokers, etc 249,250 Commission Merchant, etc. ... 249, 25O Manufacturing 25O, 251 Barrels 25O Boots 25O Bricks 250,251 Patented Articles 251 Shoes 251 Mediterranean, Out and Home Charter Party 24O Memorandums, Copyright. 4O2, 4O3 Merchant and Book-Keeper 245 Mill Property and Farm, Sale of.. . 258, 259 Mortgage and Bond , Sale of. 257 Mortgage Security, Charge of 261 Obstructions to Light 251 Orders, Charter Party for 24O, 241 Partnership 251, 255 Accounting 252 Active and Silent Partners 253, 254 Arbitration 252 Assignment of Partner's Interest. ...... 252 Business Management 252 Capital Stock 252 Interest 252 Cashier or Receiver 252 Continuance of Partnership 252 Credit 252 Decease 252 Dissolution 252 Duties, Division of. 253 Expulsion of Members 553 Firm Name, etc 253 General Forms 251. 252 New Partners 253 Profits and Losses 253 Release of Debts 353 Retiring Partners 253, 255 Settlements 253 Silent Partners 253, 254 Party Walls 255,256 Patented Articles, Manufacturing 251 Performance 256 Petroleum, Charter Party ... 241-242 Plans, Building Contract, Annexed 228 Publications on Joint Account 244 Purchase 256 Cord Wood 256 Several, Jointly 256 Racing Contracts 246, 247 Railroad, Building and Construction of 232-234 Subdivision, Building, etc., of... 234, 235 Toilet Office, Building, etc., of.. 235-237 Real Estate, Sales of 258-26O Reassignment 256, 257 Rebuilding 228, 229 Remainder, Sale of 259 Renewal of Insurance 247 Requisites of Contract Forms 223, 224 Residences, Building 226-23O Reversion, Sale of 259 Sale 257-261 Animals 257 Appraised Value, at 257 Bond and Mortgage 257 Page Contracts. (Continued.) Farm and Mill Property 258, 259 Fruit Trees 261 General Forms 257 Goods in Grocery Store 257 in Store 257 Horse 258 Real Estate 258-26O Remainder or Reversion 259 Shares of Stock 26O Stone 261 Timber Growing 26O, 261 Trees. Fruit 261 Vessel, Enrolled or Registered 261 Wheat 261 Wood or Stone 261 Security, Change of. 261 Sewers, Building and Construction of 237, 238 Shares of Stock, Sale of 26O Ship Owner, Employment of Surgeon . . 246 Shipping Seamen 261,262 Ships, Building and Construction 231 Shoes, Manufacturing 251 Steamships, Building and Construction. 232 Stone, Saleof 261 Store and Goods, Sale of 257 Streets, Building and Construction 23O, 231 Subscriptions 262 Suit, Contract to Bear Expenses Equally 247, 248 Surgeon, Employment of by Ship Owner 246 Taking Down and Rebuilding 229, 23O Testatum Clauses in Contracts 224 Ticket Office, Building and Construction 235-237 Timber, Charter Party 243 Growing, Sale of 26O, 261 Towing Boats 262, 203 Trade or Barter 225 Trees, Fruit, Sale of 261 Turnpike Roads, Building and Con- struction 238 Vessels, Building and Construction 231, 232 Freighting 246 . Saleof. 261 Witness Clauses in Contracts 224 Wheat, Saleof 261 Wood, Sale of. 261 Work in General 263 Workmen, Employment of 245 Yachts, Building and Construction 232 Controversies, Release of all, etc. . . 626 Conveyances of Land, Bond for 185-189 Copies, Authenticated or Exempli- fied... 109 of Account 1O9 of Inventory 109 of Record 1O9 of Will 109 Copyright 399 Agreements 4O2, 4O3 Assignments 399 Certificate of Librarian of Congress 399, 415 Contracts 4O2, 4O3 Librarian of Congress. Certificate of Copyright, etc 899, 415 Communications to 399, 414, 415 Memorandums or Agreement, Concern- ing 402,403 Notice of Copyright 416 Pleadings 411-413 Postmasters, Receipts by 414-415 Receipts. of Librarian of Congress 415 of Postmasters 414, 415 Copyright Matter 242-244, 4O2, 4O3 Artist's Rights Reserved 403 Assignments of 399 Certificate of 415 Compilation, etc., of Books 4O2 Contracts 242-244, 4O2, 403 Correcting, Enlarging, Revising, etc 4O2 Correspondence 414, 415 Editing, etc. , of Works 4O2, 403 Gensral Forms 42-241 J*I>E\ TO FORMS. Page (Continued.) Memorandum, General 4O2, 4O3 Pleadings 411-415 Publications on Joint Account 244 Corporations. Acknowledgment 16 Assignment 99, 1OO Assignments of Mortgages 349-351 Bequests to 392 Bonds 144-146,185 Deeds 287,306 Correct Mistakes, Deeds to . 3O7, 3O8 Correcting, Enlarging, and Revis- ing Books, Contracts for, <>tc. 4O2 County Bonds 145 Coupons, of Bonds 145, 146 Covenants. in Bonds 188-192 in Deeds 3O1 Administrators 3O1 Against Grantor's Acts 3O1 Executors SOI Further Assurance 3O1, 3O2 Incumbrances, Against 3O1 Husband for Self and Wife 3O2 Joint and Several 3O2 Mutual, to Convey 3O2 One Person to Another 3O1 Power to Convey 8O2 Quiet Enjoyment 3O2 Seizin 3O2 Several 3O2 'Warranty Against Incumbrances 3O1 in Leases 315-317,326-328 Assignment of Lease Allowed 315, 328 Drains, Fences, Sewers, Walls, etc., Re- pairing 328 Dwelling in Premises 316 Entry on N on-Pay mt-nt of Rent 326 to View Premises 326, 327 Finishing House 328 Fixtures 316 Improvements 316 Insurance by Lessee, etc 316, 328 Noxious or Offensive Occupation 316 Obstructing Light with Blinds, etc 316 Painting 328 Paying Rents, etc 316, 327 Possession, to Deliver, etc 327 Quiet Enjoyment 326,327 Quit on Notice 327 at End of Term Without Notice. . . . 316 Rebuilding, Repairs, etc 328 Renewal of Lease 316 Repairs, etc 327,328 Sell on Request 316 Straw, etc 327 Taxes, Payment of. 316,327,328,332 and Repairs 316, 317 Timber.etc 328 Trees, etc 328 Under Lease, Prohibited 317 Use of Premises Limited 317 Water Rate or Tax, etc 317 in Mortgages 3 43-3 15 Assignment 343 Assurance 343 Enjoyment of Premises 343 Entry on Default 343 Fire Clause 343 Incumbrances, Free From 343 Lease, Mortgage of 343 Payment of Money 344 of Taxes 344 Power to Assign 344 Reassignment 344 Receipt, etc 344 Right to Convey 344 Sale on Default, etc 344, 345 on Delivery, etc 844 on Notice 344 Cuba, etc., Charter Parties 239 Cultivation of Land, Contract for. . 245 Custom Souse Power of Attorney SO Cuts and Engravings, Contracts for 245 Dakota. Acknowledgment! 19 Deeds 275 Wills 372 Damages, Amount Fixed in Con- tracts 224,225 Day Book Entries. 7,12, 13 Deaf and Dumb Person's Signa- ture, etc., to Deeds, etc 3O3 Debtors, Insolvent, Assignment by 101-lOft Debts. Assignment of 1OO Receipts for 625 Declarations in Wills, etc. See CON- DITIONS, ETC., ETC., above 38O-384 Delaware. Acknowledgments 19 Deeds 275 Mortgages 336 Wills 372 Deeds 273-312 Alabama 274 Arkansas... 274 California 275 Canada 275 Colorado 275 Connecticut 275 Dakota 275 Delaware 275 District of Columbia 275 Florida 275 Georgia 275 Idaho 276 Illinois 276 Indiana 276, 277 Iowa 277, 278 Kansas 278-281 Kentucky 281 Louisiana 881, 282 Maine 282 Maryland 282 Massachusetts 282 Michigan 282 Minnesota 282 Mississippi 282 Missouri 282, 283 Montana 283 Nebraska 283 Nevada 283 New Hampshire 283 New Jersey 283 New Mexico 283 New York 283-289 North Carolina 289 Ohio 290,292 Oregon 292 Pennsylvania 293-297 Rhode Island 297 South Carolina 297 Tennessee 297 Texas 297 Utah 297 Vermont 297, 298 Virginia 298 Washington Territory 298 West Virginia 298 'Wisconsin 298 Wyoming 298 General Forms 298-313 Acknowledgment of Deeds, etc. See ACKNOWLEDGMENT, ETC., above. Administrator's Deeds. General Forms 803. 304 Forms used in Kansas 279 Kentucky 281 New York 287 Ohio 291 Pennsylvania 894 Assignment of Deeds 1OO Attorneys in Fact, Deeds by" 3O4 Bonds for Deeds. See BONOS AND OBLIGA- TIONS, above. Commencements of Deeds, etc 298, 299 Commissioner's Deed .-- 3O4, 6 9 g Page Deeds. (Continned.) in Partition 287 Committee's Deed 305 Common, Tenancy in, Deed Creating.. . 31O Conditions in Deeds, etc 3O1 Confirmation, Deeds for 3O5, 3O6 Indorsement of 3O6 New York 286 Corporation Deeds 287, 3O6 Correct Mistakes, Deed to 3O7, 308 Covenants in Deeds, etc 3O1 Administrators 3O1 Against Acts of Grantor 3O1 Executors 3O Further Assurance SOI, 3O2 Incumbrances, Against 3O1 Husband, for Self and Wife 3O2 Joint and Several 3O2 Mutual, to Convey 3O2 One Person to Another 3O1 Power to Convey 3O2 Quiet Enjoyment 3O2 Seizin 3O2 Several 3O2 Warranty Against Incumbrances 3O1 Descriptions in Deeds, etc 3OO Easement for Drainage Reserved 3OO Party Walls Reserved 3OO Metes and Bounds 3OO Natural Boundaries, H ighways, etc 3OO Drunkard, Deed, by Committee for 3O5 Exchange Deeds 286,306 Executor's Deeds. General Forms 306,307 Forms used in Kansas 279 Kentucky 281 Ohio 291 Pennsylvania 294, 295 Foreclosure, Master's Deed, N. Y 289 General Deed Forms 3O3-312 Gift, Deed of 307 Ground-Rent Deed, Pennsylvania 295 Guardian's Deed. Forms used in Kansas 279 Ohio > 291 Pennsylvania 294, 295 Habendum in Deeds, etc 3OO To Have and to Hold in Fee Simple 3OO for Life 3OO with Conditions, etc 3OO Habitual Drunkard, Committee's Deed for , 3O5 Idiot, Deed by Committee for 305 Indorsement of Confirmation on a Prior Voidable Deed 3O6 Introductions to Deeds, etc 298, 299 Life Estate Deed, Virginia 298 Lunatic, Deed of Committee for 3O5 Masters in Chancery Deed 3O7 Deed in Foreclosure, N. Y 289 Partition 288, 289 Mistakes, Deed to Correct 3O7, 3O8 Mortgage, Deed of Land, Subject to 285 Premises, Deed of 285 Names of Parties in Deeds, etc 298, 299 Parties' Names in Deeds, etc 298, 299 Partition Deed 308 by Commissioner 3O4 by Master 288,289 Pew Deed 308 Premises in Deeds, etc 299, 30O Quit-Claim Deeds. Forms used in Indiana 277 Kansas 278 Kentucky 281 Missouri 283 New York 285,286 Ohio 29O Pennsylvania 294 Virginia 298 Recitals in Deeds, etc 299 Administrator's Title 299 Attorney's in Fact Title 299 Executor's Title... 299 Deed, Title by 299 Deed, Descent, Patent Title by 299 Partition. Title by 29t Deeds. (Continned.) Referee's Deed ..................... 308, 3O9 Recitals of Title, etc ............. . ....... 299 Reddendum in Deeds, etc .......... 3OO, 301 Reserving Annuity ............... 3OO, 3O1 Reserving for Streets, etc ............... 3O1 Release Deed ............................ 3O9 Rent, Ground Rent Deed, Pennsylvania 295 Reservation in Deeds, etc. See REDDEN- DUM, ETC., above ................... 3OO, 3O1 Reversion, Deeds of ................ 3O9, 31O Right of Way Deed .................... 286 Sheriff's Deeds. Forms used in Kansas ....... ..... 279, 28O - New York ......... ............... 289 - Ohio. ....................... 291,292 - Pennsylvania ................. 295-297 Short Deed Forms ....................... 303 Signatures and Seals in Deeds, etc ...... 3O2 Agent or Attorney in Fact ............. 3O2 Administrator ......................... 3O2 Administratrix ......................... 3O2 Corporations ........................... 3O6 Executor, Executrix ................... 3O2 Guardian .............................. 3O2 Sheriff. ................................ 3O2 Trustee .............................. 3O2 Tax Deeds. Forms used in Kansas ............ 280, 281 - Ohio ............................ 292 Tenancy in Common, Deed for .......... 31O Testatum Clauses of Deeds ........ 298, 299 Trust Deeds. General forms ............. . ...... 31O, 311 Forms used in Kansas ................. 279 - Kentucky ......................... 281 - Ohio ............................. 291 - Virginia ........................... 298 Trustee's Deeds. Forms used in Kentucky ............... 281 - Pennsylvania ................ 294, 295 Voidable, Deed Confirming, etc.... 3O5, 3O6 Warranty Deeds. General Forms .................... 311, 312 - Warranty by Attorney ............. 312 -- Full Covenants .......... 311, 312 General Forms used in Alabama ........ 274 California ......................... 275 - Illinois ............................ 276 - Indiana ...................... 276,277 - Kansas ............................ 278 - Kentucky ......................... 281 i - Massachusetts ..................... 282 - Missouri .......................... 283 New Jersey ........................ 283 - New York ................... 284, 285 - Ohio .............................. 29O - Pennsylvania ...................... 293 - South Carolina .................... 297 - Virginia .......................... 298 Special Forms ...................... 312 Forms used in Indiana ................. 277 - Kansas ........................... 278 - Kentucky ......................... 281 New Jersey . . ..................... 283 - Pennsylvania ................. 293, 294 Witness Clauses in Deeds, etc ..... 3O2, 303 Blind Person ........................... 303 Deaf and Dumb Person ................ 303 Erasures or Interlineations .............. 3O2 Illiterate Persons ....................... SOS Interlineations or Erasures ............. 3O2 Power of Attorney ..................... SOS Self and for Another ................... SOS Water Course Deed ............... 286,287 - Assignment of Deed .......... ..... 1OO Descent, Patent, etc., Recital of Title by, in Deeds, etc .................... 29fc Recital of Title by, in Deeds, etc ....... 299 - for Land, Bond to Execute. . . 185, 186 sea Demands. Receipt in Full of all Release of all IHDEX TO FORMS. Page l>rnm rrnso ami Lay-Day Scale 122 Deposit, Certificate of 149 Depositions in Trade-Marks, Pat- ents, and Designs, etc 6O4, 6O5 Descent, Recital of Title by in Deeds, etc 299 Descriptions in Deeds, etc 3OO Easement for Drainage Reserved SDO for Party Walls Reserved 30O Metes and Bounds 3OO Natural Boundaries, Highways, etc 3OO Designs, Pateiit'Forms 598, 600, 6O5 Pevises of Real Property 393-395 Dower, in Lieu of 393 Friend, Devise to 394 Grandchildren, Devise to 394 Houses and Lands 394 Lapse of Devise 394 Life, Devise for 394 School or College, etc 394 In Trust, with Power to Sell, etc... 393, 394 To Trustees During a Life or Lives 394 Direct Port Charter Party 239, 24O Discharges or Releases of Mort- gages 351,354 in Part, of Mortgage 354 Disputes, Arbitration of, Provided for in Wills 382 District of Columbia. Acknowledgments 19, 2O Deeds 275 Mortgages 338 Wills 372 Domestic Bills of Lading 114-118 Double Entry Rook-Keeping 7-14 Dower. Assignment of 1OO Homestead Exemption Released 349 Not Released 35O Drainage, Easement for in Deeds, How Described 3O3 Drunkard, Habitnal, Deed by Com- mittee for 3O5 Dwellings, Contracts for Ruilding 226-23O . for Lease of 248 and Furniture, Contract for Lease of. 248 and Store, Contract for Lease of. 248 Easements Drainage, Party Walls, etc., How Reserved in Deeds 3OO Employment, Contracts for 244-246 Attorneys 82 Attorney with Clerk 244 Bookkeeper 245 Clerk to Attorney 244, 245 Clerk or Workman 245 Cultivate Land on Shares 245 Cuts, Engraving of 245 Engravings, Cuts, Steel Plates, etc 245 Freighting Ships, Vessels, etc 245,246 Furnace Manager 246 Journeyman 245 Land, Cultivating on Shares 24i5 Merchant and Bookkeeper 245 Ship Owner with Surgeon 24fl Ships Freighting 245, 240 Surgeons with Ship Owners 24 Vessels, Freighting of 24fl Workmen 245 Engines, Contract for Building and Construction of. 23O Engravings, Cuts, Steel Plates, Contracts for 845 Enjoyment of Premises, Covenant for 343 Erasures and Interlineations in Deeds, etc 3O2 Exchange Deeds 286,306 Execution of Conveyances, Bonds for 186 Executors. Accounts 56 Acknowledgment 16 Appointment of by Will 381 Bonds > 186 Covenants in Deeds 3O1 Deeds. General Forms 8O6, 3O7 Forms used in Kansas 279 Kentucky 281 Ohio 29L Pennsylvania 294, 295 Signature and Seal, etc., to Deeds 3O2 Title, Recital of in Deeds, etc. . . . 299 Executrix, Signature and Seal to Deeds 3O2 Mortgage to 351,352 Exemplifications 1O9 of Copy of Account 1O9 on File 1O9 of Inventory 1O9 of Record 1O9 of Will lOd Official Charactsr 1O9 Transcript of Judgment 1O9 Expenses of Law Suit, Contract to Bear Equally 247,248 Extensions of Trade-Marks, Pat- ents, and Designs 6O3, 6O4 Farm, Lease 324 and Mill Property, Contract for Sale of 258, 251 Father's Bond for Apprentice 183 Fee Simple Habendnm in Deeds, ..-. 3OO etc. 343 Fire Clause in Mortgages Florida. Acknowledgments 2O, 21 Deeds 275 Mortgages 336 Wills 372-373 Foreclosure Deed, Masters, X. Y. . . . 289 in Mortgages 343 Foreign 52 Bills of Exchange 147 of Lading 117-121 Formal Requisites, etc. Acknowledgments 14-45 Assignments 96 Bonds ISO, 181 Contracts 223, 224 Deeds 273-298 Leases 313.314 Mortgages 335-343 Powers of Attorney 72 Wills 371-38O Formula, Assignment of. 1O7 Forthcoming Rond 179 Freighting Ships and Vessels, Con- tracts for 245, 246 Fruit Trees, Contract for Sale of. ... 261 Full of All Demands, Receipt for in 635 Furniture, Bequests of 392 Furnace Manager, Contract With. . 246 Fnrnitnre and Goods, Lease. . . . 324, 325 Further Assurance, Covenants of in Deeds 301, 3O Further Charge on Mortgaged Premises 352 General Forms, etc. of Assignment 97 Bonds 181-189 Deeds SOS -312 Leases 317-322 Mortgages of Personal Property. . . 35-3S INDEX TO 1 OHMS. Page tteneral Forms, etc. (Continued.) Mortgages of Real Property 345-347 Warranty Deeds. See WARRANTY DKKDS, below. Wills, etc 385-389 Georgia. Acknowledgments 21 Deeds 275 Mortgages 336 Wills 373 Gift, Deed of. 3O7 Goods in Grocery, Contract for Sale of. 257 - in Store, Contract for Sale of. ... 257 Mortgage of. See MORTGAGES OF PER- SONAL PROPERTY, above 356-363 and Furniture, Lease 324, 325 Good-will of Business, Bequests Of. 392 Grocery. Contract for Sale of. 257 Ground Lease 325,326 Rents. Assignment of 1OO Deed, Pennsylvania 295 Guaranty of Fidelity. Apprenticeship 95 of Notes 15O of Performance of Contract 231 Guardians. Accounts 5-6 Acknowledgment 16 Appointment of, in Wills 381 Deeds. Used in Kansas 279 Ohio 291 Pennsylvania 294, 295 Signatures and Seals to Deeds. . . 3O2 Habendnm in Leases 314 for Life or Lives 314 for Lives or Years 314 . in Deeds, etc 30O To Have and to Hold in Fee Simple 3OO for Life 3OO with Conditions 3OO in Mortgages 342, 343 Habitual Drunkard, Committee's Deed for 305 Highways, How Described in Deeds, etc 3OO Homestead Exemption and Dower, Release of in Mortgages 349 Horse, Contract for Sale of. 258 Racing. Contracts 246,247 In General 246,247 Rules and Subscriptions 247 House, Lease 326 and Land, Lease 327,328 Unfurnished, Lease 328 Houses. Contracts for Building 226-23O Long Forms 226-228 Short Forms 228-23O Husband for Self and Wife, Cove* nants of, in Deeds 3O2 Idaho. Acknowledgments SI, 22 Deeds 276 Mortgages 336 Wills 373 Idiot, Committees' Deed for 305 Illinois. Acknowledgments 22.23 Deeds " 276 Mortgages 6, 337 Will. 373 literate Persons' Signature, etc., t Deds ^..^^...TT.....^^.. SOS Pag* Incnmbrances. Covenants against 8O1 in Mortgages 343 Indemnity Bonds 190, 191 to Mortgagee 355 Indenture. Assignment 98 of Apprenticeship 94, 95, 225, 229 Deeds, etc 27O of Lease 314 Indiana. Acknowledgments SS Deeds 276,277 Mortgages 337 Wills 373 Indorsed Assignment 97-1O1 Indorsement of Bonds on Agree- ments, Contracts, etc 187 Indorsement of Confirmation and Prior Voidable Deed 3O6 Infant's Acknowledgment 16 Insolvent Debtor's Assignment 1O1-1O8 Instalments. Bonds for Payments by 181, 182 Payment in, on Chattel Mortgages 362 Insurance Contracts, to Eifect 247 to Renew 247 Policy, Assignment of. 1O3 Interest. Coupons 145, 146 Receipt for 625 Warrants 145, 146 of Mortgagor, Continuance of, on Goods Mortgaged 36O of Partnership, Assignment of. . 1O3 Interlineations and Erasures in Deeds, etc 302 Interpretation or Construction of Previous Contracts, Contract for 238 Introductory Clauses. Contracts 224 Deeds, etc 298, 299 Leases 314 Mortgages 342 Wills, etc 38O Inventory, Authentication or Ex- emplification of. 1O Invoices to Bills of Lading 114-121 Iowa. Acknowledgments 23, 24 Deeds 277,278 Mortgages 337 Wills 373 Jewelry, Bequests of, etc 399 Joint Notes 15O and Several Notes ISO Covenants in Deeds 3O2 Journal Entries 12, 13 Journeyman, Contract to Employ. 245 Judgment. Assignment of 1O3 Bond and Warrant to Confess 182 Notes ISO Transcript of, Authenticated or Exem- plified 1O9 on Warrant of Attorney 83 Jurat to Affidavits SI Kansas. Acknowledgments 24, 29 Deeds 7. : 278-281 Mortgages 337 Wills-. 373.374 Keep for Life, Bond to Keep Person 191 Kentucky. Acknowledgments 35, 26 Deeds 281 Mortgages 8 Wills *?* 702 INDEX TO FOBMft. Lading, Bills of. 114-121 Land, Bonds for Conveyance of. 185 for Deeds to 185,186 Contracts for Male of 258-26O to Cultivate on Shares 245 and House, Lease 327,328 Oil, Mineral, or Salt Lease 331 Landlord's Certificate of Leasing 323, 324 Last Will. See WILLS AND TESTAMENTS; NUNCUPATIVE WILLS; CODICILS, above.. 371-396 Law Suits, Contracts to Bear Ex- penses Equally 247,248 Lay-Day and Demurrage Scale 122 Lease. Assignments of 1O3, 1O4 Contract to Assign 248 Mortgage of. 353 Leased Premises, Mortgage of 353 Leases of Property 313-334 Attorney-in-Fact, Lease by 322 Building Lease 322, 323 Certificate, Lease, Landlord's Agree- ment 323, 324 Certificate, Lease, Tenant's Agree- ment 323, 324 Commencing Clauses in Leases 314 Conditions or Provisos in Leases 315 Death of Lessor 315 Notice to Determine Lease 315 Re-entry on Non- Payment of Rent 315 Occupation or Trade being Offensive 315 Various Causes, etc 315 Covenants in Leases 315-317 Assignment of Lease Allowed 315, 328 Drains, Fences, Sewers, Wells, Repair- ing of, etc 328 Dwelling in Premises 316 Entry on Non-Payment of Rent 326 to View Premises 326, 327 Finishing House 328 Fire Clause 316 Fixtures 316 Improvements 316 Insurance by Lessee, etc 316, 328 Noxious or Offensive Occupation 316 Obstructing Lights with Blinds, Boards, etc 316 Painting. 328 Paying Rents, etc 316, 327 Possession, to Deliver, etc 327 Suiet Enjoyment 326, 327 uit on Notice 327 at End of the Term, Without Notice 316 Rebuilding, Repairs, etc 328 Renewal of Lease 316 Repairs, etc 327,328 Sell on Request 316 Straw, etc 327 Taxes, Payment of. 316, 327, 328 and Repairs 316,317 Timber, etc 328 Trees, etc 328 Under-Lease Prohibited 317 Use of Premises Limited 317 Watsr-Rate or Tax 317 Farm, Lease of 324 Formal Requisites of Lease 313 Furniture and House Lease. 248 General Form Leases 317-322 Goods and Furniture Lease 324, 325 Ground Lease 325, 326 Habendum in Leases 314 for Life or Lives 314 for Lives or Years 814 House Lease 320,327 and Land Lease 327, 328 Unfurnished 328 Indenture of Lease 328,329 Introductions to Leases 314 Land and House Lease 327, 328 Landlord's Certificate of Leasing. 323, 324 Life Lease 329,330 Manufactory, Lease 33O, 331 Pag. Leases of Property. (Continued.) Mill Lease ............................... 331 Mining Lease ............................ 331 Oil, Mineral, or Salt Land Lease ........ 331 Pew Lease .......................... 331,332 Provisos. See CONDITIONS, etc., above. Reddendum or Reservation in Leases ............................ 314, 315 Balcony, Observatory, etc ............. 314 Drive, Roadway, etc ................... 314 Private Passage, etc .............. 314, 315 Timber, etc ........................... 315 Water-Course, etc ...................... 315 Renewal Lease ... ....................... 333 Requisites in Leases .................... ;* i $ Reservation in Leases. See REDDENDUM IN LEASES, above ................... 314, 315 Short Form Leases ...................... 317 Surety to Lease .......................... 332 Surrender of Lease by Indorsement ---- 332 - of a Term of Years of Lease ......... 332 Tenant's Certificate of Leasing ---- 323, 324 Under-Lease ....................... 332,333 Unfurnished House Lease ............. 328 Water-Rate or Tax in Lease ....... 319, 32O Wharf and Machinery Lease ........... 333 Years, Lease for .................... 333, 334 Leasing, Contracts for ................ 2418 - Dwelling, Contracts for ........... 248 -- and Furniture, Contracts for 248 -- Store, Contracts for ........... 248 Ledger Entries .......................... 7-14 Legacies. Assignments of ..................... 1O4, 105 See BEQUESTS & LEGACIES, etc., above 384, 385 Legacy, Beceipt for .................... 620 Legal Beqnisites of Acknowledgment Forms .............. 14-4? Assignment Forms ...................... 9t Bond Forms ........................ ISO, 181 Contract Forms .................... 223, 224 Deed Forms ........................ 273-298 Lease Forms ........................ 313,314 Mortgage Forms ................... 335-34% Power of Attorney Forms ............... 7% Will Forms ......................... 371-3SO Letters of Attorney .................. 72-S-O Assignment of ........................... 1O5 Librarian of Congress. Certificate of Copyright by, etc ---- 399, 4115 Life. Habendum in Deeds, etc. , for ........... 3OO Lease ............................... 329, 33O Mortgage for Support of Person During 35'1 Limited Partnership. Affidavit of Stock, etc. , etc .............. 562 Certificate of Partnership, etc ........... 562 Notice of Dissolution, etc ............... 562 Limiting Edition of a Publication, ' Contract for ............................ 4OS Liquidated Damages In Contracts 224, 225, 228 Loans to Children, etc., Provisions for Repayment, etc., in Wills ...... 383 Locomotive, Contract for Building and Construction ................... 23O Lodging or Apartments, Contracts Concerning ........................ 248, 249 Louisiana. Acknowledgments ...................... 26 Deeds ..... . ........................ 281,282 Lunatic, Deed of Committee for 3O5 Machinery, Contracts for Building UM