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.
<?-2 Whart. 33. d-8 Wheat. 326; 3 Campb. 305, 377; 2
Perr. & D. 573 ; 15 Mass. 380 : 20 Johns. 168 : 7 Wend.
160 ; 15 Conn. 206 ; 7 Serg. & R. 116 ; 16 Id. 89 ; 2 Harr.
8t J. 77; 2 Rand. 87; i Younge & C. Exch. 53. e-2
Martin (N. S.) 508: 4 Id. 383; 2 Mass. 217; i Dall. 239;
z Bay. 173, 362; 5 Vt. 313; i Phill. Ev. 266: Cow. &
H, nofe. f-See i Johns. 34. f-3 Jones Eq. 109 ; 3 Grant
matter in dispute. 1 When made by a clerk, it
must be proven by him. But in either case,
when the person who made the entry is out of
the reach of the process of the court, as in the
case of death, or absence out of the State ot
county, the handwriting may be proved by a
person acquainted with the handwriting of the
person who made the entry J
The books and original entries, when proved
by the supplementary oath of the party, is
prima facie evidence of the sale and delivery
of goods, and work and labor done. 1 Bui
they are not evidence of money lent or cash
paid,* nor of the time a vessel lay at the plain-
tiff's wharf, b nor of the delivery of goods to be
sold on commission.
These entries are evidence in suits between
third parties, d and also in favor of the party
himself. 6
AN ACCOUNT STATED is in the nature of a
new promise/ and is conclusive as to the lia-
bility of the parties, with reference to the trans-
actions included in it,* except in cases of fraud
or manifest error. h
Acceptance may be inferred from circum-
stances ; as where an account is rendered to a
merchant and no objection is made, after suffi-
cient time. 1 In general, when a party indebted
upon an account receives and retains it beyond
such time as is reasonable under the circum-
stances and according to the usage of the busi-
ness, for examining and returning it, without
communicating any objections, he is considered
to acquiesce in its correctness, and he becomes
bound by it as an account stated. Signature
to the account, or express admission is not
necessary .J This rule is held applicable to ac-
counts between merchants residing in different
countries.* Such an account is deemed con-
clusive between the parties,' to the extent
agreed upon, unless some fraud, mistake, or
plain error is shown," and in such case, gener-
ally, the account will not be opened, but liberty
to surcharge or falsify will be given. But in
cases of gross fraud, or gross mistake, or undue
advantage, or imposition made palpable to the
court, the court will direct the whole account
to be opened and taken anew.P Acceptance
by the party to be charged must be shown by
the one who relies upon the account.' The
591 ; 4 Wis. 219 ; 5
N. Y.) 311 ; 16 Mo.
Cas. 195. ll-i Esp. 159 ; 24 Conn.
Fla.478; 6Coldw. 56; see 4 Sandf. ( .
226; 37111. 512; 6 Conn. 447; ii Wheat, 237; Addis.
260, 334. i-2 Vern. Ch. 276; i Sim. & S. Ch. 333; 3
Johns. Ch. 569; 7 Cranch, 147; M'Cord Ch. 156; a
Md. Ch. 433. j-7 Cranch. 147; 6 Ala. 518; 13 Cal.
427; 10 Iowa, 238; 18 La. An. 124; 2 Md. Ch. 433 ; 8
N. J. Eq. 795 ; 26 Miss. 212 ; 3 Johns. Ch. 569, 587 ; i
Edw. Ch. 417; 2 Id. i ; ii N. Y. 170; 2 Barb. 586; 10
Id. 213; 12 Id. 288; 45 Id. 490: i M'Cord, 156; 15 Vt.
105. li-7 Cranch. 147 25 Miss. 267 ; 3 Johns. Ch. 569.
1-2 Brown Ch. 62, 310; 2 Ves. Ch. 566, 837- i Swanst.
Ch. 460; 6 Madd.Ch. 146; 20 Ala. (N. S.) 747; 3 Johns.
Ch. 587; i Gill. 350; sJonesCh. 109; see2 Edw. Ch. i
10 Barb. 213; 4 Sandf. 311; 3 W. & S. 109; 31 N. Y. 498 ;
10 Humph. 238; i8N. .285; 12 La. An. 20; i8Id.356;
50 Me. 102; 2 Bosw. 188; 13 Ohio St. 168. m-i Hopk.
239 ; 4 Mich. 336. n-i Parsons Contr. 174 ; i Johns. Ch.
550; i M'Cord, 156. 0-2 Atk. Ch. 119; 9 Ves. Ch. 2*5-
i Schoales & L. Eq. 192 ; 76111.119; i Md. Ch. 306 p.
6 Coldw. 56. -f-io Humph. (Tenn ) 938; 13 III. uj.
ACCOUNTS.
acknowledgment that the sum is due is suffi-
cient," though there be but a single item in the
account. 11 Acceptance may also be inferred
from retaining the account a sufficient time
without making objection, 1 and from other cir-
cumstances.J The acceptance of the account
is an acknowledgment of a debt due for the
balance,* and it is not necessary to prove the
items, but only to prove an existing debt or de-
mand, and the stating of the account. 1
Any admission of a balance or acknowledg-
ment made by one party to another, that a sum
of money is due to the latter, is sufficient
prima facie evidence to entitle him to recover
that sum on an account stated ; m so where the
defendant stated that he would call and settle the
amount of the debt sent in, n or where he sent
money on account, stating he would pay the
remainder next week. But a mere qualified
acknowledgment is not.P
An acceptance of a bill is evidence of an ac-
count stated by the acceptor with the holder ;i
at all events it is so in an action at the suit of
the drawer, 1 " or at the suit of a payee, who is
also drawer. 8 A promissory note is evidence as
an account stated, in an action by the payee
against the maker.' An I. O. U. is evidence
of an account stated." Where accounts are
submitted to an arbiter, not by bond, his award
may be given in evidence under an account
stated. T Stating an account will, in general,
amount to an admission of the title of the party
to receive the money."
The account must be stated by a competent
person, excluding infants and those who are
of unsound mind.* Husband and wife may
join and state an account with a third person.*
An agent may bind his principal. 1 Proof of an
account stated with the plaintiff's agent is suffi-
cient, proving the party to be such agent ; so a
plaintiff may recover on an account stated by
the defendant with the plaintiff's wife, or an
account stated by the defendant's wife,' if she
proved to be the party's agent. Partners may
state accounts, and an action lies for the party
entitled to the balance. 1 *
The subject-matter* of the account must be
proved to have been money and a debt. A
definite ascertained sum must be stated to be
due. d It is sufficient to prove an account
stated, without giving evidence of the severaF
items constituting the account," it is not neces-
sary that there should be cross demands between
fhe parties, or that the defendant's admission
hhould relate to more than one item or trans-
action/ Accounting in a particular character
admits that character.* An account stated
g-2 Mod. 44; 2 Term. 480. 11-13 East. 249; 5
Maule & S 65: i Show. 215. 1-7 Cranch, 147; 3
Watts. & S. 109 ; 10 Barb. 213: i Sandf. 311; see 22
Penn. St. 454. J-i Gill. 234. k-n Eng. L. & Eq. 421.
l-i6 Ala. (S. S.) 742. m-2 Mod. 44; i T. R. 42 ; i
Esp. 159; 6 Id. 24. n-3 Stark. 10. O-io East. 104
p-i R. & M. 239; 4 B. &C. 235. 6 D. & R. 306, S.C.
q-i H Bl. 239; 3 East. 169; 3 B. & P. 559 : i East. 98.
r-s M. & S. 65. S-5 B. & A. 245 ; 5 B. C. 360. t-2 Str.
710; Chitt. Bill, 366. u-s M. & S 65. v-i Esp. 194 ;
t Chitt. PI. 308. w-4 Moore, 73. x-i T. R. 40. y-2
f . R. 483 ; i$ Eng. L. & Eq. 290. - 3 Johns. Qi- 569.
does not alter the nature of the original
debt."
An account stated is not, in general, conclu-
sive evidence against the party admitting the
balance to be against him. 1 He would be al-
lowed to show a gross error or mistake in the
account, or any fraud or misrepresentation by
the other party, if he could adduce clear evi-
dence of that fact. But where an account is
settled, and the party gives a bill for the
amount, which bill is not paid, he cannot, on
an action brought, impeach the charges in the
first account which he has setlled.J And where
parties having cross demands, settle and balance
their accounts, though part of the plaintiff's
demand could not be recovered in the action,
the settlement of accounts will bind the defend-
ant, so that he cannot set up that defence to an
action for the balance. k
The material allegations in an action upon
an account stated are : ( I ) That plaintiff and
defendant came to an accounting together, (2)
in such accounting defendant was found in-
debted to plaintiff, (3) which defendant prom-
ised to pay, (4) and has not paid.
ACCOUNT FORMS.
Accounts Administrator's.
See title AFFIDAVITS, post.
See ACCOUNT EXECUTOR'S, below.
The account of A. D. and A. R., administrator*
of all and singular the goods and chattels, rights
and credits which were of D. D., late of , in
the county of , merchant, deceased.
O
The said
C
<;
The said
p
accountants
~
O
r;
accountan t s
a
charge them-
f
credit them-
selves with
<>
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
<aid A. B.
Acknowledgment Corporation.
The acknowledgment in such cases is, in the absence
of provisions to the contrary, the same as usual, adding
the name and description of the officers authorized to
acknowledge for the corporation, thus, " The A. B.
Railway Co., by P. P., its President" (and S. Y.,
its Secretary), etc., continuing as usual and ending with
(a recital of authority and) " as such president (and
secretary), etc., for and as the act of said com-
pany " (or corporation).
The seal of the corporation is also a requisite to the
acknowledgment.
Acknowledgment Executor.
See Acknowledgment Administrator, above.
The acknowledgment is as usual, except grantor's
xame and title should be thus, E. X., " Executor of
the last will and testament of D. D., deceased,"
continuing the form as usual, and ending " as such ex-
ecutor."
Acknowledgment Guardian.
See Acknowledgment Administrator, above.
The acknowledgment is as usual, except grantor's
name should be thus, G. N., " Guardian of the per-
son (and estate) of M. I., N. O., and R. R., minor
heirs of D. D., deceased," continuing the form as
usual, and ending " as such guardian."
Acknowledgment Infant or Minor.
The acknowledgment is in the usual form to grantor's
name, "I. I.," inserting the proper words of connec-
tion, "that said instrument was formerly ex-
ecuted by him when an infant under the age of
twenty-one years; that he since arrived at full
age ; that he is desirous of confirming his former
execution thereof," ending as usual.
Acknowledgment Receiver.
The acknowledgment is in the usual form, grantor's
name as follows, R. R., " Receiver in the matter of
A. B. vs. C. D., pending in the Court," con-
tinuing as usual, and ending with a recital of authority
and " as such receiver."
by
Ui
Acknowledgment Sheriff.
The acknowledgment is in the usual form, grantor's
name as follows, S. F.," Sheriff of County,"
continuing as usual, reciting the substance of judgment,
execution, order of sale, and confirmation, and ending
"as such sheriff."
Acknowledgment Translation.
The acknowledgment is in the usual form, the instru-
ment being acknowledged as " the conveyance (or
instrument) of which the foregoing is a correct
translation " (or purports to be a correct translation).
ALABAMA.
Acknowledgments and proofs of conveyances may be
taken in this State by judges of the supreme and cir-
cuit courts and their clerks, chancellors, and registers
in chancery, judges of the courts of probate, justices of
the peace, and notaries public. If taken in other
States of the United States, they may be taken by
judges and clerks of any federal court, judges of any
court of record in any State, notaries public, or com-
missioners appointed by the governor of Alabama.
Beyond the limits of the United States, such ac-
knowledgments and proofs may be taken by the judge
of any court of record, mayor, or chief magistrate of
any city, town, borough, or county, notaries public, or
by any diplomatic, consular, or commercial agent of the
nited States. b
No other proof or authentication of such acknowledg-
ment is necessary than the certificate of such officer.
Powers of attorney to convey property may be proven
or acknowledged in the same manner, and must be re-
ceived as evidence to the same extent as conveyances.
If the grantor is unknown, his identity may be estab-
lished by witnesses sufficient to satisfy the officer before
whom the acknowledgment is made.
The execution of deeds, etc., by corporation depends
altogether on the act of incorporation.
Deeds may be proved as well as acknowledged.
Acknowledgment Husband and Wife.*
The State of , county,
I (name and titlt of officer) hereby certify that
A. B. and W. B. his wife, whose names are
signed to the foregr ing conveyance and who are
known to me, acknowledged before me on this
day, that being informed of the contents of the
conveyance, they executed the same voluntarily,
on the day the same bears date.
Given under my hand this day of ,
A. D. . (Signature and title of officer.)
Proof by Subscribing Witness.'
The State of , county,
I (name and title of officer) hereby certify that
W. S., a subscribing witness to the foregoing
conveyance, known to me, appeared before me
this day, and being sworn, stated that A. B., the
grantor, voluntarily executed the same in his
presence, and in the presence of the other
subscribing witness, on the day the same
bears date ; that he attested the same in the
presence of the grantor and of the other wit-
ness, and that such other witness subscribed
his name as a witness in his presence.
Given under my hand this day of
A. D. . (Signature and title of officer.)
Acknowledgment Separate Examina-
tion of Wife.
The examination of the wife separate and apart from
her husband is necessary to convey the title to any
homestead exempted by the laws of this State. This
examination may be had before any officer authorized
by law to take acknowledgments of deeds, who must in.
dorse thereon a certificate in writing in the following
form :
State of Alabama. County of .
I (name and title of officer) do hereby certify
that on the day of , 18 , came before ma
the within named W. B., known to me (or madt
known to me) to be the wife of the within named
A. B. who being examined separate and apart
b-Code of 1886, g 1799-1900. c-Code of 1886, \ 1802
d-Code of 1886. I 1803. e-Code of 1886, \ 2508.
ACKNOWLEDGMENT.
from the husband, touching her signature to the
within acknowledged that she signed
the same of her own free will and accord and
without fear, constraints or threats of the hus-
band.
In testimony whereof I have set my hand this
day of .
(Signature and title of officer.)
ARKANSAS.
Conveyances, when acknowledged or proved in
this State. Proof or acknowledgment may be taken be-
fore the supreme or circuit court, or either judge or clerk
thereof, or before the county court or presiding judge
thereof, or any justice of the peace or notary public.
Anywhere else in the United States, before any
court of the United States, or any State or Territory
having a seal, or the clerk thereof, mayor or chief offi-
cer of any city or town having a seal of office. Out of
ihe United States, before any court of any state,
kingdom or empire having a seal, or any mayor or
chief officer of any city or town having an official seal,
or before any officer of any foreign country who, by its
laws, is authorized to take probate of the conveyance
of real estate of his own country, if he have an official
seal. The officer must certify that the grantor is known
to him personally, when such is the case, otherwise he
must take proof of his identity by affidavit or affidavits
to accompany the certificate of acknowledgment. Proof
is made by one or more subscribing witnesses swearing
that they saw the grantor subscribe the deed, or heard
him acknowledge that he had subscribed and executed
the deed for the purposes and consideration therein
mentioned, and that he or they had subscribed the same
as witnesses at the request of the grantor. If the wit-
nesses are dead, or cannot be had, the handwriting of
the grantor and at least one of the witnesses may be
proved by depositions of two disinterested witnesses.*
When husband and wife convey lands of the hus-
band, the certificate of acknowledgment must show
that the wife acknowledged her relinquishment of
dower ; but not when the lands conveyed belongs to the
wife. Neither deeds nor mortgages are required to be
recorded within any specified time, but mortgages are
not liens until recorded.
Acknowledgment by Husband and
Wife, Lands of Husband.
State of , county of , ss.
Be it remembered, that on this day came before
the undersigned (name and title of officer), within
and for the county aforesaid, duly commissioned
and acting, A. B., to me well known as the
grantor in the foregoing deed, and stated that he
had executed the same for the consideration and
purposes therein mentioned and set forth.
And on the same day also voluntarily appeared
before me, W. B., wife of the said A. B., to me
well known, and in the absence of her said hus-
band, declared that she had of her own free will
signed and sealed the relinquishment of dower
in the foregoing deed, for the purposes therein
contained and set forth, without compulsion or
undue influence of her said husband.
Witness my hand and seal, as such (title of
Officer) on this day of .
(Signature and title of officer.)
Acknowledgment by Husband and
Wife, Lands of Wife.*
State of , county of , ss.
On this day came before me, a duly commis-
sioned, qualified, and acting (here insert name and
title of officer), within and for the county aforesaid,
A. B. and W. B. his wife, to me well known as
the grantors in the foregoing deed ; and the said
A. B. stated that he had executed the same for
the consideration and purposes therein men-
tioned and set forth ; and the said W. B., in the
absence of her said husband, voluntarily declared
that she had of her own free will executed the
same for the purposes therein contained and set
forth, without compulsion or undue influence of
her said husband.
Witness my hand as such (title of officer), on
this day of .
(Signature and title of officer.)
(-Gould's Dig. ch. 117, J i. b-Gould's Dig. ch. 37.
CALIFORNIA.
The proof or acknowledgment of an instrument may
be made within the State before a justice or cleric of
the supreme court, a judge or clerk of a court of record,
a court commissioner, county recorder, notary public,
or a justice of the peace. 1
If proved or acknowledged out of this State, but
in the United States, it may be before a justice,
judge, or clerk of a court of record of the United States,
any justice, judge or clerk of any court of record, a no-
tary public, or by a commissioner appointed by the
governor of this State for that purpose ; also by any
other officer of the State or Territory where the acknowl-
edgment is made, authorized by its laws to take such
proof or acknowledgment.)
If taken or made out of the United States, befor*
a minister, commissioner, or chargi d'affaires of th
United States resident and accredited in tho country
where the proof or acknowledgment is made, or a consul,
vice-consul, or consular agent of the United States resi-
dent in the country where the proof or acknowledgment
is made, or a judge of a court of record of the country
where the proof or acknowledgment is made, or com-
missioner of deeds for this State or a notary public. k
Acknowledgment General Form.
State of , county of , ss.
On this day of , in the year , before
me (name and title of officer), personally appeared
A. B., known to me (or proved to me on the oath of
W. S.) to be the person whose name is subscribed
to the within instrument, and acknowledged to
me that he (she or they) executed the same v
f Seal. ] (Signature and official title.)
If the deed be executed by a corporation, after the
words " known to me." etc., insert " to be the president
(or secretary) of the corporation that executed the within
instrument, and acknowledged to me that such cor-
poration executed the same." 1
Acknowledgment Of Married Woman.
A conveyance by a married woman in the State of
California has the same effect at law as if she were un-
married. There need not, therefore, be a separate form
of acknowledgment for a married woman, but the same
form can be used as if she were unmarried. The abore
general form will answer every purpose of a valid ac-
knowledgment by married women.
An acknowledgment by an attorney in fact is the
same as the general form, excepting after the^rord " in-
strument" insert "as the attorney in fact of , and
acknowledged that he subscribed the name of thereto
as principal, and his own name as attorney in fact."
Acknowledgments must be authenticated by the signa-
ture of the certifying officer, followed by the name or
title of office, and the official seal affixed, if the officer
has by law an official seal. The seal may be made by
an impression on the paper, or on wax or other sub-
stance attached.
Proof by Subscribing Witness.
Deeds can be proved " by the party executing it o
either of them ; or by a subscribing witness," or by
other witnesses as to the handwriting where all tha
parties and witnesses are dead, non-residents of th
State, or residence unknown, etc.
No particular form is specified or required. It must
show that the witness making the proof was sworn, and
deposed that the person whose name is subscribed to
the instrument as a party is the person described in it,
and that such person executed it, and that the witness
subscribed his name thereto as a witness.
If grantor be unknown, the officer may take the ac-
knowledgment after examining a known witness under
oath he must set out the fact that the grantor " was
proved by the oath of W. S., a credible witness, person-
ally known to me to be the person named in and who
executed the within instrument." With this modifica-
tion use the same form as for an ordinary acknowledg-
ment, together with a certificate of the chief judge or
i-C. C. 1181. J-C. C. ? 1182. k-C. C. ? 1183. 1-
C. C. \ 1189. o-C. C. 'i uga. P-C. C. 1 1198.
ACKNOWLEDGMENT.
presiding magistrate that the person making the attesta-
tion is the clerk of the court or the legal keeper of the
record, and in either case that the signature of such
person is genuine, and that the attestation is in due
form.
The signature of the chief judge or presiding magis-
trate must be authenticated by the minister or ambassa-
dor, or a consul, vice-consul, or consular agent of the
United States in such foreign country.'
CANADA.
Province of Ontario.
IB conveying the estate of a married woman no ac-
knowledgment iic separate examination of the wife is
required.
Proof of deeds, mortgages, etc., for registration, is to
W made by affidavit on the instrument, or securely
attached to it, as follows : Within the Province, be-
fore any commissioner for taking affidavits, before the
registrar of deeds or his deputy, or before a judge of
any of the superior courts or a county court. In Great
Britain, before a judge of the superior courts, or of a
county court, or the mayor or chief magistrate of any
tity, borough, or town corporate, certified under the
common seal of such city, etc., or a commissioner ap-
pointed for taking affidavits in any of the courts of
record of the Province. In any British colony or
possession, except India, before a judge of a court
of record, or the mayor of any city, borough, or town
corporate, certified under the common seal ; or before
any notary public certified under his official seal. In
India, before any magistrate or collector certified to
have been such under the hand of the governor of the
possession. In any foreign country, before the mayor
of any city, borough, or town corporate, certified under
the cimmon seal ; or before any British consul or vice-
consul resident in such country ; or before a judge of a
court of record or a notary public, certified under his
official seal.
Proof by Subscribing Witness.
State of , county of , to wit.
I (here insert i, name ; 2, residence; 3, addition,
tccupation, or calling, of the subscribing -witness in
full), make oath and say: i, That I was present
and did see the within (or annexed) deed (mortgage,
discharge of mortgage, or other instrument), anil a du-
plicate thereof (if the fact) duly executed, signed,
sealed, and delivered, by A. B. and C. D., the
parties (or two of the parties) thereto. 2. That the
said instrument and duplicate were executed at
(state place of execution). 3. That I know the said
parties so executing the said instrument (or such
one or more of them, according to the fact). 4. That
I am a subscribing witness to the said execution
of the (aid instrument and duplicate.
[Signed] W. S.
Sworn to before me
at
in the county of.
and State of.
on this day
A. D. 189-.
And I hereby certify the same under my offi-
cial seal.
(Titlt of same.)
(Signature of certifying officer.)
(Signature of Witness.)
CANADA.
Province of <fcnebec.
The execution of deeds to real property in the Prov-
ince of Quebec made by parties residing in the United
States are valid when o'uly executed according to the
laws or custom of the locality where executed.
If executed in presence of witnesses, one or all of such
witnesses must make an affidavit of the authenticity of
the signatures before the mayor or chief magistrate of
the locality, who must give a certificate to that effect,
which certificate should then be legalized by the nearest
British consul.
All such matters as the number of witnesses, seals,
etc., may be governed by the laws of the locality where
the deed is executed.
A wife, if she have any interest, such as waiver of
dower, or other right, may be a party to the deed, sub-
ject to the laws of the locality.
If the authenticity of any such deed is questioned, it
r-C. C. P. \ 1906. s-See General Statutes.
must be proved by evidence taken at the place of it!
execution by a commissioner appointed by the court.
Such deeds, to take effect, must be registered in con-
formity with the provisions of the Civil Code on the
registration of real rights.
Acknowledgment Taken in the United
States or Territories.
State (or Territory) of , county of , ss.
On the day of , A. D. one thousand eight
hundred and . Before me, J. P., of i place of
residence), (a justice of the peace for the county of ,
or mayor of , or a notary public duly appointed and
sworn for ), personally came and appeared A.B.,
the person who executed the foregoing deed
(power of attorney or other instrument), and to me
well known as such, who then and there acknowl-
edged that he had executed the same.
Witness my hand and seal at , on the day
and year first above written. J. P. [Seal. \
The above acknowledgment may be made before any
public officer of the country in which the power is made ;
but if the power be one authorizing the execution of a
discharge of a mortgage or other deed requiring registra-
tion, it must be proved by affidavit of one of the wit-
nesses before any minister or charge d'affaires, or con-
sul of her majesty in such foreign country.
COLORADO.
Acknowledgment of deeds, mortgages, etc., when
executed in this State, may be taken before any jus-
tice of the supreme or district courts, or any clerk of
either of said courts, or the deputy of any such clerk, or
before the probate judge of any county, such probate
judge and such clerks certifying the same under the
seal of such court respectively ; before the county clerk
of any county, or his deputy, he or his deputy certi-
fying the same under the seal of his county : before
any notary public, he certifying the same under his
notarial seal ; or before any justice of the peace within
his county ; Provided, that if the lands do not lie in
the county of such justice of the peace, then there must
be affixed to his certificate of acknowledgment the
certificate of the county clerk of such county, under his
hand and the seal of such county, to the official capacity
of such justice of the peace, and that the signature o{
such justice of the peace to the certificate of acknowl-
edgment is the true signature of such justice. When
executed outside of this State, and within the
United States or the Territories thereof, before the
secretary of any such State or Territory, certified by
him under the seal of such State or Territory ; before
the clerk of any court of record of such State or Terri-
tory, or of the United States, within such State or
Territory, having a seal, such clerk certifying the same
under the seal of such court ; before any other officer
authorized by the laws of such foreign State or Terri-
tory, to take and certify such acknowledgments ; Pro-
vided, there shall be affixed to the certificate of such
officer, a certificate by the clerk of some court of record
of the county, city or district wherein such officer
resides, under the seal of such court, that the person
certifying such acknowledgment is the officer he as-
sumes to be, that he has authority by the laws of such
State or Territory to take and certify such acknowledg-
ment, and that the signature of such officer to the certi-
ficate of acknowledgment is the true signature of such
officer ; or before any commissioner of deeds for such
foreign State or Territory appointed under the laws of
this State, certified under the hand and official seal o(
such commissioner. When executed out o' the
United States, before any court of record having a
seal, the judge or justice of such court certifying the
acknowledgment to have been made before such court,
under the seal of such court ; before the mayor or othrr
chief officer of any city or town having a seal, certified
under such seal by such mayor or other officer, or before
any consul of the United States within such foreign
country, certified by him under the seal of his consulate."
Acknowledgment General Form.
State of , county of , ss.
I (naming t'jfficer and the office), within and for the
county and State aforesaid, do hereby certify that
(naming the person), who is personally known to
me (or if not so known, and his or her identity is
proven to such officer by a -uii'ness, then say, " who was
proven to me by the oath of W. S., a credible witness!
to be the same person whose name is subscribed
to the foregoing (or within) instrument of writing
ACKNOWLEDGMENT.
at a party thereto, appeared before me this day
in person, and acknowledged that (he or she; exe-
cuted the same for the uses and purposes therein
set forth.
Witness my hand and the seal of said court (or
if by notary, say notarial seal) this - day of - ,
A. D. - .
[Seal.} (Signature and title .)
If taken before the clerk of a court of record, the
certificate should show that said court is a court of
record.
CONNECTICUT.
An acknowledgment, whether within or with-
out the State, is sufficient, if made before a justice of
the peace, notary public, judge of some court of ordinary
nisi prius or superior jurisdiction, or any officer having
power by law to take acknowledgments of deeds. Deeds
may also be acknowledged in the State by the commis-
sioners of the school fund, judges of probate, town
clerks, and commissioners of the superior court. AH
deeds executed by grantors residing out of the United
States may be personally acknowledged before a United
States consul, notary public, or justice of the peace.
A notarial seal proves itself. A certificate of the county
r.lerk should be annexed to an acknowledgment by a
justice of the peace. The magistrate must be person-
ally acquainted with the grantor.'
The omission of a notarial seal to a deed acknowl-
edged before a notary public does not invalidate the
deed.
The word ["Seal"] or the scroll [L. S.] are, either
of them, equivalent to a seal.
Acknowledgment by Corporation
General Form.
State of - , county of - , ss.
New York city, - , A. D. 18. Then and there
before me, a (name and official title'', within and for
the county and State aforesaid, duly commis-
sioned and acting as such, personally appeared
A. B. and W. B. his wife, signers and sealers of
the foregoing instrument, and severally acknowl-
edged the same to be their free act and deed be-
fore me. (Or, " personally appeared A. A., agent of
the C. C. Company, signer and sealer of the f ,n"!j 'ing
instrument, and acknowledged the same to be its free
act and deed, before me."')
Witness my hand and seal of office, on this -
day of - .
[Sfrt/.] (Signature and title.)
Proof by subscribing witness is not allowed.
DAKOTA, NORTH AND SOUTH.
Acknowledgments may be taken within these States
by a justice, clerk of supreme court or notary ; or within
the jurisdiction for which offit-ers are elected or ap-
pointed, by a judge, clerk of court of record, mayor,
register of deeds, justice of peace, commissioner of
United States and district courts, county auditor or any
public officer having an official seal. Outside of these
States, but within the United States, by a justice, judge
or clerk of any United States, State or Territorial court
of record, notary, or other official with power to take
acknowledgments. Without the United States, by a
minister, commissioner, charge d'affaires, consul, vice-
consul, or consular agent, resident in the country where
the acknowledgment is taken. All the above officials
must sign officially and use their seals , where seals are re-
quired." Acknowledgments by justices of the peace, for
other counties than ttieir own, must have the certificate
of their court of record, under seal, to the effect that said
justices are authorized to so act, and that their signatures
^ire genuine.* The general form of acknowledgment is :
State of - , County of - , ss.
On this - day of - 189 , personally appeared
before me - known to me (or proved to tne on
o.ith of - ) to be the person who is described in
and who executed the within instrument, and
acknowledged to me that he (she, or they*! ex-
ecuted the same. (Signature and title of officer.)
Conveyances by married women have the same legal
effect as if unmarried and may be acknowledged in the
same way. For proof by subscribing witness see Newr
York form.
Acknowledgment may be taken out of State before
any consul-general, consul, or commercial agent of the
United States duly appointed in any foreign country, at
t-See General Statutes. u-Civil Code, gg 517, 518.
the places of their respective official residences, or before
any judge of a district or circuit court of the United
States, or the chancellor or any judge of a court of rec-
ord, or the mayor or chief officer of any city or borough,
and certified under the hand of such chancellor, judge,
mayor or officer, and the seal of his office, court, city
or borough; or in open court, certified under seal of the
court ; or before a commissioner of deeds appointed by
the governor or by a notary public of any State.
The certificate of acknowledgment must show that
the wife relinquishes her dower, and the private exami-
nation must be certified in the words stated in the form
as given below.
Acknowledgment Husband and Wife*
State of , county of , ss.
Be it remembered, that on the day of ,
in the year of our Lord one thousand eight hun-
dred and , personally came before the sub-
scriber, a (name and official title), A. B. and W. B.
his wife, parties to this indenture, known to me
personally (or proved on the oath of W. S.) to be
such, and severally acknowledged said indenture
to be their act and deed respectively, and that
the said W. B. being at the same time privately
examined by me apart from her husband, ac-
knowledged that she executed the said indenture
willingly, without compulsion, or threats, or
fear of her husband's displeasure.
Given under my hand and official seal the day
and year aforesaid. (Signature and official title.)
Proof by subscribing witness is not allowed.
DISTRICT OF COLUMBIA.
Instruments for the conveyance of any estate or
interest in lands, tenements, or hereditaments, within
this District, or for declaring or limiting any use or
trust in or out of same, must be executed and ac-
knowledged before a judge of a court of record, and of
the State and county in which grantor may be : or
before any judge of supreme, circuit, district, or terri-
torial court of United States : or before any justice of
the peace of the State, District, or Territory, and
county in whicli grantor may be ; or before notary
public in any State or Territory, or the District of
Columbia ; or any commissioner of the District Circuit
Court. The certificate must be by the register, clerk,
or prothonotary of the court or county under his hand
and the seal of his office, that the judge or chancellor
U or was such at time of execution and acknowledg-
ment ; and in case of any officer out of District of
Columbia, certificate of the clerk or other public ofhcef
having cognizance of the fact under his official seal
that such person was at the date of his certificate of
acknowledgment in fact such officer as he purports to
be. In a foreign country the execution and ac-
knowledgment must be before any judge or chancellor
of any court, master, or master extraordinary in
chancery, or notary public in such foreign country, and
the execution and acknowledgment, and also identity'
of grantor, must be certified upon or annexed to tht
deed by such official.*"
AelciiowIertfTment by a Notary or Jns-
t'co Cacncral Form.
County of , State of , ss.
I, O. R., a (giving official titled in the county
afcrcso.id, in said State, do hereby certify that
G. R., party to a certain deed bearing date on the
day of , and hereto annexed, personally
appeared before me in my county aforesaid, the
sc.id G. R. being personally well known to me,
the person who executed the said deed, and ac-
knowledged the same to be his act and deed.
Given under my hand and seal this day
of . O. R. \_Seal.\
To bar dower it is required that a wife shall be ex-
amined apnrt from her husband, and having the deed
fully explained to her, shall declare that she had will-
ingly signed, sealed, and delivered the same, and
wished not to retract it; and the certificate appended
should state the facts.
Acknowledgment Husband and Wife.
State of , county of , ss.
I, O. R., a (giving official title) in and for the
county aforesaid, in the said State, do hereby
Laws 1872-73, ch. 31. v-See Code, Laws, etc. w-See
Statutes at Large.
30
ACKNOWLEDGMENT.
certify that A. B. and W. B. his wife, parties to
a certain deed bearing date on the day of
, and hereto annexed, personally appeared
before me in the county aforesaid the said A. B.
and W. B. his wife, being personally well known
to me to be the persons who executed the said
deed, and the said A. B. acknowledged the same
to be his act and deed ; and the said W. B., wife
of the said A. B., being by me examined privily
and apart from her husband, and having the
deed aforesaid fully explained to her, acknowl-
edged the same to be her act and deed, and
declared that she had willingly signed, sealed,
and delivered the same, and that she wished not
to retract it.
Given under my hand and seal this day
of . O. R. [Sea!.]
Before any of the officers in the United States or
Territories, indicated as competent to take acknowl-
edgments, other than those officers last above named,
and before any of the officers in a foreign country,
mentioned as competent to take acknowledgments,
execution of the deed, as well as its acknowledgment,
should be made ; and the certificate should so state.
FLORIDA.
All deeds, mortgages, or other conveyances, by
whi<_h any right, title, interest, or claim to any real
estate in this State may be conveyed, affected, defeated,
,mpaireJ, or released, all powers of attorney relating to
the same, and all instruments under seal, to be used or
recorded in this State, in order to entitle the same
to be so used or recorded, in case the same shall be
acknowledged out of th's State, shall be acknowl-
edged by the party or parties executing the same, or
the execution thereof by said party or parties shall be
proved by a subscribing witness thereto before a com-
missioner duly appointed by the governor of Florida.
In those cities or counties where no commissioner is
appointed, or where he is unable to act, the acknowl-
edgment or proof may be taken before the chief justice,
judge, presiding justice, or president of any court of
record of the United States, or of any State or Terri-
tory thereof, having a seal and a clerk, or prothonotary ;
but no proof or acknowledgment taken by any such
party shall entitle such deed, power of attorney, or con-
veyance to be recorded, unless taken within some place
or district to which the jurisdiction of the court to
which he belongs shall extend, and the place of taking
such acknowledgment be by him set forth in his certifi-
cate of acknowledgment, and also that the court of
which he is such chief justice, judge, presiding justice,
or president, is a court of record ; the certificate shall
state that the party taking the acknowledgment knows
or has satisfactory proof that the person making such
acknowledgment is the individual described in and who
executed the deed or instrument under seal ; the certifi-
cate of acknowledgment of such chief justice, judge,
presiding judge, or president, shall be accompanied by
the certificate of the clerk, or prothonotary of the
court for which he is such judge, justice, or president
as aforesaid, under the seal of said court, that he is
duly appointed or authorized as such judge, justice, or
president, etc. The acknowledgment of s married
woman (residing out of this State) to a deed, con-
veyance, or instrument under seal, purporting to be
executed by her, shall not be taken, unless, in addition
to the foregoing requisites, she acknowledges, on a
separate or private examination by the officers taking
her acknowledgment, apart from her husband, that she
executed such deed, conveyance, or instrument under
leal, freely, and without any fear or compulsion of or
from her husband. The officer must in all cases certify
to the identity of the grantor. It is competent for him,
however, to satisfy himself of the identity of the parties
at his own discretion. 1
Deeds, etc., executed in this State of lands, or
Miy interest in lands therein, shall be executed in the
presence of two witnesses, who shall subscribe their
names to the same as such, and the persons executing
such deeds may acknowledge the execution thereof
before any judge, clerk of the circuit court, notary
public or justice of the peace within the State, and if
any such deed or conveyance of land shall be executed
in any other State, Territory, or district of the
United States, such deed may be executed according to
the laws of such State, Territory, or district, and the
execution thereof may be acknowledged before any
X-Bush's Digest, p. 151. y-Laws 1873, p. 18.
judge or clerk of a court of record, notary public,
justice of the peace, or other officer authorized oy th
laws of such State, Territory, or district, to take ac-
knowledgment of deeds therein, or before any commis-
sioner appointed by the governor of this State for such
purpose.
If such deed be executed in any foreign country
it may be executed according to the laws of such
country; any execution thereof may be acknowledged
before any notary public therein, or before any minister
plenipotentiary, minister extraordinary, minister resi-
dent, chargi d'affaires, commissioner, or consul of the
United States appointed to reside therein, or before a
commissioner appointed by the governor of this State
for such purpose, which acknowledgment shall be cer-
tified therein by the officer taking the same under his
hand, and his seal of office shall be affixed to such
certificate.
If any such deed or other conveyance shall be exe-
cuted and acknowledged in any other State or country,
before any officer not having an official seal, he
hall have attached thereto a certificate of the clerk or
other proper certifying officer of a court of record or
certificate of the secretary of state, minister plenipoten-
tiary, minister extraordinary, minister resident, chargi
d'affaires, commissioner, or consul (as t)i<: case may
be), that the person whose name is subscribed to the
certificate of acknowledgment was, at the date thereof,
such officer as he is therein represented to be ; that he
believes the signature of such person subscribed thereto
to be genuine, and that the deed is executed and ac-
knowledged according to the laws of such State, Ttrri'
tory, district, or foreign country.!
The wife may relinquish her dower in any land,
tenements, or hereditaments, by joining in the deed
made by the husband, or she may execute a separate in-
strument under her hand and seal , in the presence of two
witnesses. When made in this State, her relinquish-
ment of dower (to be effectual) must be accompanied by
an acknowledgment under her hand and seal, taken and
made separately and apart from her husband, befort
some judicial officer of tliis State, that it was made
freely and voluntarily, and without any compulsion,
constraint, apprehension, or fear of or from the husband.
'When made out of this State, but within the United
States, it shall be taken in the manner aforesaid, by
the clerk or prothonotary of some court of record in tue
State, Territory, or district in which it shall be made,
in the presence of the judge or justice, or of one of the
judges or justices of the court to which the clerk or
prothonotary who takes the acknowledgment shall
belong. And the taking of such acknowledgment, and
the certificate of the clerk or prothonutary, shall be
authenticated under the hand of the judge or justice
present at the making thereof, by his certifying that
the said acknowledgment was made in his presence,
and that the person acting as clerk or prothonotary wa
at the time of his so doing the clerk or prothonotary of
the court of which he is judge or justice.
If any such relinquishment ot dower shall be made
out of the United States, the acknowledgment of the
party making it shall be taken in the manner as afore-
said, by and before some public minister, consul or vice-
consul, commercial or vice-commercial agent of the
United States residing in the country in which the
acknowledgment may be taken, and shall be certified
under the hand ai.d the seal of office of such public
minister, consul or vice-consul, commercial agent or
vice-commercial agent. J
Relinnuisbment of Dower Taken out
of the State.
State of , city or county of , ss.
Be it remembered, that on this day of ,
in the year of our Lord , before me, the clerk
of the court for the (city or) county of ,
and State of , which said court is a court of
record, personally came W. B., wife of A. B., to
me well known as the person described in, and
who executed the foregoing deed of conveyance
(as the case may be), and acknowledged that she
made herself a party to and executed the same,
for the purpose of relinquishing her dower, in
and to the lands and tenements therein de-
scribed ; and the said W. B., on a private exam-
ination taken and made before me, in the pres
ence of the Hon. J. J., judge of our said court,
separately and apart from her said husband, ac
knowledge* and says that the said relinquish-
ACKNOWLEDGMENT.
ment and renunciation of dower was and is
made freely and voluntarily, and without any
compulsion or constraint, apprehension or fear
of or from her said husband, the said A. B.,to
which acknowledgment the said W. B. has in
my presence and in the presence of the said J. J. ,
judge of our said court, this day set her hand
and seal.
Witness my hand and the seal of our said court
at , in , this the day and year first above
written.
[Seal of Court.] C. C. , Clerk, etc.
Acknowledgment Certificate.
State of , city or county of , ss.
I. J- J-i judge of the court of the (city or
Bounty) and State aforesaid, do hereby certify
that the foregoing acknowledgment was made
in my presence at , within the jurisdiction
of our said court ; and that C. C., before whom
the said acknowledgment was taken, and whose
signature is attached thereto, was at the time
of his so doing the clerk of the said court, of
which I am the judge (and that the signature of the
said (name of clerk) to said acknowledgment to be
genuine). J. J., Judge, etc.
The wife should also acknowledge with the husband,
before the proper officer, in the usual form, in order to
admit the deed to record.
Proof by Subscribing; Witness.
State of , county of , ss.
Be it remembered, that on this day of ,
in the year ;. , before me (name and title of
officer), personally appeared W. T., whose name
is affixed as a subscribing witness to the fore-
going deed between A. B. and E. F. ; and who,
being duly sworn, deposes and says, that the
said A. B. duly signed, sealed, and delivered the
foregoing deed to the said E. P., as his act and
deed, in the presence of him, the said W. T., and
also in the presence of N. S. , the other subscrib-
ing witness to said deed, who then at the request
o'-' the said A. B. duly signed and attested the
same in the presence of the deponent, and of the
said A. B., the grantor.
In testimony whereof, I have hereunto set my
K and and affixed my seal the day and year first
above written.
[ Official sealJ\ (Signature and title of officer?)
Acknowledgment Out of the State.
State of , city or county of , ss.
Be it remembered, that on this day of ,
in the year , personally appeared before me,
a commissioner duly appointed and authorized
by the executive authority of Florida under the
laws of said State to take within the State of
proof and acknowledgment of deeds, etc. (or
other officer, as the case may be), to be used and
recorded in said State, A. B., to me well known
to be the person who executed the foregoing
(and annexed) deed by him sealed and subscribed ;
and the said A. B. acknowledged the execution
thereof to be his free act and deed, for the uses
and purposes therein mentioned.
In testimony whereof, I have hereunto set my
hand and affixed my official seal the day and
year first above written.
[ Official seal.'] (Signature and title of officer.)
GEORGIA.
Conveyances of property in this State should be
attested (in order to admit them to record) by the follow-
ing officials : If within the State, by a notary public,
judge, or clerk of the superior court or ordinary of
court, or by any justice of the peace. Where a deed is
executed within the State, it is not necessary that the
notary public or other attesting officer should affix any
seal. If executed in another State, by a commis-
sioner of deeds for the State of Georgia, or a consul or
rice-consul of the United States, under their seals, or
by a judge of a court of record in the State where ex-
ecuted, with a certificate of the clerk, under the seal of
such court, or by two witnesses, one of whom is a
notary public, with the certificate of his appointment
attached. All deeds, mortgages, etc., to realty, should
be attested by two witnesses, the commissioner, consul,
etc., or judge, being one, and should be under seal (or
scroll)
-See General Statutes.
If the subscribing witness or witnesses be dead or
lunatic, or have removed without the State, or be other-
wise incapacitated to make the affidavit, the affidavit of
a third person to such death, lunacy, etc., and to the
genuineness of the handwriting of the subscribing wit-
ness or witnesses, shall be sufficient to admit the deed
to record.*
Renunciation of dower by the wife Is not required
in this State, except where the husband is alienating
lands to which he derived title through the wife by
marriage contracted prior to the statute of 1866.'
Acknowledgment General Form.
A simple acknowledgment before the witness^; ,
delivered in presence of." No further certificate by
the officer of the execution, or acknowledgment of tht
signing is necessary. This includes acts of husband
and wife.
Proof by Subscribing Witness Wben
Deed is not made before Officer.
State of , county of , ss.
Before me (name ana title of officer) personally
came W. T., to me known to be the individual
whose signature is affixed to the foregoing deed
as one of the witnesses thereto, who being sworn
says that he was present at the time when said
deed was executed, that he saw the same signed,
sealed, and delivered by A. B., whose signature
is thereto affixed as grantor ; that N. S., the other
subscribing witness thereto, was likewise present
at said time and witnessed said execution of said
deed, and that he the said W. T. and the said
N. S. then and there signed the same as attesting
witnesses. W. T.
Sworn to and subscribed before me this
day of , A. D. .
(Signature and title of officer.
IDAHO.
The proof or acknowledgment of every conveyance
affecting any real estate shall be taken by some one of
the following officers: If acknowledged or proved
within this State, by some judge or clerk of a
court having a seal, or some notary public or J. P. or
recorder for the proper county. If acknowledged or
proved without this State, and within the
United States, by some judge or clerk of any court
of the United States, or of any State or Territory
having a seal, or by any commissioner appointed by the
governor of this State for that purpose, or by any
official authorized by the laws of the State where the
acknowledgment is taken to take acknowledgments.
If acknowledged or proved without the United
States, by some judge or clerk of any court of any
state, kingdom, or empire having a seal, or by any
notary public therein, or by any minister, commis-
sioner, or consul of the United States appointed to reside
therein.
A husband and wife may by their joint deed convey
the real estate of the wife. Every conveyance affecting
real estate must be acknowledged or proved and certi-
fied.
Every power of attorney or other instrument in
writing, containing power to convey any real estate as
agent or attorney for the owner thereof, must be ac-
knowledged and certified in the same manner as above
described for deeds.
The party offering to make acknowledgment shall be
known to the officer, or prove himself to be the person
he represents, by the oath of a credible witness.
Acknowledgment Grantor unknown
to Officer.
State of Idaho, County of , ss.
On this day of , A. D. , personally
appeared before me, N. P., a notary public (judge
or other officer) in and for said county, A. B., proved
to me on the oath of to be the person whose
name is subscribed to the within conveyance ;
and he, the said A. B., acknowledged to me that
he executed the same.
In testimony whereof, etc.
(Signature and official title.)
-See General Statutes.
22
ACKNOWLEDGMENT.
Any officer authorized to take proof or acknowledg-
ment of any conveyance whereby any real estate is
conveyed or may be affected, may take and certify the
acknowledgment of a married woman to any such con-
veyance of real estate.
Such married woman must be known to the officer, or
satisfactorily proved to be the person represenied, and
must be examined apart from, and without the hearing
of her husband, and must acknowledge that the act is
free and voluntary, and without fear or compulsion, or
under influence of her husband, and that she does not
w;sh to retract the execution of the same.
No estate as tenant by courtesy allowed the husband,
nor dower to the wife.
Acknowledgment Single Person.
State of Idaho, County of , ss.
On this day of in the year 189 , before
me , a in and for said county, personally
appeared known to me to be the person whose
name subscribed to the within instrument,
and acknowledged to me that he executed the
same.
In witness whereof, I have hereunto set my
hand and affixed my official seal, the day and year
in this certificate first above written.
(Signature and title of official!)
Acknowledgment Husband and Wife:
OR LATTER PART FOR MARRIED WOMAN ALONE.
State of Idaho, County of , ss.
On this day of in the year 189 , before
me , a personally appeared known to
me to be the person whose name is subscribed
to the within instrument, and acknowledged to
me that he executed the same ; and on this
day of in the year 189 , before me, the officer
above described, personally appeared known
to me to be the person whose name is subscribed
to the within instrument, described as a mar-
ried woman; and upon an examination without
the hearing of her husband, I made her ac-
quainted with the contents of the instrument,
and thereupon she acknowledged to me that
she executed the same, and that she does not
wish to retract such execution.
In witness whereof I have hereto set my hand
and affixed my official seal, the day and year in
this certificate first above written.
{Signature and title of official.)
The acknowledgment to a conveyance made by a
corporation must be taken by and before the same offi-
cers prescribed for other parties.
State of , county of , ss.
On the day of , A. D. , before me
personally came P. P., the president of the
company, personally known to me to be the
president of the corporation that executed
the above instrument, and acknowledged to me
that such corporation executed the same.
In testimony whereof, I have hereunto set my
hand and affixed my seal of office the day and
year first above written.
{Seal.} (Signature and title.)
Proof by Subscribing: Witness.
The proof of the execution of any conveyance where-
by any real estate is conveyed or may be affected when
not acknowledged shall be, ist, by the testimony of a
subscribing witness ; or, ad, 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.
No proof of a subscribing witness shall be taken un-
less such witness shall be personally known to the officer
taking the proof to be the person whose name is sub-
*cribed to the conveyance as a witness thereto, or shall
be proven to be such by the oath or affirmation of a
credible person.
No certificate of such proof shall be granted unless
such subscribing witness shall prove that the person
whose name is subscribed thereto as a party is the per-
son described in, and who executed the same, that such
person executed the conveyance, and that such witness
subscribed his name thereto as a witness thereof.
State of , county of , ss.
On this day of , A. D. one thousand
eight hundred and , personally appeared be-
fore me (here insert name and title of officer}, in and
for the said county, , personally known to
me to be the same person whose name is sub-
scribed to the annexed instrument as a witness
thereto, who being by me duly sworn deposed
and said that he resides in , that he was pres-
ent and saw A. B. , personally known to him to
be the same person described in and who exe-
cuted the said annexed instrument as A. B., party
thereto, sign, seal, and deliver the same ; and
that the said A. B. acknowledged in the presence
of said affiant that he executed the same freely
and voluntarily, and for the uses and purposes
therein mentioned, and that he, the said affiant,
subscribed his name as a witness thereof.
In testimony whereof, I have hereunto set my
hand and affixed my official seal the day and year
in this certificate first above written.
[Seal. ] (Signature and title of officer.)
ILLINOIS.
Instruments for the conveyance of land must be
acknowledge^ or proved before either of the following
officers : 'When acknowledged within this State,
before a notary public or United States commissioner,
who shall affix his seal ; a master in chancery, circuit or
county clerk, justice of the peace (the official character
of the latter, if he be without the county where the land
lies, to be certified by the clerk of the county court),
any court of record having a seal, or any judge, justice,
or clerk thereof, if before the court or clerk, the seal
of court being affixed. When acknowledged or
proved without this State, and within the United
States : before a justice of the peace (his official char-
acter being certified as above), notary public, United
States commissioner, commissioner of deeds, mayor of
a city, or clerk of a county, such officer affixing his
official seal, any judge, justice, or clerk of any United
States, State, or Territorial court; or the acknowledg-
ment may be in conformity with the laws of the State
where made, in which case a certificate of conformity
from the clerk of a court of record, with the seal of court
affixed, is required, or conformity may be proved by the
laws of such State. 'When acknowledged or proved
without the United States : before any court having
a seal, mayor, or chief officer of any city or town having
a seal, minister or secretary of legation, or consul of the
United States in any foreign country, attested by his
official seal, or any officer authorized by the foreign law
to take acknowledgments ; if the latter has no official
seal, proof that he is duly authorized is required ; or
the acknowledgment may be in conformity with the
foreign law, and so certified by any consul or minister
under his official seal. When an acknowledgment is
made before a commissioner of Illinois, it must comply
with the laws of this State, and be certified under his
official seal.
Proof of the execution of any instrument may be
made by n subscribing witness ; and, when the grantor
or subsci.bing witness is deceased, the officer may
take proof of their handwriting, or of the handwriting
of the grantor, if there be no subscribing witness, and
grant a certificate thereof.
Acknowledgment Husband and Wife.
State of , county of , ss.
I (name and title of officer], do hereby certify that
A. B. and W. B. his wife, personally known to
me to be the same persons whose names are sub-
scribed to the foregoing instrument as having
executed the same, appeared before me this day
in person, and acknowledged that they signed,
sealed, and delivered the said instrument as their
free and voluntary act, for the uses and purpose*
therein set forth, including the release ana wai-
ver of the right of homestead.*
Given under my hand and official seal this
day of , A. D. .
[Seal.] (Signature and title of officer)
Proof by Subscribing Witness.
State of , county of , ss.
Be it remembered, that on this day of ,
A. D. , before me (name and -.itle of officer) duly
appointed and commissioned, personally ap-
peared W. T.,tome personally known to be a sub-
scribing witness to the foregoing deed (or as the
case may te, " who has proved to me on oath of W. S
*8ee 27, next page.
ACKNOWLEDGMENT.
a credible witness, to be a subscribing witness to the
foregoing deed")i who, after being duly sworn
according to law, deposeth and saith that A. B.,
whose name appears subscribed to said deed, is
the real person who executed the same, and that
he the said W. T. subscribed his name as a witness
thereto, in the presence, and at the request of, the
said A. B., which is sufficient evidence to me of
the execution of said deed.
In testimony whereof, I have hereunto set my
hand and seal at ,this day of ,A.D.
[Seal.\ (Signature and title of officer.)
Waiving Homestead Exemption.
*"Sec. 27. No deed or other instrument
shall be construed as releasing or waiving the
right of homestead, unless the same shall con-
tain a clause expressly releasing or waiving
such right. And in such case the certificate of ac-
knowledgment shall contain a clause substantially as
follows : including the release and waiver of
the right of homestead,' or other words which
shall expressly show that the parties executing the
deed or other Instrument intended to release such
right. And no release or waiver by the husband shall
bind the wife unless she join In such release or
waiver." R. S. 1877, Ch. 30, g 27.
To entitle any conveyance, mortgage, or instru-
ment of writing to be recorded, it must be ac-
knowledged by the grantor, or proved before any
judge or clerk of a court of record, justice of the peace,
auditor, recorder, notary public, or mayor of a city in
this or any other State, or before any commissioner ap-
pointed in any other State by the governor of this State,
or before any minister, charge, d'affaires, or consul of
the United States in any foreign country.*
When any conveyance, mortgage, or other instrument
required to be recorded, is acknowledged in any county
in this State other than the one in which the same is re-
quired to be recorded, the acknowledgment must be
certified by the clerk of the circuit court of the county
in which the officer resides, and attested by the seal of
said court ; but an acknowledgment before an officer
having an official seal, if attested by such official seal,
is sufficient without such certificate.* A county sur-
veyor is authorized to have a seal, and take and certify
acknowledgments of mortgages and deeds for realty.
Any acknowledgment of any conveyance in a foreign
country, as above provided, requires no certificate other
than the official seal of the officer taking said acknowl-
edgment.'
To entitle to record in this State conveyances
acknowledged out of this State and within the
United States, the same must be certified by the clerk
of any court of record of the country in which the offi-
cer receiving the acknowledgment resides, and attested
by the seal of said court ; but an acknowledgment before
an officer having an official seal, attested by his official
seal, is sufficient without such certificate. J
All deeds may be proved according to the rules of the
common law, before any officer authorized to take
acknowledgments, and being so proved are entitled to
record. k
It is not necessary for a married woman to acknowl-
edge her deed in any form other than that required by
unmarried persons. 1
The certificate of any such acknowledgment must be
io writing upon or attached to such conveyance.
Acknowledgment Hnsband and Wife.
State of - , county of - , ss.
Be it remembered, that on this - day of - ,
A. D. - , before me (name and title of officer tak-
ing the acknowledgment), duly commissioned and
qualified, personally appeared A. B. and W. B.
his wife, the grantors in the foregoing deed, and
severally acknowledged the execution of the
ame.
In testimony whereof, I have hereunto set my
K-R. S. 1881, I 2933. h-id. 2934. i-id. g 2937.
}-id. 2935. b-id. $3936. 1-id. 2938. in-id. 2950.
hand and affixed my official seal the day and yat
aforesaid.
{Seal.} (Signature and title of officer.)
Proof by Subscribing Witness.
State of , county of , ss.
Be it remembered, that on this day of .
A. D. , before me, the undersigned (name *n*
title of officer), personally appeared W. T., the
subscribing witness to the execution of the
within deed, of lawful age, who being by me
duly sworn upon his oath did depose and say
that on the day of , A. D. , he saw
the within-named grantors, A. B. and W. B. his
wife, sign, seal, and deliver the within deed, as
their act and deed ; that this deponent at the
same time signed his name as a witness of the
execution of said deed, at the request and in the
presence of said grantors, which grantors wer
at the time over the age of twenty-one years,
and of sound mind and memory, and laboring
under no disability so far as deponent knows.
In testimony whereof, I have hereunto set my
hand and affixed my official seal the day and
year aforesaid.
{Seal.) (Signature and HtU of officer.)
IOWA.
Instruments affecting real estate executed
within the State must be acknowledged before soma
court having a seal, or some judge, or clerk or deputy
clerk thereof, or some J. P., or notary public, or a count;
auditor or his deputy.
Instruments affecting real estate executed out of thil
State but within the United States must be ac-
knowledged before some court of record, or officer hold-
ing the seal thereof, or before some commissioner of
deeds appointed by the governor of this State, or before
some notary public or justice of the peace; and when
before a justice, a certificate under the official seal of
the proper authority, of the official character of said
justice and of his authority to take such acknowledg-
ments, and of the genuineness of his signature, shall
accompany said certificate of acknowledgment. Such
instruments, if executed without the United States,
may be acknowledged or proven before any ambassador,
minister, secretary of legation, consul, ckargi d'affaires,
consular agent, or any other officer of the United States
in any foreign country, who is authorized to issue cer-
tificates under the seal of the United States. Such in-
struments may also be acknowledged or proven befora
any officer of a foreign country who is authorized by
the laws thereof to certify to the acknowledgments of
written documents ; but the certificate of acknowledg-
ment by a foreign officer must be authenticated by one
of the above-named officers of the United States, whose
official written statement that full faith and credit is
due to the certificate of such foreign officer shall b
deemed sufficient evidence of the qualification of said
officer to take acknowledgments, and to certify thereto,
and of the genuineness of his signature or seal, if he
have any."
The certificate of acknowledgment must contain the
title of the court or person before whom it was taken ;
that the person making the acknowledgment was per.
sonally known to be the identical person whose name is
affixed thereto ; or that such identity was proved by at
least one credible witness (naming him) ; and that such
person acknowledged the instrument to be his voluntary
act and deed."
If the grantor die, or his attendance cannot be pro-
cured, or he refuses to acknowledge it, proof of the due
execution and delivery of the deed may be made by one
competent person other than the vendee or other person
to whom the instrument is executed, and the certificate
of acknowledgment must contain the title of officer tak-
ing same, that it was satisfactorily proved that grantor
was dead, or that his attendance could not be procured,
or that he refused to acknowledge same, and the names
of the witnesses by whom proof was made, that the in-
strument was executed by the person whose name is
signed thereto."
The execution of any deed, mortgage, or other instru-
ment in writing, executed by an attorney in fact, may
be acknowledged by the attorney executing the same
and the certificate thereof must contain the titlr of
officer taking acknowledgment, that the person signing
same was personally known to be the identical pe~so*
n-See General Statutes.
ACKNOWLEDGMENT.
signing samr at attorney in fact for grantor, and that
iuch person acknowledged the instrument to be the act
and deed of grantor by him as his attorney thereunto
appointed, voluntarily done and executed."
In every conveyance of real estate the joining of the
wife with her husband is deemed sufficient to pass all
her interest in the property, either as his wife or in her
own right.
Conveyances by corporations may be executed by
*ny officer thereof, qualified thereto by charter or laws
of the corporation, by giving his title as such officer, cer-
tifying that he is duly authorized to act, and by attach-
ing the seal of the corporation."
A married woman may convey her interest in real
estate in the same manner as other persons.
Acknowledgment Husband and Wife.
State of - , county of - , ss.
On this - day of - , A. D. - , before me
(title of the court or person before whom the acknowl-
edgment is taken} personally came A. B. and W. B.
his wife, to me personally known to be the iden-
tical persons whose names are affixed to the
above deed as grantors, and acknowledged the
txecution of the same to be their voluntary act
fend deed.
Witness my hand and notarial (or official) seal
the day and year above written.
[Seal.] {Signature and title of officer?)
Proof by Subscribing Witness.
State of - , county of - , ss.
Be it remembered, that on this - day of - ,
A. D. - , before me (title of court or officer before
whom the acknowledgment is taken} personally ap-
peared W. T., who being by me first duly sworn,
did depose and say that A. B., the grantor in
foregoing deed, was personally known to him,
and that the said A. B. was dead (or state the rea-
sons for his non-attendance), which is satisfactory
proof to me that his attendance could not be
procured to make this acknowledgment (or that
having appeared he refused to acknowledge the instru-
ment;; and the said W. T. further deposed and
said that he saw A. B., the grantor therein, sub-
scribe and deliver said deed ' or that the said A. B.,
the grantor therein, acknowledged to him that he had
subscribed, sealed, and executed said deed), for the
uses and purposes therein mentioned, which is
satisfactory proof to me that said instrument
Was executed by said A. B., whose name is there-
unto subscribed as a party.
In testimony whereof, I have hereunto set my
hand and affixed my notarial (or other official seal
f office) seal the day and year aforesaid.
(Signature and title of officer.)
KANSAS.
All conveyances and other instruments affect-
ing real estate, acknowledged within this State,
must be acknowledged before some court having a seal,
or some judge, justice, or clerk thereof, or some justice
of the peace, notary public, county clerk, or register of
deeds, or mayor or clerk of an incorporated city.P
Xf acknowledged out of this State, it must be
before some court of record, or clerk or officer holding
the seal thereof, or before some commissioner to take
the acknowledgments of deeds, appointed by the gov-
ernor of this State, or before some notary public or
justice of the peace, or before any consul of the United
States, resident in any foreign port or country. If
taken before a justice of the peace, the acknowledgment
must be accompanied by a certificate of his official
character, under the hand of the clerk of some court
of record, to which the seal of said court must be
affixed.*
General Form of Acknowledgment.
State of - , - county, ss.
Be it remembered, that on this - day of - ,
A. D. - , before me, the undersigned, a - in
and for (said county,) came - , who is (or are)
personally known to me to be the same person
(er persons ^ who executed the (above, foregoing or
within) instrument of writing, and such person
n -See General Statutes. O-Tide XIII. eh. 6. p-G.
t 1868, Ch. 33, \ 9. q-Id. i 10.
(or persons each) duly acknowledged the execution
of the same.
In testimony whereof, I have hereunto set my
hand (and affixed my official or notarial seal) this
day of , A. D. .
[Seal.] O. R. (Official titlt.)
Acknowledgment by Husband and
Wife.
The State of , county, ss.
Be it remembered, that on this day of ,
A. D. , before me, the undersigned, a in
and for said county, came A. B. and W. B. his
wife, who are each personally known to me to
be the same persons who executed the (above,
foregoing or within) instrument of writing, and
uch persons each duly acknowledged the ex-
ecution of the same.
In testimony whereof, I have hereunto set my
hand, (and affixed my seal), this day of
-, A. D.
[Seal.}
O. R. (Official title.)
Acknowledgment by Attorney.
State of , county, ss.
Be it remembered, that on this day f ,
A. D. , before me, the undersigned, a in
and for said county, came A. B., by A. A., hi
attorney in fact, who is personally known to me
to be the same person who executed the (above,
foregoing or within) instrument of writing for said
A. B., and he duly acknowledged the execution
of the same (by virtue of a power of attorney, duly
executed by said grantor, bearing date the day of
, A. D. , and recorded in the office of the ,
of county, in the State of , in volume ,
page , of ) for and as the act of said A. B.
In testimony whereof, I have hereunto set my
hand (and seal) this day of , A. D. .
[Seal.} O.K.. (Official title.)
Acknowledgment^to Confirm Deed
Executed during Infancy.
State of , county, ss.
Be it remembered, that on this day of ,
A. D. , before me, the undersigned, a in
and for said county, came I. I., who is personally
known to me to be the same person who ex-
ecuted the (above, foregoing or within* instrument
of writing, and such person duly acknowledged
that said instrument was formerly executed by
him when an infant under the age of twenty-one
years ; that he since arrived at full age ; that he
is desirous of confirming his former execution
thereof, and duly acknowledged the execution of
the same.
In testimony whereof, I have hereunto set my
hand (and affixed my notarial or official seal), this
day of , A. D. .
[Seal. J O. R. (Official titled
Acknowledgment of Administrator or
Executor.
State of , county, ss.
Be it remembered, that on this day of ,
A. D. , before me, the undersigned, a in
and for said county, came A. E. (executor of the
last will and testament, or administrator of the estate
and Affects , of A. B., deceased, who is personally
known to me to be the same person who ex-
ecuted the within instrument of writing, and
such person duly acknowledged the execution of
the same.
In testimony whereof, I have hereunto set my
hand and affixed my seal the day and year
last above written.
\Seal. ] Signature : ( Official title.)
The within deed approved by me, this day
of , A. D. .
[Seal. } P. J. , Probate Judge.
Acknowledgment of Guardian.
State of , county, ss.
Be it remembered, that on this day of ,
A. D. , before me, the undersigned, a in
and for said county, came G. N., guardian of the
person and estate of I. B., minor heir of A. B.,
deceased, who is personally known to me to be
the same person who executed the within instru-
ment of writing, and such person duly acknowl-
edged the execution of the same.
In testimony whereof, I have hereunto et my
ACKNOWLEDGMENT.
hand and affixed my seal, the day and year
last above written.
| Seal.} Signature: (Official title.)
The within deed approved by me, this day
of , A. D. .
[Seal.] P. J. , Probate Judge.
Acknowledgment of Sheriff.
State of , county, ss.
Be it remembered, that on this day of ,
A. D. , before me, the undersigned, a in
and for the county aforesaid, came S. P., Sheriff
of county, in the State of Kansas, who is
personally known to me to be the same person
who executed the within instrument of writing,
ind such person duly acknowledged the execu-
tion of the same.
In testimony whereof, I have hereunto set my
hand and affixed my seal, the day and year
last above written.
[Seal. } Signature : ( Official title.)
Acknowledgment Tax Deed.
State of Kansas, county, ss.
I hereby certify that, before me , a in
and for said county, personally appeared the
abova-named C. C., clerk of said county, person-
ally known to me to be the clerk of said county
at the date of the execution of the above convey-
ance, and to be the identical person whose name
is affixed to, and who executed the above con-
veyance, as clerk of said county, and who ac-
knowledged the execution of the same to be h:s
voluntary act and deed, as clerk of said county,
for the purpose therein expressed.
Witness my hand and seal this day of ,
A. D. . '
[Seal.] (Signature and official title.)
The husband must join in conveyance of wife's prop-
erty ; corporations execute conveyances by the presi-
dent, presiding member, or trustee thereof, attested with
hei' corporate seal, and acknowledged the same as con-
veyances of private parties.
Unacknowledged deeds may be proved before any
officer authorized to take acknowledgments. The wife
need not be " examined apart from her husband," or
" rlinquish her dower."
Proof by Subscribing Witness.
State of , county of , ss.
Be it remembered, that on this day of ,
A. D. , before me (here insert name and title in
full) duly commissioned in and for the county and
State aforesaid, personally appeared W. T., by
whose oath duly administered by me, it is proved
to my satisfaction that A. B., the grantor named
in and who executed the foregoing deed of con-
veyance, has died since executing the same (or
that for some other cause his attendance could
not be procured in order to make the acknowl-
edgment, or that, having appeared, he refused to
acknowledge the deed, as the case may 6e}, and
that said instrument of conveyance was so ex-
ecuted by the said A. B., whose name is there-
unto subscribed by himself as a party in the pres-
ence of the said W. T.
Witness my hand and official seal the day and
year first above written.
[Seal. } (Signature and title of officer.)
This form of acknowledgment can only be used if the
grantor die, or his attendance cannot be procured, or
having appeared before the officer he refuses to acknowl-
edge the deed. As no subscribing witnesses are re-
quired by the law in this State, the proof may be made
by any person knowing the facts to be proven, except that
in cases where a deed is witnessed in fact proof of the
handwriting of the grantor and of the witnesses cannot
be resorted to until it is shown that the subscribing wit-
nesses are dead, or cannot be had to prove the execu-
tion of the instrument. Such proof may be made before
any court or officer authorized by the law of the State
to take the acknowledgment of the grantor in person.
They are also empowered by Jaw to issue subpoenas for
witnesses to prove the facts required by law to be es-
tablished, and to compel their attendance by attach-
ment.
KENTUCKY.
Deeds Cmortgages, etc.) by persons other than
diarried women may be admitted to record when
xecuted in this State, x. On the acknowledgment
before the proper clerk by the party making the deed.
a. Or by the proof of two subscribing witnesses, or by
the proof of one subscribing witness who shall also
prove the attestation of the other. 3. Or by proof of
two witnesses that the subscribing witnesses are both
dead, and also like proof of the signature of one of them
and of the grantor. 4. Or by like proof that both the
subscribing witnesses are out of the State, or that one
is so absent and the other is dead, and also like proof
of the signature of one of the witnesses and the grantor.
5. Or on the certificate of a clerk of a county court of
this State that the same had been acknowledged or
proved before him as required by this section.'
Deeds (mortgages, etc.) executed ot-.t of this
State ana within the United States by persons
other than married women may be admitted to record
when the same shall be certified, under his seal of office^
by the clerk of a court or his deputy, or by a notary
public, mayor of a city, or secretary of State, or com-
missioner to take the acknowledgment of deeds, or by
a judge, under the seal of his court, to have been ac-
knowledged or proved by him in the manner hereby
required."
Deeds (mortgages, etc.) executed out of the
United States by persons other than married women
may be admitted to record when the same shall be cer-
tified by any foreign minister or consul, or secretary of
legation of the United States, or by the secretary of
foreign affairs, certified under his seal of office, or the
judge of a superior court of the nation where the deed
shall be executed, to have been acknowledged or proved
before him in the manner prescribed by law.'
Where a deed is proved by persons other than the
subscribing witnesses, the officer shall state the nam*
and residence of such persons in his certificate.
The deed (mortgage, etc.) of a married woman,
to be effectual, shall be acknowledged before some one
of the officers named in the preceding sections and
lodged in the proper office for record. Previous to
such acknowledgment it shall be the duty of the officer
to explain to her the contents and effect of the deed,
separately and apart from her husband, and thereupon,
if she freely and voluntarily acknowledge the same, and
is willing for it to be recorded, the officer shall certify
the same as follows : i. Where the acknowledgment
is taken by an officer of this State, he shall simply
certify that it was acknowledged before him and when
it was done, which shall be evidence that she had beem
examined separately and apart from her husband, and
the contents explained to her, and that she had volun-
tarily acknowledged the instrument and consented that
it should be recorded. 2. Where the acknowledg-
ment shall be taken by an officer residing out of
this State, the same shall be acknowledged and certi-
fied to the effect following : T
Acknowledgment Married Woman out
of this State.
Commonwealth (or Kingdom) of - , county
(or town, or city, or department, or parish) of
- , set.
I, O. R. (here give his official title), do certify that
this instrument of writing from A. B. and his
wife W. B. (or from W. B., wife of A. B.) was this
day produced to me by the parties, and the con-
tents and effect of the instrument being explained
to said W. B. by me, separately and apart from
her husband, she thereupon declared that she did
*reely and voluntarily execute and deliver the
same to be her act and deed, and consented that
the same might be recorded.
Given under my hand and seal of off.cc thii
- day of - .
[Seal:] O. R.
If the husband join in the deed with his wife
and acknowledge it before the same officer, his acknowl-
edgment maybe certified with that of his wife imme-
diately succeeding the word "parties," thus, "which
was acknowledged by the said A. B. to be his act ana
deed.""
Proof by Subscribing: Witnesses.
State of - , county of - , ss.
I, A. B. (here give his title), do certify that this
day came before me W. T. and N. S., the sub-
scribing witnesses to the foregoing deed 'or other
instrument', by A. B. to C. D., which witnessea
r-G. S. 1873, ch. 24, 3 15.
t-Id.gi 7 . u-Id.
s-Id. 3 16; 3 Bush 573.
v- Id. $ 21. w-Id. Jai.
ACKNOWLEDGMENT.
are personally known to me to be the same whose
names are so written as witnesses, and being
olemnly sworn by me in due manner, did sev-
erally declare on their oaths, that the said A. B.
did acknowledge this instrument to be his act
and deed, that the signature thereto was made
by him, that they know him to be the same per-
son who is named as the grantor therein, and
that they did subscribe said deed as witnesses by
his request.
Given under my hand and seal of office this
day of .
[Seat.] (Signature and title of officer.)
Corporations execute instruments as individuals, and
die acknowledgment and certificate are in the same
form, except that the corporation must sign and ac-
knowledge by its principal officer, and affix the corpor-
ate seal.
LOUISIANA.
I Any conveyance or instrument may be acknowledged
before a commissioner of Louisiana, whose certificate
under seal will admit it to record there. This officer
may also certify to the official character and functions
of all public officers in the State for which he is ap-
pointed. An acknowledgment made in conformity
with the laws of any other State is valid in this
State. The official character of the person before
whom the acknowledgment is made must, however, be
properly verified. 1
When they are not executed or acknowledged before
a commissioner of Louisiana, they must be authenti-
cated as follows :
ist. By some judge of a court having a seal, to have
been taken before him, specifying the time and place
where taken, or that the officer before whom it was sub-
scribed was the proper officer, and that his attestation is
in due form.
:id. The genuineness of the signature of such judge,
the existence of the court, and the fact that such judge
is a member thereof, must be certified by a clerk of the
court, under the seal thereof.
3d. The official character of trie officer before whom
it is subscribed may also be shown by the certificate of
the governor, the secretary of state ; the chancellor, or
the keeper of the great seal of the State, or,
4th. It may be taken before any commissioner for
Louisiana, duly appointed and commissioned by the
governor, and the said commissioner may also certify
the official capacity and acts of any judge, justice of the
peace, or other public officer, holding a commission or
acting under the authority of the State or Territory in
which he resides, and for which he shall have been
appointed.
Acknowledgment of deeds executed within this
State, conveying lands situated in or out of the State,
may be made before a notary public, or parish recorder,
or his deputy, in the presence of two witnesses, or it
may be drawn up and signed as a private act, and then
acknowledged with the above formalities, or the wit-
nesses may go before the recorder and swear that they
saw the party sign. If the grantor be unknown, the
officer taking the acknowledgment should be satisfied of
his identity. 1
Conveyances, etc., by corporations are executed and
acknowledged by the proper officer in the same form as
individuals. 1
Wherever a married woman joins with her
husband in any act affecting his real estate, it is the
duty of the officer before whom the act is passed to
txamine her, apart from the presence of her husband,
touching the freedom of her action, and to inform her
fully of the nature of her rights upon the property of
her husband, and it must appear upon the face of the
act that this has been done. In other cases, no particu-
lar form of words is required.*
Acknowledgment Husband nnd Wife.
State of , county of , ss.
Be it remembered, that on this day came before
me, O. R. (name and title of officer) , within and for
the county and State aforesaid, duly commis-
sioned and acting as such, A. B. and W. B. his
wife, to me known personally (or proved such by
two credible witnesses) to be the persons whose
names are subscribed to the foregoing deed, and
the said A. B. acknowledged that he had executed
the said conveyance (or other instrument) for the
consideration and purposes therein mentioned
X-See General Statutes.
and set forth, and the said W. B. being by me
first made acquainted with the contents of said
instrument, in an examination apart from her
husband, and fully advised of the nature of hei
rights upon his property, acknowledged that she
executed the same freely and without compulsion
or undue influence of her said husband.
Witness my hand and seal of office on this
day of . (Signature and title of officer.)
MAINE.
Deeds in order to be recorded must be acknowledged,
if executed in this State, before a J. P., or notary
public; but if executed out of this State, before any
justice of the peace, magistrate, or notary public in any
of the United States, or by a commissioner appointed
in any other State by the governor of this State ; in any
foreign country, by any United States minister or
consul, or notary public. A wife must join in a deed
of her husband to relinquish dower, or may do so by r.
separate instrument. If she joins with her husband,
the acknowledgment of either is sufficient. If she exe-
cutes a separate deed, she must acknowledge it. She
need not be examined separate from her husband in
order to acknowledge any deed. The husband must
join with the wife in conveying her real estate, when it
was deeded to her by him or his relatives, or paid for
by his means, but not otherwise.!
The acknowledgment of any one grantor is sufficient
and the acknowledgment of the wife is the same as that
of any other person.
Acknowledgment General Form.
Officer without Seal.
State of , county of , ss.
On this day of , A. D. , personally
appeared the above-named (grantors) and ac-
knowledged the foregoing instrument by them
signed, to be their free act and deed.
Before me, J. P., Justice of the Peace.
The magistrate need not certify that he personally
knows the grantor.
The deed of a corporation is acknowledged by tht
person authorized by the special vote or the general by-
laws of the corporation, and in behalf of the corpora-
tion, to sign it ; for example :
State of , county of , ss.
On this day of , A. D. , personally
appeared the above-named (agent or attorney), and
acknowledged the foregoing instrument to be the
free act and deed of (the corporation).
Before me, J. P., Justice of the Peace.
Acknowledgment Commissioner of Deeds, or othrr
person hailing a Seal, out of this State.
State of , county of , ss.
On this day of , A. D. , personally
appeared before me (give name and title) the
above-named A. B. (grantor), and acknowledged
this instrument to be his free act and deed.
In testimony whereof, I have hereunto set my
hand and affixed my official seal the day and year
aforesaid.
[Seal. ] (Signature and title of officer.)
Proof by Subscribing Witnesses.
The following proof must be attached to the deed to
which it relates :
State of , county of , ss.
On the day of , A. D. , at the request
of C. D., the grantee in the foregoing deed, I
caused A. B., the grantor, a resident of this
county, to be legally summoned to appear before
me on the day of , A. D. , to hear the
testimony of and , subscribing witnesses
to said deed, therein stating the date of said deed,
the names of parties thereto, and of the subscrib-
ing witnesses ; and on said day of , A. D.
, said witnesses appeared and testified, ana
said grantor was (or was not) present; and I was
satisfied by the testimony of said witnesses that
they saw said deed duly executed by A. B., the
grantor.
In testimony whereof, I have hereunto set my
hand and affixed my official seal the day and year
aforesaid. [Seal. ] (Signature and title of officer. ^
The summons must be issued and served at least
seven days before the time of hearing.'
V-R. S. on. 73, % i, 2, 17; ch. 61, i ; ch. 103, \ d
. -R. S. ch. 73, $ 18-23.
ACKNOWLEDGMENT.
If acknowledged 'within the State, the acknowl-
edgment may be made before a justice of the peace,
judge of the orphans' court or ot the circuit court of
any county, or before the judge of the superior court,
court of common pleas, or circuit court for Baltimore
city. If acknowledged before a justice of the peace
within the State, but out of the county or city in which
the real estate or any part of it lies, the official character
of the justice must be certified to by the clerk of the
circuit or superior court under his official seal.
If acknowledged without this State, but within
the United States, the acknowledgment may be made
before : ist, a notary public ; zd, a judge of any court
of the United States , 3d, a judge of any court of any
State or Territory having a seal ; 4th, a commissioner
of this State to take the acknowledgment of deeds.
If acknowledged without the United States,
the acknowledgment may be made before any minister,
consul-general, consul or consular officer of the United
States ; any notary public, or a commissioner of this
State to take acknowledgment of deeds."
Every officer, before whom any acknowledgment
shall be made, shall give a certificate thereof, and in-
dorse on, or annex to the deed, such certificate, and the
certificate shall be recorded with the deed.
To every certificate of acknowledgment taken without
this State, before a judge of any court having a seal, the
seal of such court shall be affixed.
The certificate of acknowledgment shall contain the
name of the persou making the acknowledgment : the
official style of the officer taking the acknowledgment ;
the time when it was taken, and a statement that the
grantor acknowledged the deed to be his act, or made
an acknowledgment to the like effect.
No separate examination of a. married woman is
required, b
Acknowledgment Husband and Wife.
State of , county of , ss.
I hereby certify that on this day of ,
A. D. , before me (here insert name and title of
official) personally appeared A. B. and W. B. his
wife, and did each severally acknowledge the
aforegoing deed (or other instrument) to be their act.
In testimony whereof, I have hereunto sub-
scribed my name and affixed my official seal the
day and year above written.
[Seal.} (Signature and title of officer.)
MASSACHUSETTS.
Acknowledgment may be made before any jus-
tice of the peace, or notary public, in the State; or
before any justice of the peace, magistrate, or notary
public or commissioner, appointed for that purpose by
the governor of this State, within the United States, or
in any foreign country ; or before a minister or consul
of the United States in any foreign country.
Acknowledgments taken out of the State by any
magistrate other than a commissioner for Massachu-
setts, or a minister of the United States, should have
appended a certificate of the magistrate's appointment
and authority made by the secretary of state or clerk of
court of record.
The wife is not required to be examined separate and
apart from her husband.
The certificate of acknowledgment need not state that
the wife relinquishes her dower.
Letters of attorney made by husband and wife for the
purpose of authorizing conveyances of her real estate,
and not merely for the release of dower by the wife,
must be acknowledged by both.
Acknowledgment General Form.
Commonwealth of Massachusetts, county of
Suffolk, ss.
Boston, March ist, A. D. . Then personally
appeared the above-named A. B., and acknowl-
edged the foregoing instrument to be his free act
and deed. Before me,
J. P., Justice of the Peace.
Acknowledgments by husband and wife are made in
the same form, only saying " the above-named A. B.
and W. B., and severally acknowledged the fore-
going instrument to be their free act and deed."
Acknowledgment Husband and Wife.
State of , county of , ss.
Be it remembered, that on this day of ,
It-See General Statutes. b-Art. 45. c-Comp. Laws,
A. D. , before me, the undersigned (name and
title of officer), personally appeared A. B. and W.
B., his wife, who executed the foregoing con-
veyance, and severally acknowledged the same
to me to be their free act and deed.
In testimony whereof, I have hereunto set my
hand and affixed my official seal the day and year
aforesaid.
[5>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.
<J- R. S. 362.
- S. 248, $ 12?.
ACKNOWLEDGMENT.
37
State of , county, ss.
On this day of , in the year , before
.ne <name and title of officer), came A. B., known
to me to be the individual described in, and who
executed the above certificate, and he acknowl-
edged that he executed the same.
J. P., Justice of the Peace.
NORTH CAROLINA.
Where the grantor or maker and the subscrib-
ing witness to any deed conveying lands in this
State, or the maker of any letters of attorney, or other
instruments conveying the same, shall reside beyond
the limits of the State, but within the United
States, they shall acknowledge the same before a judge,
clerk of a court of record, notary public having a
notarial seal, mayor of a city having a seal, or J. P. of
the Slate in which such grantor, etc., resides. These
officers can also take the private examination of a mar-
ried woman, to which they must certify under their
respective seais. If the instrument is acknowledged or
proven before a J. P., a certificate from the clerk of the
court of record of the county in which such J. P. re-
sides, must be appended to the effect that such J . P. was
acting J. P. at the time of taking the acknowledgment,
etc., and that his genuine signature is affixed to the
probate. 1 Any commissioner of affidavits for the State
of N. C. , appointed by the governor thereof, in any of
the States and Territories of the U. S., or in the Dis.
of Col., may also take and certify the acknowledgment
or probate of deeds or other instruments.
Where the grantor or maker and the subscrib-
ing witness reside beyond the limits of the United
States, the acknowledgment or probate may be before
the chief magistrate of any city in the country where
the grantor or witness is resident; or before any am-
bassador, minister, consul, or commercial agent of the
United States ; and where such proof or acknowledg-
ment is certified under the corporate seal of such chief
magistrate, or under the official seal of such ambassa-
dor, minister, consul, or commercial agent, and whore
such certificate is affixed to the seal or other instrument,
and the same is exhibited before the probate judge
having jurisdiction, he shall adjudge that such deed or
other instrument is duly proved or acknowledged, and
shall thereupon order its registration where such regis-
tration is necessary. 1
When a deed, power of attorney, or other in-
strument shall affect the rights of a married
woman, it must be jointly executed by both husband
and wife, must be acknowledged by, or proved as to
both, and she must be examined privily and apart from
her said husband touching her voluntary assent thereto.
If the wife reside in some other State, her acknowledg-
ment and privy examination must be before a commis-
sioner appointed by the probate judge having jurisdic-
tion, or a commissioner of affidavits for the State of
North Carolina, appointed by the governor thereof, for
the State in which the wife resides ; and a certificate of
such acknowledgment and examination must be re-
turned to the probate judge of the proper county. 1
Whenever the subscribing witness to any instrument
required or allowed to be registered, shall be a non-resi-
dent, or shall be dead, and the maker shall also be a
non-resident or dead, the proof of the handwriting of
such witness and that of the maker, before the judge of
probate of the county where the instrument is sought to
be registered, shall be sufficient evidence of the execu-
tion thereof to admit the same to registration, and in
case such maker shall have subscribed with a mark
only, the proof of the signature of such witness shall be
sufficient. Whenever any such instrument shall not
have a witness, and the maker thereof shall be a non-resi-
dent or dead, proof of his handwriting shall be sufficient
to admit the same to registration. J
The certificate of acknowledgment must state that the
vife relinquishes her dower.
Acknowledgment Husband and Wife.
State of , county of , ss.
Before me (name and title of officer^, this day per-
sonally appeared A. B. and W. B. his wife, gran-
tors named in the foregoing deed of conveyance
(or other instrument), and the said deed being also
x-See General Statutes. y-Act 1870-71, ch. 271.
B-See Battle's Rev. ch. 35. a-g Ohio, 121 ; 19 Id.
406. b-2 Ohio St. 373; i Ohio, i; n Id. 475, 470.
C-3 Id. 154; 10 Id. 142. d-S. & C. ch. 75, 12. e-S.
& C. ch. 34, 26. f-2 Ohio, 55; 3 Id. 140; 9 Id. 168;
10 Id. 189; 6 Id. 247. f-i3 14. ?6o. 0-17 Id. 542;
produced and exhibited before me, the said A. B.
and W. B. acknowledged the execution thereof
by them as their act and deed for the purposes
therein expressed, and the said W. B., being by
me privately examined, separate and apart from
her said husband, touching her free consent in
the execution of the said deed of conveyance, in
her examination declared to me that she executed
the same freely, voluntarily, and without com-
pulsion or restraint upon the part of her said hus-
band, or any other person whatsoever, and did
still voluntarily assent thereto.
In testimony whereof, I have set my hand
and affixed my official seal this day of ,
A. D. .
[Seat.] (Signature and title of officer.)
Proof by Subscribing Witness.
State of , county of , ss.
Be it remembered, that on this day of ,
A. D. , personally appeared W. T., the sub-
scribing witness to the foregoing deed, to me
personally known, who on oath duly proves the
execution thereof for the purposes therein ex-
pressed.
In testimony whereof, I have hereunto set my
hand and affixed my official seal, the day and
year above mentioned.
[Seal.] (Signature and title of officer.)
The certificate of acknowledgment of husband or
wife on the sale of the husband's land is the same form
as the above, leaving out the closing words, "and did
still," etc., and inserting in lieu thereof the following,
"and this she does in relinquishment of her dower in
the land mentioned in said deed."'
OHIO.
Any instrument of writing, by which any land,
tenement, or hereditament is conveyed or other-
wise affected or incumbered in law, must have the
signing acknowledged a by the grantor or grantors,
maker or makers, in the presence of two witnesses, be-
fore a judge of the supreme court or of the court of
common pleas, a J. P. , b notary public, mayor, or other
presiding officer of an incorporated town or city, a com-
missioner of Ohio, 11 clerk of court , probate judge, county
surveyor, a consul of the U. S. resident in any port or
country," who ! must certify such acknowledgments on
the same sheet on which such deed, mortgage, or other
instrument of writing may be printed or written and
must subscribe his name to such certificate. 11
When a husband and wife, she being eighteen years
of age' or upward, executes within this State any deed,
mortgage, or other instrument of writing for the con-
veyance or incumbrance of the estate of the wife.J or her
right to dower k in any land, tenement, or hereditament,
situate within this State, such deed, mortgage, or other
instrument of writing must be signed by the husband and
wife ; and such signing must be attested and acknowl-
edged as aforesaid; no separate examination of the wife
is required. 1
All deeds, mortgages, powers of attorney, and
other instruments of writing for the conveyance
or incumbrance of any lands, tenements, and
hereditaments situate within this State, executed
and acknowledged, or proved in any other State,
Territory, or country in conformity with the laws of
such State, Territory, or country, or in conformity with
the laws of this State, is as valid as if executed in this
State, in conformity with the laws relating thereto."
AcKiiowledgmeii t Witb l>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 <or hereto an-
nexed), bearing date on the day of -, A. D.
, has (or have) acknowledged the same before
me in my county (or corporation) aforesaid.
Given under my hand this day of ,
A. D. . (Signature and title of officer.)
Or upon a certificate of acknowledgment of such per-
son, before any commissioner appointed by the gov-
ernor, within the United States, so written or annexed,
to the following effect :
State of , county of , ss.
I, C. R., a commissioner appointed by the gov-
ernor of the State of Virginia for the said State
(or Territory, or District) of , certify that A. B.
(or A. B. and \V. B.), whose name (or names) is (or
are) signed to the writing above (or hereto an-
nexed), bearing date on the day of , A. D.
, has (or have) acknowledged the same before
me in my State (or Territory, or District) aforesaid.
Given under my hand this day of ,
A. D. . (Signature and title of officer .)
Or upon a certificate of the clerk of any county or
f-See General Statutes, ff -See Code, ch. in. h-Code,
th. in, \ 2503.
corporation court in this State, or his deputy, or of the
clerk of any court out of this State and within the
United States, that the said writing was acknowledged
by such person, or proved as to him by two witnesses
before such clerk, , or before the court of which he is
clerk ; or upon a certificate under the official seal of any
minister plenipotentiary, charge ef affaires, consul-
general, consul, vice-consul, or commercial agent, ap-
pointed by the government of the United States to any
foreign country, or of the proper officer of any court of
such country, or of the mayor or other chief magistrate
of any city, town, or corporation therein, that the said
writing was acknowledged by such person, or proved as
to him by two witnesses, before any person having such
appointment, or before such court, mayor, or chief
magistrate. g
Admission to record of writing- from
husband and wife; effect on right of
wife.
When a husband and his wife have signed a
writing, purporting or contracting to convey any estate,
real or personal, or any writing authorizing another to
convey, or contract to convey, any such estate, such
writing may be admitted to record as to each of them,
according to the provisions above, and when it shall have
been so admitted to record as to the husband as well as
the wife, or if it be a writing executed under a power of
attorney, when such writing, as well as such power of
attorney, shall have been so admitted to record, it shall
operate to convey from the wife her right of dower in
the real estate embraced therein, and pass from her and
her representatives all right, title, and interest of every
nature which, at the date of such writing, she may hare
in any estate conveyed or embraced therein, as effectu-
ally a$ if she were, at the date, an unmarried woman.
Such writing shall not operate any further upon the
wife or her representatives by means of any covenant
or warranty contained therein which is not made with
reference to her separate estate as a source of credit, or
which, if it relate to her said right of dower or to any
estate or interest conveyed other than her own, is not
made with reference to her separate estate as a source
of credit.
Conveyance by married woman of
her separate estate ; how signed ; when
and where admitted to record.
Nothing contained in the preceding section shall be so
construed as to impair or affect any right or power a mar-
ried woman has, by her sole act, to convey or transfer any
estate real or personal which is her separate estate ; and
any writing, which is to be or may be recorded, signed
by a married woman, though not signed by her nus-
band, conveying or transferring any estate, real or per-
sonal, which is her separate estate as aforesaid, may be
admitted to record as to her, in the same manner as if
*he were unmarried.
Or, if the wife be without the United States, she
may appear before any minister plenipotentiary, chargi
if affaires, consul-general, consul, vice-consul, or com-
mercial agent, appointed by the government of the
United States to any foreign country, or before any
court of such country, or the mayor or other chief
magistrate of any city, town, or corporation therein,
who shall examine her, and make such explanation as
is above required where the wife is in the United States,
and if then she make such acknowledgment as is so re-
quired, the person having such appointment, or such
mayor or chief magistrate, or the proper officer of such
court, shall give a certificate, under his official seal, of
the said examination, explanation, and declaration, to
the effect required where the wife is within the United
States, and upon or annexed to such writing in like
manner, h
WASHINGTON.
A married woman shall not be bound by any deed
affecting her real estate or releasing dower, unless she
is joined in the conveyance by her husband, and shall,
upon examination by the officer taking the acknowledg-
ment, separate and apart from her husband, acknowl-
44
ACKNOWLEDGMENT.
edge that she executed the deed of her own free will,
and without fear of or coercion by her husband. The
officer must certify that he has made known to her the
contents of the deed.i
Acknowledgments of deeds and mortgages may be
taken by a judge of the supreme court, judge of the
superior court, justice of the peace, county auditor,
or his deputy, a clerk of the superior or supreme court,
or his deputy, or a notary public.!
Acknowledgment Husband anil Wife.
State of , county of , ss.
On this day of , A. D. , before me
(name and title of officer)^ personally appeared
A. B. and W. B., his wife, personally known to
me to be the identical persons described in, and
who executed the foregoing conveyance, and I
having first made known to them the contents
thereof, they did thereupon severally acknowl-
edge before me that they executed 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 by me privately examined, separate and
apart from her said husband, did further ac-
knowledge that she executed the same volun-
tarily, of her own free will, and without the fear
of or coercion from her husband.
In testimony whereof, I have hereunto set my
hand and affixed my official seal the day and
year first above mentioned.
[Seal. \ (Signature and title of officer.)
WEST VIRGINIA.
Deeds in this State must be executed under seal, must
be acknowledged, unless proved by two witnesses. *
Any deed, mortgage, deed of trust, power of attorney,
or contract in writing made in respect to real estate or
goods and chattels, including leases for more than five
years, shall be admitted to record as to any person
whose name is signed thereto, upon a certificate of his
acknowledgment before a justice, notary public, re-
corder, prothonotary, clerk of any court within the
United States, or commissioner appointed within the
same by the governor of this State, written on or an-
nexed to the same; or proved by two witnesses as to
him before the proper clerk of the county court or be-
fore the proper officer in foreign countries. *
If executed out of the United States, the certificate
must be under the official seal of a minister plenipoten-
tiary, <;harg& (T affaires, consul-general, consul, vice-
consul, or commercial agent, appointed by the govern-
ment of the United States to any foreign country, or of
the proper officer of any court of such county, or of the
mayor or other chief magistrate of any city, town or
corporation therein.
Acknowledgment Single Persons.
No form is prescribed by law for proving the execu-
tion of a conveyance, etc.,hy witness.
The two following forms for certificates of acknowledg-
ment are prescribed by the statute. 1 The officer is not
thereby required to certify that the grantors are person
ally known to him. The question of identity as to the
grantors who appear beforehim is left to the officer cer-
tifying the acknowledgment. The wife must in all cases
acknowledge the deed before the officer in person.
Deeds , etc. , can only be proved by witnesses, before the
proper recording officer of the county where they are
admitted to record ; or when executed out of the United
States, before a minister plenipotentiary, or other officer
above mentioned, having authority to take acknowledg-
ments in foreign countries."
Form of Acknowledgment Before a
Commissioner.
State of , county of , ss.
I, C. R., a commissioner appointed by the gov-
ernor of the State of West Virginia for the said
State (or Territory or District) of (or I, J. P., a
justice of the county aforesaid, and District of ;
or, I, etc. , giving- other official ' designation), &o certify
that A. B., whose name (or names) is (or are)
igned to the writing above (or hereto annexed)
bearing date on the day of A. D. ,
has (or have) this day acknowledged the same
before me, in my said .
Given under my hand this day of ,
A. D. . [Seal.] (Signature and title of officer.)
i-See General Statutes, ch. , g 3. j-See General
Statutes, ch. ,ls. It-See Code, ch. 72, 73, 74. 1-Code,
Acknowledgment Husband and Wife.
State of , county of , ss.
I, C. R., a notary public for the said county of
, do certify that A. B. and W. B., his wife,
whose names are signed to the above writing,
bearing date on the dayof , 189 , have this
day acknowledged the same before me in my
said county.
Given under my hand this day of , 189 .
(Signature and title of officer. )
Acknowledgment Corporation.
State of West Virginia, county, to wit :
I, C. R., a notary of the said county of , do
certify that A. B. personally appeared before me
in my said county, and being by me duly sworn,
did depose and say that he is the president of the
corporation described in the writing above, bear-
ing date the day of , x8 , authorized by
said corporation to execute and acknowledge
deeds and other writings of said corporation,
and that the seal affixed to said writing is the
seal of the said corporation, and that said writ-
ing was signed and sealed by him in behalf of
said corporation by its authority duly given.
And the said acknowledged the said writ-
ing to be the act and deed of said corporation.
Given under my hand, this day of , 18 .
^___^_^_ (Signature and title.)
Acknowledgment Certificate of Proof
of Deeds, etc.. by two Witnesses.
State of West Virginia, county of , ss.
In the clerk's office of the county court of
county (or consulate of the United States of America,
at , etc.), I, C. C., clerk of the county court of
county (or, I, C. L., consul of the United States
of America, at , etc.), do hereby certify, that the
foregoing deed, bearing date on the dayof
, A. D. , was this day proved before me as
to A. B. , the grantor (or one of the grantors) therein,
by W. T. and N. S., two witnesses thereto, who
declared upon oath before me that it was his act
and deed, and that they had seen him execute it.
Given under my hand, etc.
[Sea/.] (Signature and title.)
WISCONSIN.
Conveyances, etc., executed within this State, of
lands or any interest in lands therein, must be executed
in the presence of two witnesses, who shall subscribe
their name to the same as such, and the persons execut-
ing must acknowledge the execution before any judge or
court commissioner, clerk of a circuit court, county clerk ,
notary public, or justice of the peace; and the officer
taking the acknowledgment must indorse a certificate
of the acknowledgment, and the true date of making it,
under his hand."
Deeds conveying land, or any interest in land situated
in this State, if executed in any other State, Terri-
tory, or District of the United States, may be executed
according to the laws of such place, and the acknowl-
edgment may be before any judge of a court of record,
notary public, justice of the peace, master in chancery,
or other officer there authorized by law to take the ac-
knowledgment of deeds therein, or before a commis-
sioner appointed by the governor of this State for such
purpose, and if executed within the jurisdiction at
any military post outside of the State then it may be
acknowledged before the commanding officer. But in
all such cases, except the acknowledgment be made
before a commissioner appointed by the governor, or a
notary public (his seal of office affixed), there must be
attached to the deed a certificate of the clerk, or the
commandant of a military post, or other proper certify-
ing officer of a court of records of the county or dis-
trict within which such acknowledgment was taken,
under the seal of his office, that the person whose
name is subscribed to the certificate of acknowl-
ch - 73, 3, 4- m-Code, ch. 73, a, 3. n-See General
Statutes.
ACKNOWLEDGMENT ACQUIESCENCE ACTS.
45
edgment was, at the date thereof, such officer as he is
therein represented 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
such deed be executed in any foreign country, it may
be executed according to its laws, and acknowledged
before any notary public, with his seal annexed, or other
officer authorized by law there to take such acknowledg-
ments, or any minister extraordinary or resident chargi
if affaires, commissioner, or consul of the United
States, appointed to reside therein, and certified by him.r
A married woman's conveyance, whether by her
sole deed or by her joining with her husband to convey
her estate or release her dower, must be executed and
acknowledged as if she were sole. She may bar her
dower, if eighteen years of age, by simply joining in her
husband's conveyance; and she may, by letter of
attorney, executed in like manner, appoint an attorney,
who may be her husband, to sell or convey her estate,
or bar her dower in land, and his deed as her attorney
shall be effectual.
Deeds of lands within the State may be executed by
corporations created under the laws of the State, and
shall be signed by the president, or other authorized
officer of the corporation, and sealed with the seal of
the corporation, and countersigned by the secretary or
clerk thereof: and the person signing such deed may
acknowledge execution thereof before any officer author-
ized by law to take acknowledgments. 1 The common
practice is for the officers signing the deed to acknowl-
edge the same, and make oath that they are such officers,
that the seal is :he seal of the corporation, that they
have signed and acknowledged such deed, and affixed
the seal by order of the board of directors, trustees, or
other managing board of the corporation. New York
forms are followed, which see.T
Acknowledgment Husband and Wife.
State of , county of , ss.
Personally came before me this day of
189 , the above Cor within) named A. B. and
W. B., his wife (or, if an officer, adding name of
office) to me known to be the persons who
executed the foregoing (or within) instrument,
and acknowledged the same.
[Seai.] (Signature and title of official.)
No separate examination of wife is necessary.
The notary or justice may acknowledge in the form
prescribed by the law of the Stale where the acknowl-
edgment is taken, and affix certificate of clerk of court.
No statutory provision for proof by subscribing witness
out of this State. It is made by a proceeding in court on
summons to refusing grantor, if to be found, etc.T
WYOMING.
If any deed or mortgage shall be executed in any
Other State, Territory, or District of the United States,
the same may be executed according to the laws of such
State, Territory, or District, by any officer authorized
by the laws of such State, T erritory, or District to take
the acknowledgment of deeds or mortgages therein, or
\>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
<Atd severally," and "jointly or severally,"
hnve been construed as authorizing all to act
jcmtly, or each one to act separately, but not
a.; authorizing any portion of the number to do
the act jointly. b But where the authority is so
worded that it is apparent the principal intended
to give power to either of them, an execution
by a part will be valid. And generally, in
commercial transactions, each one of several
agents possesses the whole power. For exam-
r-Paley Ag. (Lloyd Ed. 1 161 ; 2 Kent Comm. 613, 614 ;
Story Ag. 50; i Chitty C. L. 213; 6 Ves. Ch. 250; 8
Ired. 74. 8-Paley Ag. 2, 161. tf-S:ory Ag. g 51 ; 5 Cush.
483. n-Story Ag. jjg 476, 477; Li verm.
Paley Ag. 184, 185 ; "2 Kent Comm. 643; a MassTcT. C.
244,343. v-See tit. Agents, w Story Ag. $ 478; Story
Bailm. g 202. x-i Liverm. Ag. 105; Story Ag. 58,
85,86; sBingh.442; 2H.B1.6i8; 10 Wend. 218; 6 S.
& R. 146; ii III. 177 ; 9 Met. (Mass.) 91 : 22 Pick. 85 ;
15 Miss. 365 ; 9 La. 387 ; n N. H. 424 ; 6 Ired. 252 ; 10
\la. (N. S.) 386 ; 21 Id. 488 ; i Ga. 418 : i Sneed, 497 ;
8 Humph. 509; 15 Vt. 155; 2 McLean C. C. 543; 8 How.
441. y-Story Ag. $ 76, 79; Paley Ag. (Lloyd's Ed.)
1 79> * 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
~(<i) ; 7 E7 & B. 301 ; 8 Wend. 494 ; i Denio, 471 ; 2 M'. &
W. 2 I7 : sM. &Sel. 383; 15 M. & W. 359. d-2 Comst.
126; 2 Denio, 118. e-n Wend. 477; i S. & Marsh, i.
62
AGENCY.
the agent/ And if, in receiving the money,
the agent was a wrong-doer, he will not be
exempted from liability by payment to his
principal.*
As to torts, there is a distinction between
acts of misfeasance or positive wrongs, and
nonfeasance or mere omissions of duty. In
the former case, the agent is personally liable
to third persons, although authorized by his
principal, 11 while in the latter he is, in general,
solely liable to his principal. 1
RIGHTS AND PRIVILEGES. As to their
principals. An agent is ordinarily entitled to
compensation for his services commonly called
a commission which is regulated either by
special agreement, by the usage of trade, or by
the presumed intention of the parties.J In gen-
eral, he must have faithfully performed the
whole service or duty before he can claim any
commissions. k He may forfeit his right to com-
missions by gross unskilfulness, by gross negli-
gence, or gross misconduct in the course of his
agency ; ! as, by not keeping regular accounts ; m
by violating his instructions ; by wilfully con-
founding his own property with that of his
principal ; u by fraudulently misapplying the
funds of his principal ; by embarking the
property in illegal transactions, or by doing
anything which amounts to a betrayal of his
trust .P
The agent has a right to be reimbursed his
advances, expenses, and disbursements reason-
ably and in good faith incurred and paid,
without any default on his part, in the course
of the agency,' and also to be paid interest on
such advancements and disbursements, when-
ever it may fairly be presumed to have been
stipulated for, or be due to him. r But he can-
not recover for advances and disbursements
made in the prosecution of an illegal transac-
tion, though sanctioned by or even undertaken
at the request of his principal ; B and he may
forfeit all remedy against his principal even for
his advances and disbursements made in the
course of legal transactions by his own gross
negligence, fraud, or misconduct ; ' nor will he
be entitled to be reimbursed his expenses after
he has notice that his authority has been re-
voked."
The agent may enforce the payment of a
debt due him from his principal on account of
the agency by an action for the amount ; and
he may also have the benefit of his claim by
way of set-off to an action of his principal
f-Paley Ag.
. 388, 389 ; 2 Liverm. Ag.
Story Ag. \ 300; 3 M. & S. 344; 7 John
260, 261 ;
. . . s. 179; i
Wend. 173. g-Paley Ag. 393, 394 ; i Camb. 396.
h-Story Ag. 311; Paley Ag. 396; i Wils. 328; i
Bes. & P. 410; 28 Me. 464. i-Story Ag. ? 308 ; Paley
Ag. 396, 397, 398 ; Story Bailm. j$ 400, 404, 507. J-Story
Ag. ?? 324, 326 : Paley Ag. 100, 101 ; 8 Bingh. 65 ; i
Caines, 349; 2 Id. 357. U-Story Ag. % 329, 331; i
Carr. & P. 384; 4 Id. 289 : 7 Bingh. 99; 16 Ohio, 412.
l-3Campb. 451; 7 Bingh. 569; 12 Pick. 328. m-8 Ves.
Ch. 48; ii Id. 35!; 17 Mass. 145; 2 Johns. Ch. 108.
n-9 Beav. Rolls. 284; 5 Bos. & P. 136; n Ohio, 363.
0-3 Chitty C. & M. 222. p-Story Ag. {$ 3?'-334 : Palsy
Ag. 104, 105 ; Story Eq. Jur. J 468 ; 12 Pick. 328, 332,
334. tt-2 Liverm. Ag. 11-13; Story Ag. j$ 335, 336;
Story Bailm. 196, 197, 357, 358; Paley Ag. 107, 108;
against him, provided the claim is not for un-
certain damages, and is in other respects of
such a nature as to be the subject of a set-off. T
He has also a particular right of lien for all
his necessary commissions, expenditures, ad-
vances, and services in and about the property
intrusted to his agency, which right is in many
respects analogous to the right of set-off. w Fac-
tors have a general lien upon the goods of their
principal in their possession, and upon the 1 ,
price of such as have been lawfully sold ly)
them, and the securities given therefor. 1 Ther j]
are other cases in which a general lien exists in
regard to particular classes of agents, either
from usage, from a special agreement of the
parties, or from the particular habit of dealing
between them ; such, for example, as insurance
brokers, bankers, common carriers, attorneys
and solicitors, packers, calico printers, fullers,
dyers, and wharfingers.?
As to third persons. In general, a mere
agent who has no beneficial interest in a con
tract which he has made on behalf of his
principal, cannot support an action thereon. "
An agent acquires a right to maintain an action
upon a contract against third persons, in the
following cases :
1. When the contract is in writing, and made
expressly with the agent, and imports to be a
contract personally with him; as, for example,
when a promissory note is given to the agent,
as such, for the benefit of the principal, and the
promise is to pay the money to the agent under
that name or description ; a and it has been held
that the right of the agent in such case to sue
in his own name is not confined to an express
contract : thus, one holding, as mere agent, a
bill of exchange, or promissory note, indorsed
in blank, or a check or note payable to bearer,
may sue on it in his own name. b
2. The agent may maintain an action against
third persons on contracts made with them
whenever he is the only known and ostensible
principal, and, consequently, in contemplation
of law, the real contracting party; as, if an
agent sell goods of his principal in his own
name, as though he were the owner, he is en-
titled to sue the buyer in his own name ; d and,
on the other hand, if he so buy, he may en-
force the contract by action. The renunciation
of the agent's contract by the principal does
not necessarily preclude the agent from main-
taining an action, but he will still be entitled
5 B. & C. 141 ; 3 Binn. 295 ; n Johns. 439 ; 4 Halst. Ch,
657. r-Story Ag. $ 338; 2 Liverm. Ag. 17; 2 BOUV.I
Inst. 36 ; 15 East. 223 ; 3 Campb. 467 ; 7 Wend. 315 ; 3
Caines, 226; 3 Binn. 295. 8-Story Ag. ? 344 ; i Lirerm.
Ag. 14-21 ; 3 B. & C. 639. t-Story Ag. \ 348; 12 Wend.
362 ; 12 Pick. 328, 332 ; 20 Id. 167. u-Story Ag. 349 ;
2 T. R. 113 ; 8 Id. 204 ; 3 Brown, Ch. 314. v-2 Liverm.
Ag. 34 ; Story Ag. $ 350, 385 ; 4 Burr. 2133 ; 6 Cow.
181 ; ii Pick. 482. w-Story Ag. j> 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(<?rour) attorney or attorneys by virtue of these
presents, jointly or either of them severally, my
(or our) true and lawful attorney or attorneys
to (setting forth the purpose for which the appoint-
ment is made).
Power of Attorney General Form.
To three persons joint and several in case of ab-
sence, death, or refusal of either or both, then of
another in his stead.
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-
Eoint A. T., O. R., and N. Y. , my (or our) true and
iwful attorney and attorneys, and in case of the
absence or decease of said O. R. and N. Y., or
either or both of them, or refusal of either or
both of them to act as such, then, and not other-
wise, I (or we) make, constitute, and appoint A.
A. my (or our) true and lawful attorney, together
with said A. T., in case of the absence or deatk
of said O. R. and N. Y., or either of them, or re-
fusal of either or both of them to act by virtue
hereof; or together with said O. R. and N. Y. in
case of absence or death of said A. T., or his re-
fusal to act by virtue hereof, as the case may be,
jointly, or any of them severally, to be my (or our)
true and lawful attorney and attorneys to
( state the purpose of the appointment).
Power of Attorney Various clauses to be inserted in
the general forms -where applicable.
To ACKNOWLEDGE CONVEYANCES, ETC.
to appear before any officer authorized by
the laws of to take acknowledgments, etc.,
and acknowledge a deed (mortgage, or other in-
strument) bearing date the day of , which
I, the said A. B., signed (sealed, etc.) to be my own
proper act and deed. Hereby ratifying, etc.
To ACKNOWLEDGE SATISFACTION OF MORTGAGE. ETC.
to appear before the recorder (or register) of
deeds (er county clerk, etc.) and acknowledge and
enter satisfaction of the sum of dollars, prin-
cipal, and dollars, interest upon (the margin
of) record No. , page , of a mortgage bear-
ing date the day of , from C. D. to A. B., <
of the following described premises (describing
them). Provided, said sum of dollars, princi-
pal, and dollars, interest, be paid in the man-
74
AGENCY.
ner and at the time in the condition of said mort-
gage mentioned.
To APPOINT APPRAISER, ETC.
to choose, at the discretion of , my at-
torney, a disinterested and discreet person, and a
(freeholder or householder) of county, who shall
be duly qualified, and faithfully and impartially
appraise, together with two such discreet and
impartial persons (of like qualifications), such (real
or personal) property (as shall be shown them by
for that purpose, tr, as is comprised in the following
schedule: viz. (describing it).
To ARBITRATE MATTERS, ETC.
to submit any and all matters in dispute
elating to (state -what), or respecting the premises
o arbitration or otherwise, with full power to
make and substitute for the purposes aforesaid,
and at his option, one or more attorneys.
Another.
That said attorney may submit any matter in
dispute respecting the premises to arbitration or
otherwise.
To ACCEPT, PAY FOR, AND SELL BANK STOCK.
to accept all capital stock in the bank
which I have already bought and contracted for,
or shall hereafter buy or contract to buy, of any
person or persons, upon the transfer thereof in
the customary and legal manner, and thereupon
to pay such sums of money or consideration for
the purchase of the same as may be theretofore
agreed upon ; and to and for my own use, sell
and transfer all or any of such stock as I shall
from time to time direct : and also for my own
use to receive the moneys and considerations
which shall become due and payable by said sales
and transfers, giving sufficient receipts and re-
leases for the same.
To CARRY ON BUSINESS GENERALLY.
to carry on and conduct the business of
(state what), at , in , to buy and sell (state
what), to receive and sell on commission (state
what), to manufacture (state what), and to buy,
sell, manufacture, and receive on commission
all goods, wares, and merchandise appertain-
ing to such business as he may deem proper,
and to draw, execute, make, sign, seal, and de-
liver for me, and in my name, all bills, bonds,
notes, conveyances and other instruments of
writing whatsoever, as shall be necessary to the
proper conducting of said business.
Another.
to take the general control and manage-
ment of my affairs, business and property, at
, in , to buy, sell, pledge, mortgage, exe-
cute, and enter into bonds, contracts, convey-
ances and encumbrances in behalf of the same ;
and in general to do and perform all other acts
and things which he may consider useful and
necessary, connected with my said affairs, busi-
ness, property and interests.
Another.
to take charge of my business o. , at
; to purchase and sell, for cash or on credit,
all such articles, goods, merchandise and wares
as he shall deem proper, necessary and useful* to
aid business ; to sign, accept and indorse all
notes, drafts and bills ; to state accounts ; to sue
and prosecute, compromise, collect and settle all
claims or demands due or to become due, now
existing or hereafter to exist in my favor ; to ad-
just and pay all claims or demands which now
exist or may hereafter arise against me, either
connected with said business or otherwise.
Another.
Know all men by these presents:
That I, A. B., of , merchant, do hereby con-
stitute my two clerks, C. L. and R. S., of , my
law ful and sufficient attorneys, jointly, for me, and
in my name, to manage and transact all business,
open all letters of correspondence and to answer
the same ; to draw, accept, make, indorse, and
pay all bills of exchange and promissory notes ;
to receive and receipt for all moneys, to draw and
sign all orders, checks and drafts for money on
the cashiers of , , banks, or any other
bankers or persons where I shall deposit or keep
oqoncv ; to arrange, balance, and settle all books
and accounts, and generally do every act, mattel
and thing which the nature of said business shall
require. Hereby ratifying whatever my said
attorneys may lawfully do by virtue hereof.
To CARRY ON COMMISSION BUSINESS, ETC.
to carry on, conduct, and transact, at ,
in , the business of a general commission
merchant, and more particularly the receiving
and selling on commission all kinds of dry and
wet groceries, together with all and every goods,
wares and merchandise appertaining to said
business, as my said attorney shall deem proper
and necessary ; to draw, make, execute, sign,
seal, and deliver for me, and in my name, all
bills, bonds, notes, conveyances, or other instru-
ments in writing whatsoever, which shall be
necessary to the proper carrying on, or conducting
and transacting the business aforesaid ; and to
do and perform all and every act and deed in
whatsoever name or nature, legally appertaining
to the same ; binding me as firmly and irrevoca-
bly by such deed or performance as if I were
myself present, thereto consenting ; hereby rati-
fying and confirming all that my said attorney
shall lawfully do or cause to be done by virtue
hereof.
To CARRY ON GENERAL MERCANTILE CONCERNS.
With clauses separate.
to carry on, conduct, manage and transact
the entire business concerns included in and per-
taining to (give the name and description o/ the busi-
ness) at , in .
For me, and in my name, to use and employ all
such means, rights, remedies and usages as are
best calculated for the safe and successful prose-
cution of said business, and to insure accessions,
increase, and preservation of all property ; the
diligent collection and settlement of indebted-
ness, the most judicious purchases and largest
sales therein, and for all and every other matter
and thing belonging or pertaining to said business.
Acceptance. To accept any bill or bills of ex-
change, drafts or orders, make: and execute any
promissory note or notes, bonds, contracts, or
other instruments of writing, in my name and on
my account, to or for any amount which he may
deem expedient, necessary and proper.
Accounts. To adjust and settle with all and
every person, all -accounts, demands and dues
subsisting or to subsist between them and me,
and to compound, arbitrate and agree to the
same, in such manner as my said attorney shall
deem best.
Actions. To appear, answer and defend ; to
commence, carry on, and prosecute any actions,
suits or legal proceedings, for any cause or thing
due or belonging, or to be demanded to, of, by or
from me, concerning any chattels, debts, de-
mands, duties, goods, merchandise, or matters
whatsoever, due or owing to or by me, hereto-
fore, now, or hereafter ; to discontinue, or become
nonsuit therein, and for cause to end, compro-
mise, make composition or agreement in and
concerning the same or any part thereof.
Collecting, etc. To ask, demand, sue for, levy,
recover and receive all debts, duties, goods, chat-
tels, rents, moneys and accounts whatsoever,
due or hereafter to become due, owing, or belong-
ing to me, on account of said business, or for or on
any other account whatsoever, by any person 01
persons whomsoever, and upon receipt of the
same, or any part thereof, to give acquittances
discharges, receipts or releases for the same.
Another.
To ask, demand, recover and receive all and
any sum or sums of money, debts, dues and mer-
chandise or rights, credits and effects, due or be-
longing to, or which may at any time hereafter
become due or payable unto me, from any person
or persons whomsoever.
Compromise, etc. To compound and compromise
for any debts, dues or demands owing, or which
may hereafter be owing to me, and to take less
than the whole or otherwise to agree for the
same, in such manner and on such terms as my
said attorney in his discretion may deem proper,
and for all or any of these purposes to make arid
AGENCY.
75
execute arty released, compromises, agreements,
or contracts, by deed or otherwise, in his opinion
necessary and expedient in the premises.
Debts. to pay and discharge all debts and de-
mands due and payable from me unto any person
or persons whomsoever.
Drafts, etc. to draw, accept, make and indorse
all bills of exchange, checks, drafts, promissory
notes, and agreements and contracts in writing, in
my own name (or in the name of my said attorney),
Which he shall see proper for the carrying on of
aid business.
Infringements, etc. to commence, carry on, in-
stitute and prosecute any proceeding, civil or
criminal, for any infringement of my rights as
proprietor of (state -what), and for the punishment
of any person or persons for the infringement of
the same, or the imitating, counterfeiting, or sell-
ing as real, spurious imitations of said (state as
above).
Insurance. to insure, or cause insurance to be
obtained upon the goods, wares, merchandise of
said concerns, or such parts thereof, and at such
premiums, as he shall in his discretion deem pru-
dent and necessary.
Leases. to receive all rents, issues and profits
of all my lands and tenements (or of the following
premises;, to wit (describing thein), and from time to
trme to renew the leases thereof, not extending
the same, however, beyond the day of ,
next.
Lands. to enter into and take possession of
any lands or tenements, or other real estate to
which I am or may be entitled, and recover pos-
session thereof, and damages for any injury done
thereto.
Purchase goods, etc. to purchase all goods,
wares, and merchandise for cash or upon credit,
at such prices and to such amounts as he shall
see proper, and the same to sell again on my
account and for my benefit, for any prices what-
soever.
Purchase real estate, etc. to purchase any real
estate on my account, in fee simple or otherwise,
at any prices or any exchanges whatsoever, and
for these purposes to receive, confirm, make and
execute any deeds, conveyances, contracts, or
other instruments whatsoever.
Sales of goods. to sell all or any part of said
goods, wares and merchandise which may come
to his possession or knowledge, on such credit
prices or terms as he shall deem proper.
Sales of land, etc. to sell, barter, exchange, or
dispose of any real estate, to any person or per-
sons, for any price and in any manner whatso-
soever, and for these purposes to execute and
acknowledge all deeds, conveyances and assur-
ances, -with general covenants of warranty against
all persons or incumbrances, or any other cove-
nants whatsoever.
Settlement of accounts, etc. to settle and adjust
all (partnership) accounts and demands (and all
other accounts and demands; now subsisting or
which may hereafter subsist between me and
any other person or persons whomsoever, and to
submit and decide the same by and to arbitra-
tion, or otherwise.
Workmen, clerks, etc. to engage, hire and em-
ploy all workmen, servants, clerks and assistance
for the better and more effectually carrying on,
conducting, managing and transacting said busi-
ness, and to discharge such of said employees as
he may deem proper and expedient.
Substitution- And I hereby give and grant unto
my said attorney full power to substitute one or
more attorney or attorneys under him, in or con-
cerning the premises or any part thereof; hereby
ratifying and confirming whatsoever my said at-
torney or his substitutes shall do by virtue hereof
in the premises.
Ratification. And whereas, said A. Y. has here-
tofore, as my attorney, exercised the powers
aforesaid, or some of them, and has, as my attor-
ney, executed divers agreements, bonds, con-
tracts, conveyances, deeds, writings and other
instruments, and other things in and about the
premises, I do therefore hereby ratify and con
firm all the doings of the said A. Y. as my attor-
ney in all matters and things by him done and
transacted at any time before the execution of
these presents, to all intents and purposes what-
soever.
To COLLECT DEBTS GENERALLY.
to ask, demand, sue for, collect, receive and
receipt for all sums of money, debts and demands
whatsoever, due, owing or belonging to me now
and hereafter, by or from all and every person
and persons whomsoever (or from C D. or his legal
representatives).
Another.
to ask, demand, sue for, collect and receive
all such sum and sums of money, accounts,
debts, dues, rents and other demands whatso-
ever, which are or shall be due, owing, payable,
or belonging to me, in any manner whatsoever,
by C. D., of , or his legal representatives, or
any of them (or by any person or persons residing or
being in the State oi ).
Another.
to demand, ask, sue for, collect and receive
all sums of money, accounts, debts, dues, rents
and demands of every description, kind and na-
ture whatsoever, which are due, owing or pay-
able from any person or persons whomsoever,
and to give good and sufficient receipts, acquit-
tances and discharges therefore; giving and
granting unto my said attorney full authority, etc.
Another.
to ask, demand, sue for, collect and receive
all and every such sum and sums of money, debts
and demands whatsoever, as are now due and
owing to me by and from (state whom) ; and in de-
fault of payment thereof to have, use and take
all lawful ways, means and proceedings, in my
name or otherwise, for the recovery thereof, by ar-
rest, attachment, or otherwise, and to compound,
compromise and agree for the same; and on pay-
ment thereof to give receipts or other sufficient
discharges for the same ; and to do all lawful acts
and things whatsoever concerning the premises,
as fully in every respect as I myself might or
could do if I were personally present ; and an
attorney or attorneys under him for the purposes
aforesaid to make, and at his pleasure to revoke ;
hereby ratifying and confirming all and whatso-
ever my said attorney or his substitutes, or either
of them, shall lawfully do or cause to be done in
and about the premises.
Another.
to ask, demand, sue for, recover and receive
all such sum and sums of money, debts, goods,
wares and other demands whatsoever, which is
or shall be due, owing, payable and belonging to
me, by any manner or means whatsoever, espe-
cially, etc. (stating what particular matters, etc., the
attorney is required to attend to)
Giving and granting unto my said attorney, by
these presents, my full, absolute and unqualified
authority and power, in and about the premises ;
to have, take and use all lawful ways and means,
in my name, for the purposes aforesaid ; and upon
the receipt of any such moneys, debts, goods,
wares or demands, to give acquittances or other
sufficient discharges therefore, under seal or
otherwise, for me and in my name.
And generally all and every other act and acts,
thing and things in law whatsoever, necessary
to be done in and about the premises, for me and
in my name to do, execute and perform as fully,
generally and amply, to all intents and purposes,
as I myself might or could do if personally pres-
ent ; and to make and constitute, and again at
pleasure to revoke, one or more attorneys under
him for the purposes aforesaid.
Hereby ratifying, allowing and holding firm
and effectual all and whatsoever my said attor-
ney or his substitutes, or either or any of them,
shall lawfully do, in and about the premises, by
virtue hereof.
To COLLECT DEBTS FOR CORPORATIONS GENERALLY.
to demand, recover and receive all and sin-
gular the sums of money now or which may her*
AGENCY.
after be or become due, payable and coining to us,
or to our successors, by virtue of any accounts,
agreements, bills of exchange, bonds, contracts,
promissory notes, or other engagements in deed
or in law, from any person or persons, corpora-
tion or corporations whatsoever.
Hereby giving and granting our said attorneys,
or any two of them, whereof the said A. A. shall
be one, full authority and power to institute and
pursue unto final judgment and execution any
processes or proceedings whatsoever which our
said attorneys, or any two of them, whereof said
A. A. shall be one, shall deem expedient, and in
uch processes or proceedings for us to appear,
and us to represent, before any court or courts
having jurisdiction, and therein to plead for us
and enter into all stipulations or other requisites
requisite and necessary to the same ; and at their
discretion, or at the discretion of any two of
them, whereof said A. A. shall be one, to submit
to arbitration, or any compromise whatsoever,
any matter in dispute ; and as our deeds, and in
our stead, to make, seal and deliver all necessary
receipts, acquittances and releases. Hereby rat-
ifying and confirming whatsoever our said attor-
neys, or any two of them, whereof said A. A.
shall be one, may lawfully do in the premises by
virtue hereof.
To COLLECT DIVIDEND
to receive from the bank (or company,
or corporation) the dividends now due me on all
stock standing in my name on their books, and to
receipt for the same ; hereby ratifying and con-
firming, etc.
To COLLECT RENTS.
to ask, demand, distrain for, collect and re-
ceive all such rents and arrears of rent as now
are or may or shall hereafter grow due or owing
to me from C. D. or E. F.,of ,or any or either
of them (or from any person or persons), as tenants
of occupants of any lands, tenements or heredi-
taments, belonging to or claimed by me, in the
city (or town or county) of , in the State of ,
01 which may be due from, or payable by, any
olher person or persons whomsoever, as tenants,
occupants, or lesses or assignees, of any term or
terms of such lands, tenements or hereditaments,
01 any of them, or any part thereof, and upon re-
ceipt of the same to give proper acquittances and
sufficient discharge thereof.
To CONFIRM ACTS OF ATTORNEY.
And whereas, said A. Y. has heretofore, as my
attorney, exercised the powers aforesaid, or some
of them, and has, as my attorney, executed divers
agreements, bonds, bills of exchange, checks,
contracts, conveyances, deeds, drafts, promissory
notes, and other instruments and writings, and
many other things in and about the premises, I
do therefore accept, acquiesce in, confirm and
ratify and make valid all and every matter and
tiling by said A. Y. as my attorney done and per-
formed, at any and all times prior to the execu-
tion of these presents.
To DELIVER POSSESSION OP LANDS.
to enter into all those lands, tenements and
hereditaments, situate in , in the State of
, and after such entry to deliver possession
thereof unto C. D. or his legal representatives, or
either of them, to his or their use, according to
the form, tenor and effect of a certain deed bear-
ing date the day of , by me to said C. D.
executed.
And generally to do all and every act and thing
whatsoever necessary to making quiet entry and
giving peaceable possession as aforesaid.
Hereby ratifying, etc.
To DEMAND RENT.
to ask, demand and receive of C. D. the
sum of dollars, for one month's (or year's)
rent of (describe the premises), due me on the
day of last, and on receipt thereof to give a
sufficient discharge for the same ; and on default
of payment thereof, for me, and in my name, to
enter into and take possession of said premises,
and detain and keep the same for my use.
Another.
to demand and receive of and from C. D.,
f , on the day of next, the sum of
dollars, for one month's (quarter's, or year's,
etc.) rent for the following described premises,
situated in , in county, in the State of
(describing them), due by the terms of a lease
bearing date the day of , whereby said
premises were let to said C. D. by said A. B. for
a term of .
And in default of payment of said sum I give
my said attorney full authority and power to en-
ter into and take possession of said premises, to
the intent that said lease, according to provi-
sions therein contained, shall become void : and
further to do and perform all things necessary
and requisite to be done in and about the execu-
tion of these presents, according to the true in-
tent and meaning thereof.
To DRAW, INDORSE, AND NEGOTIATE BILLS OF
EXCHANGE, ETC.
to draw and subscribe bills of exchange,
singly and in sets (as circumstances require) upon
(here insert the names of drawees or debtors), on ac-
count of moneys due from them to me for the
sales of my goods (wares and merchandise), lately
(sold by them tor me, or) purchased by them of me,
and in my name and behalf to negotiate and sell
the same in the market for the largest sum which
my said attorney can obtain therefor, and the
proceeds thereof to receive and retain for my
use.
And I do further authorize and empower my
said attorney, in my name and behalf, to indorse
any bill or bills of exchange which shall be drawn
payable to me, and so remitted to me in my ab-
sence, and the same to negotiate and sell to my
best advantage, and to receive and retain the
proceeds of the same to my use.
Hereby granting my said attorney power to
substitute one or more attorneys under him in
the premises, and the same at pleasure to re-
voke.
To ENTER LANDS.
to enter into all lands, tenements, and here-
ditaments, situated in , and , and ,
which at any time heretofore was, or did, or does
now appertain thereto, or did in his lifetime be-
long unto D. D. , of , deceased, grandfather of
me, the said A. D., in whose several or other
tenures of occupation the same, or any of them
now are, or heretofore have been, for me and in
my name or right to claim, challenge, and de-
mand as my lawful inheritance.
And further, for me and in my name, and as my
right, to claim and demand all and every such
lands, tenements, and hereditaments, remain-
ders and reversions, lawfully or rightfully apper-
taining and belonging unto me through my
brother, B. D., of , deceased.
And lastly, for me, in my name, in my right,
and to my use, to make all and every such entry
and entries, claim and claims, in or upon all and
every, or any of the premises, as to my said
attorney shall, at any time or times, seem con-
venient and expedient for the reducing, re-vest-
ing, and settling unto me all such estates, posses-
sions, reversions, and remainders as to me did or
does lawfully belong.
Giving and granting, etc.
To FIT OUT, FURNISH, AND LET VESSEL
to order E. F. to fit out the vessel, V. L.,
of , of tons burthen, whereof we are part
owners, and M. R. its master, for such a voyage
to sea as our said attorney shall see fit ; and we
do hereby agree to pay, or allow out of the
moneys in the hands of said M. R. our propor-
tions of the charges of said vessel's outfit, ac-
cording to our proportionate interests therein.
And we do hereby empower and order said M.
R. to let said ship to freight for such a voyage as
he shall deem proper and for our advantage and
benefit.
And we do further agree with said M. R., each
for himself only, and not jointly, according to our
respective proportions in said vessel, shall and
will indemnify said M. R. for all seamen's wages,
and all actions, costs, and damages by reason
thereof, that shall or may grow due, or be in-
curred on account of said vessel for her intended
voyage out and borne.
AGENCV.
To FILL UP BLANKS IN A WRITING, ETC.
&a soon as conveniently may be (or on or
before the day of ), to fill up blanks in (state
tht kind or character of the instrument) as follows :
(specifying particularly the lines or parts to be filled
up and, if possible, the exact matter to be filled in)
with the proper date when the same shall be
executed, and sign (and seal) and deliver the same
for me and in my name, to C. D. (his heirs and
assigns forever).
(If it be an instrument affecting real estate, or one
requiring acknowledgment, add the following): and
afterwards to acknowledge said conveyance (ar
other instrument, naming it) as my free act and
deed, before any officer authorized bylaw to take
acknowledgments.
And generally, for me, and in my name, and as
my act and deed, but to the use of said C. D., his
heirs and assigns, to do all and every other act,
matter, and thing which shall be necessary or
requisite to the effectual execution and acknowl-
edgment of said conveyance (or other instrument,
naming it), in all respects and as fully to all in-
tents and purposes as I myself might or could do
if personally present ; hereby ratifying and con-
firming all that my said attorney may lawfully
do in the premises by virtue hereof.
Provided, however, that these presents shall
not be construed to annul or revoke any po\vir
of attorney by me at any time heretofore given, to
any other person or persons whomsoever for any
other purposes ; and provided, further, that these
presents shall not be construed to extend or ap-
point my said attorney for any other purpose
whatsoever.
To INSURE PROPERTY, ETC.
to effect insurance on the following de-
scribed property, to wit (describing it), with the
Insurance Company, of , on such terms
as my said attorney shall deem necessary o,
proper, and for this purpose to sign any applica-
tion for the same, any representation of condition
or value of said property, any articles of agree-
ment, any notes, and other papers necessary for
that purpose, and to cancel and surrender any
policy which he may obtain, and upon such can-
celling, or surrender, or expiration thereof, to re-
ceive any dividend, return premium or deposit,
that may be due, and give receipts or discharges
for ths same.
To LEASE LANDS.
to lease by writing all the following de-
scribed real estate situated in , in the State
of , or any part thereof which my said at-
torney shall see fit, and to such person and per-
sons, and for such term and terms (not exceeding
), and with such reservations of rents, cove-
nants, and conditions as my said attorney shall
deem expedient; and in my name to execute
(seal) and deliver said written leases to the lessee
or lessees thereof, retaining duplicates of the
same duly -witnessed.
And I hereby do and at all times hereafter shall
and will confirm and ratify all and every act and
thing which my said attorney shall do in the
premises in my name by virtue hereof.
To LEASE AND SELL, ETC.
to lease, sell, or make any other disposition
whatever of the following described premises, to
wit (describing them), and to sign (seal) and deliver
any agreement, assignment, assurance, convey-
ance, or lease to any person or persons who shall
purchase or agree to purchase said premises, or
any part thereof, and in due form of law, to
acknowledge any such instrument necessary to
the proper conveying or leasing said premises or
any part thereof.
Hereby ratifying, etc.
To RENEW LEASE AND SELL, ETC.
to renew or agree for a renewal of the lease
by which I hold the following described property,
to -vr it (describing it), for a term of .
And also to sell and convey said premises for
the unexpired term of , for cash, and there-
upon to assign the lease whereby I hold and may
hold the same.
To SURVEY AND LEASE, ETC.
to survey for, and lease by writing, to any
peron or persons, and for such term or terms
(not exceeding ), and at such rents (not less than
), payable at intervals of (not less than ),
as shall seem most convenient to my interest, and
with such covenants as my said attorney shall
deem expedient (or with the usual covenants). And
for me and in my name to execute, sign (seal),
and deliver said written leases unto the parties
to whom said premises shall be let, and counter-
parts thereof to receive.
Giving and granting to my said attorney full
authority and power in the premises to do and
execute all things in as ample a manner as I
might do if personally present.
Hereby ratifying, tc.
To MANAGE REAL PROPERTY.
to exercise the general control an super-
vision over the lands, tenements, and heredita-
ments belonging to me, and situated in
county, in the State of . To prevent, hinder,
and forbid all trespassing and waste thereon :
and at my cost and charges, and under the advice
and counsel of my attorney, A. Y., of , to sue
for, collect, compound, receive, and recover all
damages which may accrue by reason of any
trespasses or waste thereon, and for all debts,
rents, and ; moneys due, owing, or that may be
due or owing from the gains and profits which
has or may hereafter arise from or out of said
premises.
To MORTGAGE REAL PROPERTY.
to obtain for my use the sum of dollars,
at per cent, interest per annum, for a term
of , and to secure the payment of the same to
execute, sign (seal), and deliver a mortgage upon
the following described premises, to \vit (describ-
ing them), and to include in said mortgage the
usual provisions for insurance, interest, taxes,
and power of sale ; and as collateral thereto to
execute such promissory notes as may be agreed
upon by my said attorney and the mortgagee.
To MAKE PARTITION.
to make partition with the other heirs of
my late father, D. D., deceased, of his real (and
personal) estate, and upon any partition or di-
vision thereof (to accept and receive my share of the
same), and to enter upon and take possession of
any lands, tenements, and hereditaments which
may be set apart as my portion of the same, ant'
to enter into any agreement or covenant respect-
ing my portion or share (and the portions or snares
of the other heirs), as my said attorney shall deem
reasonable and to my interest ; and in my name
and for my use to demand, sue for, and take pos-
session of all and singular the property, real or
personal, and all rights, credits, and effects with-
held from me, to which I am entitled, and which
I may lawfully claim from the heirs, executors,
or administrators of my said father, or any other
person or persons whomsoever.
To PROSECUTE AND DEFEND SUITS.
to appear to, institute, prosecute, and de-
fend all causes, real, personal, or mixed, and all
and every action, suit, or proceeding, by, for, or
against me ; and in my name to plead to and pur-
sue the same to final judgment and execution,
with full power and in my name to execute all
bonds, undertakings, agreements, stipulations,
and every writing whatsoever necessary and
requisite in the premises ; with full power of
substitution and revocation.
Hereby ratifying, etc.
FOR PROXY TO VOTE, ETC.
to vote at any election of directors or other
officers of the igivr the name of the company, cor~
poratioit, etc.) at any meeting of the stockholder*
of said company (or corporation) as fully as I might
or could were I personally present.
Another.
to vote as my proxy at any election of di-
rectors or other officers of the (name of company,
corporation, etc.) according to the number of votes
I should be entitled to if I were then personally
present.
Affidavit (or affirmation) of Shares.
State of , county, ss.
I do solemnly swear (irr I do solemnly, sincerely,
AGENCY.
nd truly declare and affirm) that the shares on
which my attorney and agent in the (within, fore-
going, or above, as the case may be) proxy is author-
ized to vote, do not belong, and are not hypothe-
cated to said company (or corporation), and that
they are not hypothecated or pledged to any other
company, corporation, or person whatever; that
such shares have not been transferred to me for
the purpose of enabling me to vote thereon at
the ensuing election, and that I have not con-
tracted to sell or transfer them upon any condi-
tion, agreement, or understanding in relation to
my manner of voting at the said election (and this
1 do under the pains and penalties of perjury.)
(Signed) A. B.
Subscribed and sworn (or affirmed; to, before
me this day of , A. D. .
(Signature and title of officer.)
RATIFICATION.
See "CONFIRMATION" above, and the ending clauses
ef the various forms above and below.
Hereby ratifying and confirming all that may
be lawfully done in the premises by virtue hereof.
Another.
Hereby ratifying and confirming all lawful acts
done by my said attorney in the premises by vir-
tue hereof.
Another.
And the said A. B. does hereby ratify, allow,
and make firm in law all and whatsoever acts the
said A. Y. shall do or cause to be done in pur-
suance hereof.
Another.
Hereby ratifying and confirming all things
whatsoever lawfully done in the premises by my
said attorney or his substitutes, or either of them
by virtue hereof.
Another.
And I, the said A. B., and my heirs shall and
will at all times hereafter, ratify and confirm all
and every act, matter, and thing which the said
A. Y., in my name, shall lawfully do by virtue
iiereof, in the premises.
To RECEIVE DIVIDEND.
to receive the dividends payable on all
stock standing in my name on the books of (state
what company or corporation), and receipt therefor.
Another.
to receive from the (name of company or
corporation) the dividends now due me on all
stock standing in my name on the books of said
company, and receipt for the same.
Another.
to receive the dividends which are or shall
be payable according to law on all the stock
standing in my name in the books of the R. and
Y., Railway Company (S. and L., Steamship Line,
or Treasury of the United States, or B. and K., Bank-
ing Company, etc., etc.), with full power to make
and substitute an attorney or attorneys under
him for that purpose, and to do and perform all
things lawful and requisite in the premises ; here-
by ratifying all that my said attorney or his sub-
stitutes shall lawfully do by virtue hereof.
ASSIGNMENT OF DIVIDEND.
(Add^ to either of the above fortns when proper) and
to assign, transfer, and set over unto E. F. and
G. H. the sum of dollars of said dividend (or
stock, or of the following dividends, or stocks, to wit,
specifying them).
To RECEIVE FREIGHT, ETC.
to demand, sue for, and prosecute with
effect, and receive, for my use, and the use of C.
D., E. F., and G. H., part owners of the ship
, all such sums of money as are due from M.
R., C. H.,and N. T., etc., merchants, etc., for
freight, or otherwise for or concerning any and
all goods and merchandise, imported by said
ship in her late voyage from , by virtue of a
charter party bearing date the day of , or
otherwise, and upon receipt thereof to give suffi-
cient acquittances and releases for the same.
To RECEIVE MONEY NOT YET DUE, ETC.
to demand and receive on the day of
next, the sum of dollars for the payment
of which C. D. and E. F., of , by their obliga-
tion, bearing date the day of last, are
bound unto me, and upon payment thereof to re-
ceipt for the same and cancel said obligation.
And if the same shall not then be paid, to sue
for the sum of dollars, the penalty of said
obligation.
To RECEIVE MONEY FROM UNDERWRITERS.
to ask, demand, sue for, and recover the
several sum and sums of money which I, the
said A. B., may be entitled to recover, together
with all costs and charges incident thereto, from
certain underwriters, by whose policies of insur-
ance certain goods and merchandise, shipped by
the ship , were assured from loss and damage
by sea, by them respectively, as follows, to wit
(specifying what goods and merchandise were assured
by each underwriter separately), all of which said
goods and merchandise became wholly damaged
and lost from said ship's being forced by stress
of weather into .
And in default of payment of the same, or any
part thereof, for me and in my name to com-
mence and prosecute to final effect any actions at
law or equity against said underwriters or their
legal representatives, or whomsoever else it may
concern, for the recovery and enforcing payment
thereof; and on payment of the same, or any
part thereof, for me and in my name, to execute
suitable discharges.
And if my said attorney shall deem expedient,
to compromise or submit to arbitration the sev-
eral claims and demands which I have against
said underwriters by virtue of said policies of
insurance.
And generally, etc.
To RECEIVE POSSESSION OF REAL ESTATE.
to receive and take peaceable possession
of the following described premises, situated in
county and State of (describing them),
which was heretofore conveyed in fee, together
with all privileges and appurtenances, by C. D.
to me, by an instrument in writing bearing date
the day of , and duly executed and ac-
knowledged and recorded as required by law, in
the office of , in said county. Receiving and
taking the same of said C. D. or his agent or at-
torney thereunto lawfully authorized, according
to the true intent of said conveyance.
Another.
to take and receive of the sheriff of
county, or his deputy, peaceable and quiet pos-
session of all and singular the following described
lands, tenements and hereditaments, situated in
county, State of , which were lately be-
longing to C. D., and which said sheriff has
caused to be set off to me, by virtue of an execu-
tion to him directed, etc. Giving and granting, etc.
To RECEIVE A LEGACY.
to ask, demand and receive of and from E.
X. and T. R., executors of the last will and testa-
ment of D. D., late of , deceased, the legacy
of dollars, given and bequeathed me by said
will ; and upon receipt by, or payment to my said
attorney, to make, execute and deliver a general
release or discharge for the same ; hereby ratify-
ing, etc.
Another.
to ask, demand and receive of and from C.
D. the sum of dollars, which D. D.,late of
, deceased, by her last will and testament,
bearing testimony the day of , did give
and bequeath unto me, upon my executing and
delivering a general release unto the executors
of said D. D., making E. X., of , his executor,
said will having been duly proved, and having
executed and delivered said release to my said
attorney, to be by him delivered to said E. X.
upon payment of said sum ; giving and granting
unto my said attorney full power, etc.
To RECEIVE PRINCIPAL AND INTEREST, ETC.
to ask, demand and receive all sums of
money loaned to the following named persons,
with the interest accrued and to accrue, to wit
(give name of borrower, amount 'loaned, time of loan,
rate nf interest and interest accrued, etc).
Also to ask, demand and receive all dividends
which shall be payable, according to law, on the
AGENCY.
following described stock, standing in my name,
to wit (describing it).
To RECEIVE SHARE OF ESTATE, ETC.
to ask, demand and receive of and from A.
D. and M. R.,who were duly appointed adminis-
trators of the estate and effects of D. D., deceased,
(my portion and share of) certain personal property
belonging to said deceased in his lifetime, and
which is to be divided among (us) the heirs of
said D. D., according to the provisions of the
statute relative to the distribution of the estates
of intestates. And upon receipt thereof by or
payment thereof to my (or our) said attorney, to
make, execute and deliver a good and sufficient
receipt, release and discharge for the same ;
hereby ratifying, etc.
To RECEIVE WAGES.
to ask, demand, receive and receipt for all
ums of money as are now due, or may at any
time hereafter become due and owing to me for
wages as a (state what ).
And upon non-payment, etc.
Another.
to ask, demand, receive and receipt for, of
and from all and every person and persons what-
soever, all sums of money which now are and
shall at any time hereafter become due and owing
to me for wages from (state whom), and also all
other moneys now due, or to become due and
owing to me by any ways, means or persons
whatever.
And upon non-payment of the same or any
part thereof, I hereby authorize and empower
my said attorney to enforce the same by any ac-
tion or legal proceeding, in my name or other-
wise, necessary or requisite for the recovery of
the same.
To SELL PERSONAL PROPERTY, ETC.
to sell, transfer and deliver unto (state whom)
or any other person or persons (here describe the
property or goods}.
Giving and granting my said attorney full
power of substitution and revocation.
In witness, etc.
To SELL REAL ESTATE.
to sell and convey the following described
real estate, situated in county, and State of
, for the sum of dollars, and upon the re-
ceipt of said sum to execute and deliver to the
purchasar thereof, or his attorney, a good and
sufficient warranty deed for the same.
To SELL REAL ESTATE, ETC.
A power to sell and convey is not a power to mort-
gage. And a power to do the one will not authorize a
doing of the other, nor of anything save the precise act
author! zed.
to grant, bargain, sell and convey the
following described premises, situated in
county, and State of , to wit I describing them},
or any part thereof, for such price, and on such
terms as he shall deem proper, and in my name
to make, execute, with or without covenants and
warranty, acknowledge and deliver good and
sufficient conveyances for the same.
The following may be added when proper :
And until the sale thereof, to lease said real es-
tate for the best rents that can be procured for
the same, and to ask, demand, distrain for, col-
lect, recover and receive all sums of money which
shall become due and owing to me, by means of
such bargain and sale or lease.
Giving and granting unto my said attorney, etc.
To SELL REAL ESTATE. ETC.
to grant, bargain and sell all that part and
parcel of real estate, situated in county, and
State of , and described as follows, to wit
(describing it], with the appurtenances, and all
my estate, right, title and interest therein, unto
such person or persons, and for such sum or sums
of money (or for such consideration or considerations),
for cash, or upon such credit or credits as my said
attorney shall deem most for my advantage and
profit ; and upon such sale or sales to make, seal,
acknowledge and deliver, in due form of law,
a-3 Hill, 361 ; 3 Barb. 128 ; i Sandf. 17 ; 4 Comst. o ;
TWend. 446.
suitable and proper deeds, general or special, of
warranty, quit claim, or otherwise, as my said
attorney shall deem expedient, and for me and
in my name to accept and receive all and every
the sum and sums of money (or consideration or
considerations), whatsoever, which shall be coming
to me on account of said sale or sales, and upon
receipt thereof, in my name and stead, to make,
seal and deliver suitable acquittance or acquit-
tances.
And generally giving my said attorney full
authority and power touching the premises, to
do, execute and perform in all things as amply
and fully as I might if personally present.
To SELL STOCK, ETC.
to sell, assign and transfer unto E. F.
shares of stock in the capital or joint stock
of the .
And I hereby empower my said attorney to
perform all necessary acts for said sale, assign-
ment and transfer.
In witness, etc. (Signed) A. B.
To SELL STOCK, ETC.
to sell and transfer unto any persons whom-
soever, and for such price as my said attorney
shall think fit, all and any of the following stocks
(describing- them).
And also for me, and in my name, to make and
pass all necessary acts of assignment, and to
give and receive receipts and releases for the
consideratio n money arising from the sale thereof.
And also for me, and in my name, to give re-
ceipts for all interest and dividends now due or
that shall hereafter become due on said capital
stock, until the sale and transfer thereof.
In witness, etc.
To SELL VESSEL, ETC.
to sell, convey and transfer all of our sev-
eral interests in the ship S., whereof A. B. is
five-eighths, C. D. two-eighths, and E. F. one-
eighth owners, together with her tackle, boats,
apparel and furniture, to any person or persons,
and for such sum and sums of money as he may
deem proper, to receive and receipt for the same,
and to execute and deliver the purchaser or pur-
chasers thereof good and sufficient bills of sale or
other conveyances thereof.
Giving and granting, etc.
To SIGN WRITINGS, ETC.
to make, execute, sign, seal and deliver all
agreements, bills, bonds, contracts, conveyances,
specialties or other instruments, which shall ba
necessary to the proper (conducting of the following
business, or completion of the following business, or
other matter, specifying it ).
And to do and perform all and every act and
deed of whatsoever name or nature, legally ap-
pertaining to the same.
To SUBSCRIBE, ETC.
to subscribe for (state what ).
To SUBSTITUTE.
To substitute one or more persons under him
with like power.
Confirmation General Form.
Whereas, misrepresentation has arisen as to
the authority and power of C. D., of , in the
county of , and State of , in my name and
behalf to execute a certain agreement between
E. F. of the one part and myself of the other
part; and whereas, said agreement has been ex-
ecuted by the said C. D., as my lawful attorney, _
and the said E. F. respectively :
Now, therefore, these presents witness that I,
A. B., of , in the county ef , and State of
, have examined and read said articles ot
agreement, and that I do hereby ratify and con-
firm the same, and do declare that the said C. D.,
who did, as my lawful attorney, execute the
same, did so execute the same by my authority
and with my consent; and I do now fully ratify
and confirm all his acts and doings, in and about
the same, in as full a manner as if I, myself, had
executed the same.
In witness whereof, I have hereunto set, etc.
(If the fower be to convey real estate, then this clause
should be the same as in conveyances of real prfjerty,
which see).
8o
AGENCY.
Custom House Power General Form.
to receive and enter at the custom house
of the district of any goods, wares or mer-
chandise imported by me, or which may here-
after arrive, consigned to me ; to sign in my name
and seal and deliver, as my act and deed, any
bond or bonds which may be required by the col-
lector of said district, for securing the duties on
any such goods, wares or merchandise.
Also to sign my name to, seal and deliver for
me and as my act and deed, any bond or bonds
requisite for obtaining the debenture on any
goods, wares or merchandise when exported.
And generally to transact all business at said
custom house, in which I am or may hereafter be
interested or concerned, as fully as I could if per-
sonally present.
And I do hereby declare that all bonds signed
and executed by my said attorney shall be as
obligatory on me as those signed, sealed and de-
livered by myself.
This power shall remain in full force until re-
voked by written notice given to said collector.
In witness, etc.
Custom House Power Special Form.
to receive and enter at the custom house
of the district of , any goods, wares or mer-
chandise, imported by or consigned to me, in the
(naming the ^>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.<i A horse is
sound when he is free from hereditary disease,
is in possession of natural and constitutional
health, and has a physical perfection consistent
with his natural formation. 8
VICE is unsoundness ; a horse is free from
vice when he has no bad habits that make him
dangerous, or are injurious to his health, or in
any way diminishes his natural usefulness. 1
WARRANTY is distinct from the contract of
sale ; and unless it is made a part of the con-
tract of sale (as, having agreed as to the terms
of the sale, the buyer says I will purchase of
you if you will warrant the article so and so,
etc.), there is no warranty founded on the sale."
Warranty \6 a distinct contract, and must be
supported by a consideration ; in the above
example, the consideration is the purchase.
If the warranty is made after the sale there
must be a new and distinct consideration/
See WARRANTY.
Hunting, or the chase, is the act of acquiring
possession of animals, wild by nature, by force,
cunning, or address. The act of pursuing
wild animals for the purpose of catching or
killing them. It is practised for food, exercise,
diversion, or for the destruction of noxious
animals. The hunter acquires a right to such
animals by possessing them, and they thereby
become his property. 1 " But no man has a right
to enter the lands of another for the purpose
of hunting without his consent. 1
Injuries to animals of a domestic nature are
the subject of an action at law for the damage
sustained, and where it amounts to cruelty, in
many States, to a criminal prosecution. See
CRIMINAL LAW, PLEADING, PRACTICE.
Mischievous animals render their owners
liable when known to them to be so, and they
are responsible when they permit them to go at
large, for the damage they may do.r Any per-
son may justify the killing of ferocious animals. 1
Pounds are enclosures erected by public
authority, in which cattle and other beasts are
confined and detained when taken in trespass-
ing, estray, or going at large in violation of
law. a
Property in. In tame or domestic animals,
such as horses, cattle, sheep, poultry and the
113. q-See i M. & R. 137. r-4 Campb. 281. 8-9 M.
&W. 668; 2M.&R. 157; 4 Campb. 281; i Stark. 127;
2 M. & R. 113 ; 2 Esp. 673 ; 10 Ala. 255 ; i Foster N.
H. 116; sHurring. 233 ; 28 L J. Q.B. 9; 23 Ark. 730; 21
Id. 349 ; 19 Md. 50 ; 7 Car. & P. 85 ; R & M. 136 ; 21
Ga. 69. t-2 M. & Rob. 210. 11-37 Penn. St. 147; 100
Mass. 432; 41 Vt. 631. v-t4Wis. 258; 5 Harring. 233 ;
8 Bingh. 48 S. C. ; see i M. & S. 74 ; 2 Bingh. 183, S.
C. ; 9 Monr. 356 ; 4 Gray 457 ; 5 Vt. 28 ; 9 Id. 285 ; n
Pick. 97. W-4 Toull. . 7. x-i4 East. 249; Poth.
Propriete Pt. i. Ch. 2, a. 2. y-2 Esp. 482; i Holt. 617.
2 Str. 1264; Ld. Raym. no; B. N. P. 77; i B. & A.
620; 2 C. M. & R. 496; 5 C. & P. i. z-9 Johns. 233,
10 Id. 365 ; 13 Id. 312. a-4 Pick. 258 ; 5 Id. 514 ; 9 Id. 14.
ANIMALS APPRENTICESHIP.
like, a man may have an absolute property,
because they continue perpetually in his posses-
sion and occupation, and will not stray from
his house and person unless by accident or
fraudulent enticement, in either of which cases
the owner does not lose his property. b But in
animals wild by nature a man can have no
absolute property; they belong to him only
while they continue in his possession, for if at
any time they regain their natural liberty, his
property instantly ceases, unless they have the
intenlion of returning, which is only to be
known by their habit.
Animals, wild by nature, so long as they are
reclaimed by the art and power of man, are
the subject of a qualified property ; but when
they are abandoned, or escape, and return to
their natural liberty and ferocity, without the
intention of returning, the property in them
ceases. While this qualified property con-
tinues, it is as much under the protection of the
law as any other property, and every invasion
of it is redressed in the same manner. 4 If an
animal belongs to ihe class of lame animals, as
for inslance, lo the class of horses, sheep, or
cattle, he is then clearly a subject of absolute
property; but if he belongs to the class of
animals which are wild by nature, and owe all
their temporary docility to t.he discipline of
man, such as deer, fish, and the several kind
of fowl, then the animal is the subject of
qualified property, and which continues so
long as the lameness and domeslication remain.
Whether the animal be wild or lame is referred
to our knowledge of his habits, derived from
fact and actual experience.
Pursuit alone gives no property in animals
wild by nature.* The animal must have been
brought within the power of the pursuer before
property in the animal vests ; for mere pursuit
without bringing the animal within the power
of the parly is not sufficient. The possession
must be so far established by the aid of nets,
snares, or other means, that the animal cannot
escape. An action will not lie against a per-
son for killing and taking an animal which has
been pursued by another, and was then actually
in view of the person who had originally found,
started, and chased it, e for the mere pursuit and
being in view of the animal did not create a
properly, because no possession had been ac-
quired/ And properly in a wounded wild beast
does not attach until the beast is actually taken .8
Sales of domestic animals are governed by
the general law of sale of personal property,
and whether they are in the owner's possession,
or under his immediate control, at the time of
sale, is not a matter of much moment. But to
make a valid sale of animals of a wild nature,
fo-2 Bl Comm. 300; 2 Mod. 319, and next note, c-a
Bl. Comm. 396; 3 Binn. 546: Bro. Ab. Pro. 37; Com.
Dig. Bi. 4: 7 Co. 17 b; i Ch. Pr. 87; Just. 2, i, 15; 3
Caines, 175; Coop. Just. 457-8; 7 Johns. 16; Bro. Ab.
Dit. l-7 Co. 16-18. e-3 Caines, 175. f-2o Johns. 75.
g-Ir.st. 2, i, 13. h-Dig. i6, i, 5, 2 ; Inst.2,i,9. 1-Inst.
2, i, 19. J-i Bouv. Inst. n. 167, 502. It-j Bl. Comm.
426, 2 Kent Comm. 211; 3 Rawle, 307; Chitty App.,
4 T. R. 735; Bouv. Inst. Index. 1-Pardessus Droit
the vender must have a qualified property in
them, produced by reclaiming, taming, or con-
fining them, as deer in his park, doves in his
dove-cot, or fish in his private pond, etc.
Young. It is a rule that the young of domes-
tic or tame animals belong to the owner of the
dam or mother, according to the maxim : h " The
offspring follow the condition of the mother."'
This is the law in case of slaves and animals.J
Aniino. See INTENTION.
Animus Furandi. See STEALING.
Annexation. See PERSONAL PROPERTY ; REAL
PROPERTY.
Anno Domini. See PLEADING; TIME; YEAR.
Annual Assay. See MONEY.
Annuity. See CONTRACTS ; PAYMENT.
Answer. See PLEADING.
Ante-Nuptial. See MARRIAGE.
Antenate. See ASCENDENTS; PERSONAL R i. ...-.
TIONS.
Anticipation. See ACTS.
Apartment. See HOUSE.
Apoplexy. See MEDICAL LAW.
Apparent. See PRACTICE.
Appeal. See PRACTICE.
Appearance. See PRACTICE.
Appointment. See AGENCY ; AUTHORITY.
Apportionment. See CONTRACTS; INCUM-
BRANCES; REPRESENTATIVES.
Appraisement. See PRACTICE.
Apprehension. See PRACTICE.
APPRENTICESHIP. See CONTRACTS ; PER-
SONAL RELATIONS.
AN APPRENTICE is a person bound in due
form of law to a master, to learn from him his
art, irade, or business, and to serve him during
the time of his apprenticeship.*
Apprenticeship is a contract by which one
person who understands some art, trade, pro-
fession, or business, and called the master,
undertakes to teach the same to another, who
is a minor, and called the apprentice, who, on
his part, is bound to serve the master during a
definite period of time, in such art, trade, pro-
fession, or business. It is the term for which
an apprentice is bound to serve his master. 1
Assignment. Apprenticeship is a relation
which cannot, in the absence of a statute al-
lowing it, be assigned." 1 Though if under
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."
Binding out. By the common law an in-
fant could bind himself apprentice by indenture
because it is for his benefit. But on account
of liability to abuse, this right has beeu regu-
lated by stalute, and is not binding upon the
infant unless entered into with ihe consent of
the parent or guardian ; the father, if both
parents are alive ;P ihe parent and guardian
where he has bolh, with the infant's consent,
which must be made a part of the contract ; *
or if the infant is a pauper, then by the authori-
ties and without his consent.' The contract
Comm. n. 34. m-s Binn. 423 ; 4 T. R. 373 : Dougl.
70; 3 Keb. 519; 12 Mod. 554; 18 Ala. N. S ; 99 Busb.
419 n-Dougl. 70- 4 T. R. 373 : 19 Johns. 113; 5 Cow.
363 ; 2 Bail. 93. 0-5 M. & S. 257 : 6 T. R. 652 ; t Dowl.
& R. 339. p-8 W. & S. 339. q-2 Kent Comm 261 : 8
Johns. 328; 14 Id. 374; 2 Penn. 97'7 ; 4 Watts. 80; 43
Me. 458; 12 N. H. 437; 4 Leigh. 493. r-sS. & R. 158;
32 Me. 299; 3 Jones, 21 ; 15 B. Mon. 499; 30 N. H.
104 ; 5 Gratt. 285.
APPRENTICESHIP.
need not specify the particular trade to be
taught, but is sufficient if it be a contract to
teach such manual occupation, or branch of
business as shall be found best suited to the
genius or capacity of the apprentice.'
A Contract of apprenticeship is generally by
deed or indenture,' to which the infant, as well
as the parent or guardian, must be a party, or
the infant will not be bound." It continues,
generally, if the apprentice be a male, during
minority only ; if a female, until she arrives
at the age of eighteen."
To be binding on the apprentice, the contract
must be made as prescribed by statute." An
indenture not entered into according to law is
utterly void, as concerns the apprentice therein
bound ; but it can only be avoided by the ap-
prentice himself; 1 and if the apprentice do
elect to avoid it, he will not be allowed to re-
cover wages for his services, the relation being
sufficient to rebut any promise to pay which
might otherwise be implied.? The master will
be bound by his covenants, though additional
to those required by statute. 1
The age of every apprentice must be inserted
in the indenture ; but the age as stated in the
indenture is only prima facie evidence, and
may be contradicted by proof of the true age. a
In a common indenture of apprenticeship
the father is bound for the performance of the
covenants by the son. b But in an action for
non-performance or desertion by the son, he
may answer that the master has abandoned the
trade which the son was apprenticed to learn,
or that he has driven the son away by cruel
treatment.
Duties, etc. An apprentice is bound to
obey his master in all his lawful commands,
take care of his property, and promote his in-
terest ; endeavor to learn his trade or business,
and perform all the covenants of his indenture,
not contrary to law. He must not leave his
master's service during the term of the appren-
ticeship. 4 The apprentice is entitled to pay-
ment for extraordinary services, when promised
by the master, and even when no express
promise has been made, under peculiar circum-
stances/
The duties of the master are to instruct the
apprentice, by teaching him, in good faith, the
knowledge of the art which he has undertaken
to teach him, though he will be excused for
not making a good workman if the apprentice
is incapable of learning the trade, the burden
of proving which is on the master.* He ought
to watch over the conduct of the apprentice,
S-9 Barb. 309 ; i Sandf. 672. t-i Salk. 68 ; 4 M. & S.
283 ; loS. & R. 416 : i Vt. 69 ; 18 Conn. 337 ; see 2 Kent
Comm. 264; i Harrison Dig. 206-227. u-8 East. 25;
3 B. & Aid. 584; 8 Johns. 328; 2 Yerg. 546; 4 Leigh.
493; 4 Blackf. 437; 12 N. H. 438; see also 18 Conn.
337 ! '3 Barb. 286 ; 10 S. & R. 416 ; i Mass. 172 ; i Vt.
69 : i Ashm. 267 ; i Mason C. C. 78. v-2 Kent Comm.
264; 5 T. R. 715. w-5 Cush. 417; 5 Pick. 250. x-g
Barb. 300 ; 8 Johns. 328 : 5 Strobh. 104. y-i2 Barb.
473: 2 Id. 208; but see 13 Met. (Mass.) 80. z-io
Humph. (Tenn.) 179. a-i E. D. Smith. 408: i Sandf.
TII. b-Dougl. 500: 3 B. & Aid. 59. c-4 Eng. L &
Eq. 412 ; 4 Miss. 480; 2 Pick. 357. d-6 Johns. 274; 2
Pick. 357. e-i Am. L. Jour. 308; i Whirl. 113. f-a
giving him good advice, and showing him a
good example, and fulfilling toward him the
duties of a father, as in his character of master
he stands in the place of the parent. He is
also required to fill all the covenants he has
entered into by the indenture. He must not
abuse his authority, either by bad treatment, or
by employing his apprentice in menial em-
ployments, wholly unconnected with the busi-
ness he is to learn, or in any service which is
immoral or contrary to law ; h but may correct
him with moderation for negligence and mis-
behavior. 1 He cannot dismiss his apprentice
but by consent of all the parties to the inden-
ture.J or with the sanction of the court approv-
ing the indenture, k even though the apprentice
should steal his master's property, or by reason
of incurable illness become incapable of ser-
vice the covenants of the master and appren-
tice being independent. 1 He cannot remove,
the apprentice out of the State, unless such re
moval is provided for in the contract, or maj
be implied from hs nature ; and if he do so
remove him, the contract ceases to be obli
gatory. m
Employment and Enticing Away, etc.
When an apprentice is employed by a third
person without the knowledge or consent of
the master, the master is entitled to all his
earnings, whether the person who employed
him did or did not know that he was an ap-
prentice; but in an action for harboring ot
enticing away an apprentice, a knowledge of
the apprenticeship by the defendant is an in-
dispensable requisite to recovery in such an
action.
The plaintiff should prove the apprenticeship
by the indenture, which should be produced
and proved in the usual way. It should be
proved that the defendant knew of the appren-
ticeship at the time of his enticing away or
harboring the apprentice,? but it is sufficient to
show that the apprentice was enticed away or
harbored by the defendant. The damage mvst
be proved.i The value of the services lost
should be shown. The measure of damages
is not to be ascertained at the actual loss the
plaintiff sustained at the time, but for the in-
jury done by causing the apprentice to leave
the plaintiff's employment. 11
The defendant should be prepared to dis-
prove the plaintiff's case ; he cannot, however,
avail himself of any objection to the indenture
of apprenticeship." He should reduce the
damages as far as he can.
Termination, etc. Upon the death of the
Cranch, 240, 270; 3 C. Rob. Adm. 237; but see i
Whart. 113. g-2 Dana, 131 ; 5 Met. (Mass.) 37; i
Dev. & Bat. 402. li- 4 Clark & F. Ho. Lds. 234. 1-
Ashm. 267. j-i S. & R. 330; 12 Pick, no; t Barr.
766; i Carr & K. 622. It-i Mass. 24; 2 Pick. 451; 8
Conn. 14; i Bail. 209. 1-2 Pick. 451 ; 2 Dowl. & R.
465 ; i Barn. & C. 460. 111-6 Binn. 202 ; 6 S. & R. 526;
2 Pick. 357; 13 Met. 80. n-6 Johns. 274; 3 N. H. 274;
7 Me. 457; 2 Aik. 243 ; i E. D. Smith, 408 ; t Sandf.
711. 0-2 Harr. & G. 182; i Wend. 376; i GiJm. (Va.)
46: 5 Ired. 216. p-Peake R 55; Peake E. v. 334;
Willes, 582. q-s East. 39 ; Burr. 1352. r-4 Moody,
12. 8-2 H. El. 511; 7 T. R. 310. i, 4, i; Anstr
APPRENTICESHIP.
master, the apprenticeship, being a personal
trust, is dissolved.' Upon the death of one of
two masters the indenture survives to and
against the survivor. Upon the removal of the
master from the State he may be released from
the indenture if he has done justice by his
apprentice. So, also, upon quitting his trade
or business. See GENERAL STATUTES.
APPRENTICESHIP FORMS.
Apprenticeship Agreement ( or Inden-
ture) General Form.
This agreement (or indenture) witnesseth :
That A. A., now aged years, and with the
onsent of P. A., his (father, or mother in case the
father be not living )does by these presents appren-
tice himself unto M. M., of , to learn the artfor
business, or profession, or trade) of (state what ) from
the date of these presents unto the day
of .
That he will perform all the duties required by
law of him, and otherwise conduct and demean
himself as a conscientious, faithful and industri-
ous apprentice ought.
That in consideration thereof said M. M. does
hereby covenant, promise and agree to use the
utmost of his endeavors to have said apprentice
taught the art (or business, etc.) aforesaid, to
read, write, elementary rules of arithmetic, and
(state what further, or say months' schooling
per year during said term), and in the meantime
provide said apprentice with all necessaries, in-
cluding food, lodging, clothing, laundry and med-
ical attendance, and at the expiration of said term
to give him dollars, clothes, and .
In witness whereof, said parties have hereunto
subscribed their names, this day of .
A. A., A. P.,M. M.
Apprenticeship Agreement (or Inden-
ture) General Form.
This agreement (or indenture) witnesseth :
That P. A., of , does by these presents bind
out his (or her) son, A. A., and that said A. A.
does hereby bind himself out as an apprentice to
M. M., of , to learn ths art (business, profession,
*r trade) of (state what ).
That said A. A. is, at the date hereof, aged
years.
That said A. A. shall dwell and serve said M.
M. as such apprentice, from the date hereof until
the day of .
That during all said term said apprentice shall
faithfully serve his said master, keep his secrets,
and everywhere and at all times readily obey his
lawful commands. He shall do no damage to
his said master, nor wilfully suffer any to be done
by others ; and should any to his knowledge be
intended he shall give said master reasonable no-
tice thereof; he shall not haunt or frequent tav-
erns, bawdy or tippling houses, saloons or gaming
places, and shall not absent himself from the
service of his said master, but in all things and
at all times shall demean and conduct himself as
a good and faithful apprentice ought.
That said M. M., in consideration thereof, does
hereby covenant, promise, and agree, to instruct
and teach said apprentice, or cause him to be in-
structed and taught, the art (business, profession, or
trade) aforesaid, to the best of his endeavors and
means ; to instruct and teach said apprentice, or
cause him to be instructed and taught to read,
write and cipher as far as the rule of three, if
aid apprentice be capable of learning the same ;
to find and provide said apprentice with good
and sufficient food, clothing, lodging, and other
necessaries during said term ; and at the expira-
tion thereof to give him dollars and
clothing.
In witness, etc.
(Signed ) P. A., A. A., M. M.
Apprenticeship Agreement (or Inden-
ture) General Form.
This agreement, made this day of , A.
D. , between A. A., now aged years, and
-i Salic. 66 ; Stra. 284 ; i Day. 30.
P. A., his father, of county, in the State of
, and M. M., of county, and State of ,
witnesseth :
That A. A., of (his or her) own free will, does
hereby bind (himself or herself) to serve M. M., as
apprentice (or clerk) in the trade of a blacksmith
(or other trade, profession, or employment), and to
learn said trade (or profession, etc.) until (he or she
is of the age of years, which will be on the)
day of , A. D. .
That during all which time said apprentice shall
serve said master faithfully, honestly and indus-
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 he (or she) 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
employ 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 he shall cause said apprentice to be taught
(state -what, as) to read and write, and the elemen-
tary rules of arithmetic, the compound rules and
the rule of three, and at the expiration of (his or
her) time of service give (him or her).
(If money is paid with the apprentice insert here),
and the said M. M. acknowledges receipt of
dollars with the said A. A., from (his father or
mother, P. A.), as a compensation for his instruc-
tion, 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) A. A.
(Signature of Master.) M. M.
(Signature of Parent or Guardian.) P. A.
Apprenticeship Indenture or Agree-
mentGeneral Form.
This indenture (or agreement), made this day
of , between P. A., of , father, and his son
A. A., aged years, of the one part, and M.
M., of (state occupation), of the other part,
witnesseth :
That said A. A., with the consent of his father,
P. A., does by these presents bind himself out as
an apprentice to said M. M. , to be taught and exer-
cise and employ himself in the (business, or occu-
pation, or profession, or science, or trade, as the case
maybe) of (state what), in which said M. M. is now
engaged, and to live with and serve as an appren-
tice, from the date hereof until the day of
, (or fora term of years from the date hereof).
That during said time said A. A. shall and will
to the best and utmost of his ability, skill and
knowledge intelligently and faithfully serve, and-
be just and true to his said master, his secrets
and counsel keep, and everywhere and at al)
times his lawful commands obey.
That he shall do and attempt no hurt to hia
said master, in person, goods, estate or other-
wise, nor willingly suffer the same to be done by
others, but forthwith give said master notice
when he shall have any knowledge thereof.
That he shall not embezzle or waste his said
master's goods or money,. nor suffer the same to
be done.
That he shall not lend his master's goods or ef-
fects to any person or persons whomsoever, nor
APPRENTICESHIP.
95
suffer the same to be done, unless by his knowl-
edge and consent.
That he shall not traffic with, nor buy or sell,
goods of his own or others during said term,
without his said master's leave.
That he shall not play at cards, dice, nor any
unlawful games, whereby he or his master shall
suffer damage or loss.
That he shall not frequent, haunt, or visit play-
houses, theatres, taverns, saloons, or ale-houses,
except it be about his master's business there to
be done.
That he shall not at any time, by day or by
night, absent, depart, or quit the service of his
said master without his leave.
And that in all things he shall and will behave,
conduct, and demean himself to his said master
as a conscientious, faithful, good, and industrious
apprentice during said term.
That said M. M., in consideration of the prem-
ises (and the sum of dollars, the receipt of which
is hereby acknowledged) does hereby covenant,
promise, and agree :
That he will instruct and teach, or cause said
apprentice, or otherwise cause him to be well and
sufficiently instructed and taught in the (business,
or occupation, or profession, or trade) aforesaid, after
the best manner and mode of the time (or the best
oianner and way he shall be able).
That he shall and will allow and find said ap-
prentice in food, drink, washing, lodging, and
apparel, both linen and woollen, and all other
necessaries in sickness and in health, which shall
e convenient, necessary, and proper for such an
apprentice during said term.
That he shall and will (here state the extent of
education to be giiien during the term).
And that at the expiration of said term , he shall
and will give said apprentice over and above the
clothing he shall then possess the following ar-
ticles of apparel (stating- them item by item, as coat,
vest, pants, shoes, stockings, underwear, linen, hat, etc.)
fit and suitable for such an apprentice.
And for the true performance of all and singu-
lar the agreements and covenants aforesaid, the
said parties bind themselves each to the other
firmly by these presents.
In witness whereof, said parties have (inter-
changeably) set their hands (and seals) hereto this
day of , A. D. .
(Witnesses) (Signed) A. A., P. A., M. M.
Consent of Father or Mother Indorsed.
I hereby consent to the binding of my son (or
daughter), A. A., in the manner and for the pur-
poses expressed in the within indenture (or agree-
ment). P. P.
Apprenticeship Agreement (or Inden-
ture) Guardian Consenting 1 .
This agreement (or indenture), made the day
of , witnesseth :
That A. A., of , aged years, with the
consent of G. N., his duly appointed guardian
(herein indorsed), his father and mother being dead
(or his father being dead and his mother refusing her
consent), does by these presents bind_ himself unto
M. M., of , as an apprentice in the art (or
business, or occupation, or profession, or trade) of
(state what}.
That, etc. (as in the above forms).
Apprenticeship Agreement (or Inden-
ture) Magistrates or Overseers of
Poor, etc., Consenting.
This indenture (or agreement), made this day
of , witnesseth :
That A. A. , of , with the consent of , and
.justices of the peace, of said (or overseers
of the poor of said , or J. J., judge of ), here-
on indorsed, does by these presents bind himself
out to M. M., etc. (as in the above forms).
Apprenticeship Agreement (or Inden-
tnre) Parent, Guardian, Trustees,
etc.. Consenting.
This agreement (or indenture), made this day
of , witnesseth :
That A. A., of , aged years, with the
concurrence and consent of P. A., his father (or
G. N., guardian, his guardian, or T. R., U. S., and T
S., trustees of the in ), doea hereby bind
himself out to M. M., etc. (as in the above forms).
Apprenticeship Cancellation of Agree-
ment, etc.
We hereby cancel the within agreement (or
indenture) of apprenticeship.
Dated . (Signed) A. A., P. A., M. M.
Apprenticeship Guaranty of Fidelity.
By the father Indorsed.
In consideration of the performance of the
agreements and covenants specified in the within
agreement (or indenture), by M. M., with my son,
A. A. (and the further consideration of one dollar, the
receipt of which is hereby acknowledged), I do hereby
bind myself to said M. M., for the true and faith-
ful observation and performance of all the matters
and things by said A. A. agreed and covenanted
therein, and that he shall well and truly serve
said M. M.
Witness my hand this day of , A. D.
. P. A.
Appren ti cesh ip Release.
Know all men by these presents :
That A. A., son of P. A., did by his agreement
(or indenture), bearing date the day of ,
bind himself as an apprentice unto M. M., of ,
for a term of from the date thereof, as by said
indenture more fully appears.
That, etc. (stating the reasons for the release).
That by reason thereof, said M. M. does hereby
release and forever discharge said A. A. (and his
father P. A.) of and from said agreement (or inden-
ture), and all service (suretyship), and all other
agreements, covenants, matters, and things there-
in contained, on their or either of their parts to
be observed and performed, whatsoever, from the
beginning of the world unto the date hereof.
In witness whereof, I have hereunto set my
hand this day of , A. D. . M. M.
Approach. See MARITIME LAW.
Appropriation. See INTEREST; PAYMENTS.
Approval. See BONDS.
Approved Indorsed Notes. See NOTES.
Appurtenances. See REAL PROPERTY.
Arbiter. See AGENCY ; ARBITRATION.
Arbitration and Award. See AGENCY;
ARBITRATION.
Arbitrary Punishment. See PUNISHMENT.
Arbitration. See AGENCY.
Arbitrator. See AGENCY.
Archives. See GOVERNMENT.
Area. See HOUSE ; REAL PROPERTY.
Argument. See PRACTICE.
Aristocracy. See GOVERNMENT.
Arm of the Sea. See WATER ; REAL PROPERTY.
Armistice. See INTERNATIONAL LAW.
Arms. See MILITARY LAW.
Arraignment. See CRIMINAL LAW; PRACTICE.
Arrears. See PAYMENT.
Arrest. See PRACTICE.
Arrest of Judgment. See JUDGMENT; PRAC-
TICE.
Arson. See CRIMINAL LAW.
Articles. See CONTRACT; PARTNERSHIP; PRAC-
TICE.
Articles of Confederation. See CONFED-
ERATION ; GOVERNMENT.
Articles of Impeachment. See IMPEACH-
MENT.
Articles of Partnership. See PARTNERSHIP.
Articles of War. See MILITARY LAW ; WAR.
Artificial. See PERSON.
Ascendants. See GENEALOGY; PERSONAL RE-
LATIONS.
Asphyxy. See MEDICAL LAW.
Asportation. See CRIMINAL LAW.
Assassination. See CRIMINAL LAW.
Assault. See CRIMINAL LAW.
Assay. See MONEY.
Assembly. See LEGISLATION ; GOVERNMENT.
Assent. See CONTRACTS.
Assessment. See TAXATION ; GOVERNMENT.
Assets. See DEBTOR; ESTATES.; MERCANTILE
LAW ; PROPERTY, ETC.
96
ASSIGNMENT.
ASSIGNMENT. See ACCOUNT; AGREEMENT;
BOND; BOOKKEEPING; LEASE; MORTGAGE, ETC.
AN ASSIGNMENT is a transfer by writing, as
distinguished from one by delivery. It is a
transfer or making over to another the whole
of any property, real or personal, in possession
or in action, or of any estate or right therein.
A transfer of title or interest by writing ; the
writing by which the assignment is made.
An assignment differs from a lease, which is
the conveyance of a less term than the lessor
has in the estate.
Every demand connected with a right of
property, real or personal, is assignable. Rent
to grow due; the right to cut trees, which
have been sold on the grantor's land ; the ser-
vices of an indentured apprentice ; b a replevin
bond ; a claim for sheriff's fees ; a future debts ; e
a guarantee/ and a mere possibility, coupled
with an interest, may be assigned.^ As a gen-
eral rule, all choses in action, such as bonds,
mortgages, notes, judgments, debts, contracts,
agreements, as well relating to personal as real
estate, are assignable, and will pass to the as-
signee a right of action in the name of such
assignee, against all parties liable to an action. h
When a chose in action is assignable, it may
be assigned in separate parcels to different per-
sons ; and either of the assignees may maintain
an action to recover the portion to him as-
signed. 1 Where, however, a debt is assigned
in separate parcels, it is, in effect, a splitting
of the cause of action, and the whole debt,
notwithstanding the assignments, should be
sued for in one action.^ If the owner of some
part of the debt will not join as co-plaintiff, he
should be made a defendant. A single debt (a
single cause of action] cannot be converted into
several debts (several causes of action) unless
with the consent of the debtor. k
Some choses in action are not assignable.
For example, an officer's pay or commission ;'
or the salary of a judge ; m or claims for fishing ;
or other bounties of the government ; or rights
of action for fraud or tort. n Nor can personal
trusts be assigned ; as the right of a master in
his apprentice ; or the duties of a testamentary
guardian. P A person cannot sell to another a
debt against himself; a debtor has no assign-
able interest in- debts owing by him. A de-
mand due from a person to himself and another
as partners, is, to the extent of his own interest
in it, no debt against him.i
Consideration. An assignee of a right of
action is not bound to show that he gave any
a-Hob. 173 ; i Greenl. Ev. \ 27 ; Cruise Dig. tit. i,
45, ,- 7 N. H. 522; 6 Me. 81, 200; 18 Pick. 569; i
Met. 313; 4 Id. 580; 9 Leigh. 548; n Ad. & E. 34. b-
5 Cow. 363; Will. Eq. Juris. 460. c-5 Hill, 293. d-23
How. 236 ; 14 Abb. 285. -13 Abb. 475. f-i Bosw.
352. jf-7 Paige, 76; 17 How. (U. S.) 368 ; 2 Seld. 187.
h-See Willard's Eq. Juris.; Burril Assignments, 65. i-2
Seld. 179 ; 8 How. 514. J-See 10 N. Y. 273 ; 3 Abb. 431.
Jt-i3 Mo. 300; 6 Cush. 282 ; u S. & R. 78. 1-2 Anstr.
533 ; i Ball & B. Ch. (Ir.) 387; i Swanst. 74; 3 T. R.
681 ; 2 Beav. Rolls. 544 ; Turn. & R. 459 ; see 7 Mat.
335; 13 Mass. 290; 15 Yes. Ch. 139. rn-io Humph. 342.
n-i Pet. 193; 6 Cole, 456; 3 E. D. Smith, 246; 22
Barb, no; 26 Id. 635; 2 N. H. 293; 3 Litt. (Ky.) 41 ;
9 Serg. & R. 244; 6 Madd. Ch. 59; Mylne & K. 592.
valuable consideration for the assignment
The owner of the cause of action may give it
away if he choose, and the donee will have as
good a right as though he were an assignee for
value. r In the absence of evidence to the
contrary, it will be presumed the assignment
was for a sufficient consideration. 8 Proof of a
valuable consideration is only necessary to be
made when a defence is set up, which, unless
the plaintiff was purchaser for value, would
conclude him ;' as where the object is to prove
that the alleged assignment is a mere sham. u
And when, in pleading, the assignment is al-
leged to have been for value received, the
allegation as to value received is immaterial. T
No formality is necessary to effect a
transfer of a chose in action. Any transaction
between the contracting parties which indicates
their intention to pass the beneficial interest
in the instrument from one to the other, is
sufficient for that purpose ; a debt or claim may
be assigned by parol as well as by writing."
Proof of Assignment. An assignment is
proved by the evidence of the payee of the
note in suit, that he had indorsed (or delivered
without indorsement, for a valuable considera-
tion ) x the note to the plaintiff, and that he has
no interest in the note when sworn.J The
production by the plaintiff, on the trial, of an
assignment to himself, after due proof of the
execution thereof by the assignor, is sufficient
evidence of a delivery of such assignment, 1 and
that it was delivered on the day it bears date.*
Warranty. In every assignment of an in-
strument, even not negotiable, the assignee
impliedly warrants that the instrument is valid,
and the obligor liable to pay it ; b and that there
is no legal defence to its collection, arising out
of his own connection with the original trans-
action. That the party was competent to
contract ; d and that the amount is unpaid.*
Where a debt is assigned it carries with
it all the collateral securities held by the as-
signor for its collection, although they are not
mentioned or referred to in the assignment.' An
assignment of a guaranteed note carries with it
the guarantee^ and the assignment of a debt
carries with it, as an incident, a collateral mort-
gage, 11 by which it is secured.
The proper technical and operative
words in assignment are " assign, transfer, and
set over " ; but " give, grant, bargain, and sell,"
or any other words which show the intent of
the parties to make a complete transfer, will
operate an assignment. 1
O-n B. Mon. 60 ; i Mass. 172 ; 8 Id. 299 ; 8 N. H. 47*.
B-i2 N. H. 431 ; i Hill, 375. q-n Barb. 140. r-i E.
.Smith, 400; 2 Id. 497; 4 Id. 220; 27 Barb. 178; 14
Id. 79 ; 38 Id. 574 ; i Abb. 177. S-io N. Y. 60 ; 16 Abb.
146. t-s Sandf. 52 ; 2 Seld. 214. u-2 Abb. 81. v-3
Cranch. 193 ; i Abb. 177. w-2 Story Eq. 311 ; 4Taunt.
326; Robert's Fr. 275; i Ves. 331 ; 17 How. (U. S.)
368 ; Id. 612 ; 4 Blackf. 380 ; 3 Sm. & Marsh. 647 ; I E.
D. Smith, 273 ; 4 Id. 440 ; i Barb. 454 ; 39 Id. 163 ; 2
Hilt. 77; Id. 485 ; 19 Johns. 95 ; 15 Barb. 371; i Johns.
580; 12 Id. 346; 17 id. 284. x-3 Kas. 295. y-aoN.Y.
472. z-4 E. D. Smith, 423. a-3i Barb. 155. 6-12 Sm. &
Marsh. 302: 2 Ellis & Bl. 849. <J-2o N. Y. 226. d-isld.
574. -15 Id. 439. f-2 Hilt. 484. K-39 Barb l6 3- 1-J
Cow. sea. i-Watkins 1 Conv. (.Preston Ed.) B. a, C. *.
ASSIGNMENT.
ASSIGNMENT FORMS.
The essential requisites of an assignment are :
1. The proper technical and operative words of
assignment, or their equivalent.
2. The description of the property or thing assigned
(so that a stranger may know and distinguish it without
difficulty).
3. The conditions, limitations, restrictions, etc., im-
posed, with time, manner, etc., of performance, if any.
4. The signature of the assignor.
When an assignment is made on conditions, with lim-
itations, restrictions, etc., and the assignor does not
want to lose control of the property or thing assigned
(he having given the assignee possession), he must have
it recorded or registered in the proper office, as if it
were a mortgage on the property or thing assigned.
And when all the conditions are complied with, he
should enter satisfaction on the record, or give a receipt
to that effect.
Assignment Simple Forms.
I assign (state what) to E. F.
Dated, . (Signed) A. B.
Another.
I hereby assign and set over to E. F. the follow-
ing articles, viz. (naming them).
Dated, . (Signed) A. B.
Another.
I hereby assign, transfer and set over unto E.
F. all my title and interest in and rights under
the following (or within) (state what).
Dated, . (Signed) A. B.
Another.
On account of (state what) I assign (state what)
to E. F.
Dated, . (Signed) A. B.
Another.
For value received I assign, etc. (stating -what)
to E. F.
Dated, . (Signed) A. B.
Another.
In consideration of (state what) I assign, etc.
(stating what).
Dated, . (Signed) A. B.
Another, with Conditions.
When the assignee has possession of the property as-
signed, this assignment, to be of effect, should be recorded
in the proper office.
I (or we, giving names of assignor or assignors, if
desired ) hereby assign, transfer and set over unto
E. F., etc. (subject to the conditions [or stipulations]
herein contained) all the following described prop-
erty, viz. (describing it).
In consideration thereof said E. F. has delivered
(or paid, state what).
And it is hereby agreed
That said E. F. shall, on or before the day
of , deliver (or pay, state what).
That said property shall not pass from his pos-
session or the ownership vest in him until he has
made said delivery or payment, etc., as is herein
specified. (Signed) A. B., E. F.
Assignment <eneral Form.
With Power of Attorney.
In consideration of the sum of dollars (the
receipt of which is hereby acknowledged) I do hereby
assign, transfer and set over to E. F. (of ), all
my right, title and interest in and to (here describe
what).
(And I do hereby constitute said E. F. my at-
torney, in my name or otherwise, but at his own
costs and charges, to take all legal measures
which may be proper or necessary for the com-
plete recovery and enjoyment of the premises).
Witness my hand (and seal) this day of .
(Witness) C. D. A. B. \Seal.\
Assignment General Form.
With Conditions. With Power of Attorney.
Know all men by these presents :
That I, the undersigned, for value received, do
hereby grant, assign, transfer and convey unto
E. F. (here describe the property assigned).
To have and to hold the same forever, hereby
appointing and constituting said assignee
ti ue and lawful attorney in name , place ,
ur.d stes>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. <i-i Parsons Contr.
632. e-Story Bailm. $} 494-496; 2 Kent Comm. 598,
599; Redf. Rlys. \ 124; i S.Vlk. 249; a Ga. 348; 14
Ala. N. S. 261; i Bouv. Inst. . 1020; it has been
doubted whether carmen, 8 C. & P. 207, and coasters, 6
Cow. a66, were common carriers ; but these cases stand
alone, and are contradicted by many authorities, 19
Barb. 577; 24 Id. 533; 9 Rich. (S. C.) 193. f-i9 Wend.
Carriers are either common or private carriers
Common carriers are such as carry goods foi
hire, indifferently for all persons.
The definition includes carriers by land and
water. They are, on the one hand, stage-coach
proprietors, railway companies, truckmen, wag-
oners and teamsters, carmen and porters, and
express companies, whether such persons un-
dertake to carry goods from'one portion of the
same town to another, or through the whole
extent of the country, or even from one state
or kingdom to another. And, on the other
hand, this term includes the owners and mas-
ters of every kind of vessel or water craft who
set themselves before the public as the carriers
of freight of any kind for all who choose to
employ them, whether the extent of their navi-
gation be from one continent to another, or
only in the coasting trade, or whether employed
in lading or unlading goods, or in ferrying,
with whatever mode of motive power they
adopt. 6
Common carriers of passengers are such as
carry persons for hire, and are bound to cany
all who offer/
Private carriers are such as do not carry
goods for hire indifferently for ail persons.
COMMON CARRIERS. Where a carrier un-
dertakes to carry only for the particular occa-
sion, he cannot be held responsible as a common
carrier. So, also, if the carrier be employed
in carrying for one, or a definite number of
persons, by way of special undertaking. To
constitute one a common carrier, he must make
it, for the time, a regular employment to carry
goods for hire for all who choose to employ
him.s This rule embraces the proprietors of
stage wagons and coaches, omnibuses and rail-
ways ; h also carters, expressmen, porters, ship-
owners, and all who engage regularly in the
transportation of goods or money, either from
town to town, or from place to place in the
same town.
Common carriers are held to the responsi-
bility of insurers for the safe delivery of prop-
erty intrusted to their care, upon the grounds
of public policy, to prevent fraud, and collusion
with thieves, and because the owner, having
surrendered up the possession of his property,
is generally unable to show how or where the
loss occurred.*
Common carriers are responsible for all loss
or damage during transportation, from what-
ever cause, except the act of God, or the public
enemy.J The carrier is not responsible for
239 : 10 N. H. 486 ; 15 111. 472 ; 2 Sumn. C. C. 221 ; 3
Brod. & B. 54 ; 9 Pick. 408. sr-2 Kelly 349, 353 : i Salk.
249; 2 C. & P. 598; i Nev. & Per. 22; i Pick. 50; 23
Vt. 186 ; i Conn. 54. h-Story Bailm. 3 496, and cases
cited, i-i Daly (C. P.) 547. f-Aug. Carr. 70, ? 67 ; i
T. R. 27 ; 2 Ld. Raym. 909, 918 ; i Wils. 281 : i Salk.
18. and cases cited : 4 Bingh. (N. C.)3>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. <l-YeIverton, 65,
and note, e-ig Pick. 228. f-j 351,479; 14 Johns.
377 ; 15 Vt. 515 ; i Barn. & C. 92 ; 2 Mass. 147 ; 19 Vt.
I3i : 3 Stark, 6; i Camp. 39, 190; 8 Vt. 54; 12 Id. 617.
g-4 Taunt. 745, 749. 11-24 Vt. 347; u Id. 549; 19 Id.
121 : 3 T. R. 590. i-Holt. N. P. 547; 22 Texas, 657;
*4 Mo. 600. J-Webst. Diet. Luke ii ; in most of the
States, the words Inn, Tavern, and Hotel are synony-
mous : Webst. Diet.; see 2 Kent Comm. fgth Ed.) 597;*
note A. k-Bac. Abr. Inns, etc.; Story Bailm. JS 475;
"It ought to be a common inne " for passengers, not for
neighbors or boarders; 8 Co. 32; it is not requisite
that stable* be connected with the house, or that trav-
ellers and passengers, their horses and attend-
ants, for a reasonable compensation. 11 But one
who entertains strangers occasionally, although
he may receive compensation for it, is not an
innkeeper. 1
A guest is a traveller who stays at an inn or
tavern with the consent of the keeper." 4
A boarder is one who being an inhabitant
of a place, makes a special contract with
another person for board, including food and
lodging," and is to be distinguished from a
guest.
A boarding-house or restaurant keeper is not
an innkeeper, either as to duty, right, or re-
sponsibility. P
GUESTS RIGHTS AND RESPONSIBILITIES.
All who become the patrons of an innkeeper
(not of a victualer, or boarding-house keeper,
or a farmer, or other person), in his capacity as
such, are guests. But it is requisite that the
place where entertainment is sought be a com-
mon inn', and the guest must become a patron
of the inn upon the expectation of both parties,
to pay for what he receives ; and the guest
must not have changed his relation of a tran-
sient guest to that of a permanent boarder ; for,
if so, he is no longer entitled to that higher
degree of responsibility which attaches to the
office of an innkeeper. One may acquire the
rights of a guest as to his horse by leaving him
at the stable of an inn.i So, also, where, in
addition to that, he took some of his meals at
the inn. r
If, after taking lodgings at an inn, a guest
leaves his horse there and goes elsewhere to
lodge, he is still to be considered as a guest;'
but not if he merely leaves goods for keeping,
for which the landlord receives no compensa-
tion.' The length of time a man is at an inn
makes no difference, whether he stays a day, a
week, or a month, or longer, or only for tem-
porary refreshment. So, always, that though
not strictly transient, he retains his character
as a traveller." But if a person comes under
a special contract to board at an inn, he is
not, in the sense of the law a guest, but a
boarder. v
Innkeepers are generally liable for all goods
belonging to the guest brought within the inn.
It is not necessary that the goods should have
been in the special keeping of the innkeeper
to make him liable. This rule is founded on
ellers exclusively receive entertainment there, 3 B. &
Aid. 283 ; 8 Co. 290 ; and it will not vary the character
of the relation that one remains ever so long, or that
terms of compensation are fixed by previous contract ;
7 Cush 417 ; Story Bailm. 477. 1-2 Dev. & B. 424; 7
Ga. 296; i Morr. (Tenn.) 184. lll-Bac. Abr. Inns, C*
5 ; 8 Co. 32. 11-7 Cush. 424. o-Story Bailm. ty 477 , 26
Vt. 343: 26 Ala (N. S.) 271; 7 Cush. 417. p-6 Vt. 294 ;
1 Snlk. 387; i Ld. Raym. 479; 3 El. & Bl. 144; S. C
25 Eng. I,. & Eq. 76. q-J Salkeld. 388. S. C. Ld.
Raym. 866: Yelv. 67; Cro. Jac. 188; 26 Vt. 316: i
Smith's Leading Cases, 50, note to Cayle's case : 8 Co.
32 : Bac. Abr. Chitty Conrt. 476 ; 9 Pick. 280 ; 25
Wend. 653 ; 3 Hill, 486 ; 8 Blackf. 535 ; 16 Ala. 666. r-
5 T. R. 273; i Smith L. Cas. 50, note to C's case- 53
Mann. 163; 33 Cal. 557. 8-26 Vt. 316. t-i Salk. 388;
2 Ld. Raym. 866: Cro. Jac. 188. u-5 T. R. 273; 5
Barb 560. v-Bac. Abr. Inns, C 5; Story Bailm 477;
26 Ala. (N. S.) 377; 26 Vt. 33f% 343: see 7 Cuh. 417.
'34
BAILMENTS.
principles of public utility to which all private
considerations ought to yield.'
A restaurant-keeper is not responsible as an
innkeeper. 8 But one who occasionally entertains
travellers may be an innkeeper.* And one is
clearly not responsible, as such, to another not a
guest."
An innkeeper is responsible for an injury to a
horse left at his stable, while driven for exercise/
One wishing to become a guest at an inn, and
ready and willing to pay for his entertainment,
may recover damages for refusal to receive him. w
INNKEEPERS DUTIES AND RESPONSIBILI-
TIES. An innkeeper is bound to take in and
receive all travellers and wayfaring persons, and
to entertain them if he can accommodate them,
for a reasonable compensation ;* and he must
guard their goods with proper diligence. He
is liable only for the goods which are brought
within the inn.- T A delivery of the goods into
the personal custody of the innkeeper is not,
however, necessary in order to make him re-
sponsible ; for, although he may not know any-
thing of such goods, he is bound to pay for
them if they are stolen or carried away, even
by an unknown person ;* and if he receive the
guest, the custody of the goods may be consid-
ered as accessory to the principal contract, and
the money paid for the apartments as extending
to the care of the box and portmanteau.* The
liability of an innkeeper is the same in charac-
ter and extent with that of a common carrier. b
He is responsible for the acts of his domestics
and servants, as well as for the acts of his other
guests, if goods are stolen or lost ; c but he is
not responsible for any tort or injury done by
his servants, or others, to the person of his
guest, without his own co-operation or con-
sent." 1 But the innkeeper will be excused
whenever the loss has occurred through the
fault of the guest. 8
An innkeeper is responsible presumptively
for all losses, and can excuse himself only by
showing that he did all in his power to prevent
it. f He is responsible for all money and other
articles the guest finds it convenient to carry
with reference to his expenses and business.
And if money is stolen from the guest, he may
recover, although he omitted to put it in the
safe ;R but this will depend somewhat on the
r-2 Kent Comm. 459; i Hayw. 40; 14 Johns. 175;
Dig. 4, 9, i ; see 3 B. & Aid. 283 ; 4 M. & S. 306 ; i
Holt. N. P. 209; i Salk. 387; Garth. 417; i Bell.
Comm. 469 ; Dane Abr. Index ; Yelv. 67, a; t Smith
L. Cas. 47 ; 8 Co. 32 ; 14 Barb. 193 ; i Cal. 221 ; 7 Cush.
417; 26 Vt. 242. s-i Hilton, 193. t-z Texas. 798. u-
11 C. B. (N. S.) 638 ; 9 Jur. (N. S.) 1284. v-2 H. & C.
14; S. C. 9 Jur. (N. S.)444- W-i Car. & M. 494: ?C.
& P. 213 ; 8 M. & W. x-5 T. R. 274 ; 3 B. & Aid.
285 : i C. & K. 404 ; 7 C. & P. 213 ; 4 Exch. 367. y-8
Co. 32 ; Jones Bailm. 91. z-8 Co. 32 ; i Hayw. 41 ; 14
Johns. 175 ; 23 Wend. 642 ; 5 Barb. 560 ; 7 Cush. 114 ;
see 25 Eng. L. & Eq. 91 : 27 Miss. 668 ; i Bell Comm.
469. a- Jones Bailm. 94; Story Bailm. ? 470; i Bl.
Comm. 430; 2 Kent Comm. 458-463. b-fl Pick. 280;
7 Cush. 417 ; 9 Humph. 746 ; i Cal. 221 ; 8 B. & C. 9 ;
31 Me. 478 ; 8 Blackf. 535 ; see 5 Q. B. 164 ; 23 Vt. 177 ;
26 Id. 317; 14111.129. c-7 Cush. 417; 5 Barb. 560. d-
8 Co. 32. e-Story Bailm. \ 483; 4 M. & S. 306; i
Stark, 251, n; 2 Kent Comm. 461 ; i Yeates, 34. f-26
Vt. 316, 335. g-n La. An. 324 ; S. P. Id. 524 ; 17 111.
joa ; 44 Barb. 31 ; 51 Id. 632 ; 14 Johns. 175 ; i Yeates,
amount and use.s The obligation upon the
guest to place his money in the safe seems to
depend upon the amount and what is prudent. k
The guest must deposit his goods in the or-
dinary place, in care of the proper person.
There is no particular course to be adopted by
the guest, except to be prudent. It is the duty
of the host to be watchful at all points. 1 He
must not trust to the opinion of his guest, but
see to it himself that the goods are positively kept
safe. The omission of the guest to fasten his
door, etc., will not excuse indifference on the part
of the host. Where the guest exposes his money
to be seen by others, and then leaves it within
their reach, he has no redress if it is stolen. 1
The guest must either take exclusive possession
of his goods or else utterly disregard all ordinary
precautions for safety, in order to exonerate the
innkeeper ;J and to charge the guest with negli-
gence, exonerating the innkeeper, it should ap-
pear that the guest fully understood the danger
and persisted in leaving his goods exposed. k
The innkeeper is responsible for all money
and other property the guest finds it convenient
to have with him, he using all reasonable precau-
tions himself not needlessly to expose it to loss. 1
An innkeeper must furnish reasonable lodgings."
A mere boarding-house keeper cannot be
subjected to the responsibilities of an inn-
keeper." And so if a guest takes a room at an
inn for the purpose of selling goods therein,
the landlord is presumptively not responsible
for their safety.
LlEN UPON THE EFFECTS OF THE
GUEST. The innkeeper is entitled to a just
compensation for his care and trouble in taking
care of his guest and his property ; and, to en-
able him to obtain this, the law invests him
with some peculiar privileges, giving him a lien
upon the goods brought into the inn by the guest ;
and, it has been said, upon goods on the person
of his guest for his compensation ;P and this,
though the goods belong to a third person, if he
was ignorant of the fact.<i He has a lien upon all
the goods of a guest in his custody for all ex-
penses incurred ; T and this will extend to his
horse, harness and carriage, for the keeping of
his horse, and probably for the whole sum due ; r
and this lien will not be affected by any defect
in the title of the guest. 1
34; iCal.22i. h-27Miss. 657 ; 21 N. Y. IIT : i Bosw.
321 ; 4 E. D. Smith, 88 ; 13 Md. 126. 1-3 F. & F. 306 ;
14 Johns. 175 ; 8 N. H. 508 ; 8 Wend. 547 ; i Ad. & El.
522 ; 53 Me. 163 ; 6 Hurl. & N. 205 ; S. C. F. & F. 283 ;
24 Barb. 384 ; 14 La. An. 524 ; 17 Q. B. 261 ; 4 Mam. "&
S. 306 ; 24 Ind. 347. J-2 Met. (Ky.) 439 ; 8 B, & C. 9
1 Ad. & El. 522 ; i Hffton N. Y. C. P. "84. k-Redf. on
Car. & Bailm. $74,76. l-j Cush. 417, 427; 2 B. & Ad.
803; 6 Eng. L. & Eq. 349; 17 Q. 6^261 ; i Haym. 40;
2 Kent Comm. 592, 594; Story
Yeates, 35 ; 12 Mod. 483, 487.
Bailm. 478, 481 ;
m-See 8 M. & W. 269.
n-12 Mod. 254 ; i Salk. 387 ; S. C. i Ld. Raym. 479 ; '4
Camp. 77 ; 3 El. & Bl. 144 ; S. C. 25 Eng. L. Rep. 76 ;
8 C. B. (N. S.) 254; 33 Cal. 557. 0-4 Maule & Selw.
306; t Holt N. P. 209 : S. C. i Stark. N. P. 249. p-
3 B. & Aid. 287: 8 Mod. 172 ; i Show. 270; see 7 C. &
P. 67: 3 Hill, 485; i Rich. 213; 2 6Vt.335; 3 M. & W.
248; Bac. Abr. Inns, etc., D. q-3 Stark. 172 ; 12 Q
B. 107; 7 C. & B. 208; ii Barb. 41. As to detaining
the horse of a guest, see 25 Wend. 654 ; 9 Pick. 280. r
Story Bailm. ? 476 ; 3 M. & W. 348. 8-13 Q. B. 197 ; i
C. B. (N. S.)267; 10 Exch. 417; 28 Eng. L.
BAILMENTS.
135
An innkeeper has no lien upon the effects
of his ordinary boarders for their expenses in-
curred.*
An innkeeper has a lien upon a traveller's
horse put in his stable, although he lodge
elsewhere. So, also, upon all property the
gnest leaves in his possession, for all expense
incurred.
The lien of an innkeeper is not affected by
the fact that the guest is an infant. v
The landlord may also bring an action for
the recovery of his compensation.
LOANS are bailments without reward.
Bailments of articles for use or consumption
without reward. The things so bailed.
A loan, in general, implies that a thing is lent
without reward ; but, in some cases, a loan may
be for a reward ; as, the loan of money." It
would be an inquiry too purely speculative,
whether this use of the term loan originated in
the times when the taking of interest was con-
sidered usury and improper the bailment of
money which was to be returned in kind the
supposition would furnish a reasonable expla-
nation to the exception to .the general rule that
loan includes properly only those bailments
where no reward is given or received by the
bailee. In order to make a contract usurious
there must be a loan, x and the borrower must
be bound to return the money at all events.?
The purchase of a bond or note is not a loan,*
but if such a purchase be merely colorable, it
will be considered as a loan.*
FOR CONSUMPTION. A loan for con-
sumption is a contract by which the owner of a
personal chattel, called the lender, delivers it
to the bailee, called the borrower, to be re-
turned in kind. For example, if a person bor-
rows a bushel of wheat, and at the end of a
month returns to the lender a bushel of equal
value. This class of loans is commonly con-
sidered under the head of bailments ; but it
lacks one essential element of bailments : that
of a return of the property ; it is more strictly
a barter or exchange ; the property passes to
the borrower. b Those cases, sometimes called
ventem (the corresponding civil law term), such
as where corn is delivered to a miller to be
ground into meal, or wheat into flour, are
either cases of hiring of labor and service, as
where the miller grinds and returns the identi-
cal wheat ground into flour, retaining a portion
for his services ; or constitute a mere exchange,
,as where he mixes the wheat with his own, un-
dertaking to furnish an equivalent in corn. It
amounts to a contract of sale, payment being
t-8 Rich. 423. u-zs Wend. 653 : 9 Pick. 280. v-2
Duval, 147. w-y Pet. 109. x-Cowp. 112, 770; Ves.
Ch. 527 ; 2 Bl. 859 ; 3 Wils. 390. y-2 Sch. & L. Ch. Ir.
470. J6-3 Sch. & L. Ch. Ir. 469 ; 9 Pet. 103. a-z Johns.
Cas. 60, 66: 12 S. & R. 46 ; 15 Johns. 44. fo-4 N. Y.
76; Bid. 431; i Ohio St. 98; 3 Mas. C. C. 478; i
Blackf. 353 ; Story Bailm. 439. c-2 Kent Comm. (4th
Ed.) 573- d-Story Bailm. \ 223. e-2 Ld. Raym. 913.
f-Story Bailm. g 225; 13 Vt. 161. g-Story Bailm. g
8. fa-Id. % 50, 162, 302, 380. i-i Atk. Ch. 235 ; 8 T.
R. 199 ; 2 Tiant. 268. j-i Mod. 210; 4 Sandf7 8. k-
j Mass. 104; i Const. 121 ; 3 Bingh. (N. C.)468; Brae-
ten, yo. TOO. 1-3 Bingh. (N. C.)468; 14 III. 84; 4
stipulated for in a specified article instead of
money.
FOR USE. A loan for use is a bailment
of an article to be used by the borrower without
paying for the use. 8 A loan for use (called com-
modatum in the civil law) differs from a loan
for consumption (called muluum in the civil
law) in this, that the commodatum must be spe-
cifically returned, the mutuum is to be returned
in kind. In the case of a commodatum the
property in the thing remains in the lender ;
in a mutuum the property passes to the bor-
rower.
The loan, like other bailments, must be of
something of a personal nature;* it must be
gratuitous* for the use of the borrower; and
this is the principal object of the bailment;'
and must be lent to be specifically returned at
the determination of the bailment." The gen-
eral law of contracts governs as to the capacity
of the parties, and the character of the use ; h he
who has a special property may loan the thing,
and this even to the general owner, and the
possession of the general owner still be that of
a borrower. 1
The borrower may use the thing himself; but
may not, in general, allow others to use it-*
during the time, and for the purposes, and to
the extent contemplated by the parties. 1 He is
bound to use extraordinary diligence ;* he is re-
sponsible for accidents, though inevitable, which
injure the property during any excess of use;*
he must bear the ordinary expenses of the thing,"
and must restore it at the time and place, and
in the manner contemplated by the contract,*
including also all accessories^ or increase. He
must, as a general rule, return it to the lender.''
The borrower of goods is responsible for any
damage or loss, if it was occasioned by his ne-
glect, or if he used the goods in a manner not
warranted by the terms of the loan ; r he is bound
to exercise all the care and diligence that the
most careful persons are accustomed to apply to
their own affairs ; and in his case the omission
of the most exact and scrupulous caution is re-
garded as culpable. 8
The borrower puts the thing to any other
use at his peril, and he must do all he
would to preserve his own property, of equal
value. 1
The borrower is not responsible for loss by
robbery without his fault."
The lender may terminate the loan at hi*
pleasure;' he is perhaps liable for expenses,
adding a permanent benefit." The lender stiii
Sandf. 8. m-5 Mass. 194 ; 16 Ga. 25. n-Jones Bailm.
67. 0-16 Ga. 25 ; 12 Texas, 373 ; Story Bailm. 99. IV
16 Ga. 25; 2 Kent Comm. (4th Ed.) 566. As to the
place of delivery see 9 Barb. 189 ; i Me. 120 ; i N . H .
295 ; i Conn. 255 ; 5 Id. 76 ; 16 Mass. 453 , Chipman
Contr. 25. q-7 Cow. 278; i B. & Ad. 450; n Mass.
211. r-Wright, 410; i Sneed. 248; 35 Mo. 487; 2
Ld. Raym. 909; 10 Johns. 172; 10 Mass. 125 : Jones
Bailm. 64. S-i Abb. Dig. 368 ; 4 Sandf. S. C. 5; 14
111. 84 ; 17 Ind. 155 ; 21 111. 259 ; 3 Allen, 594 ; 9 Barb.
176; 13 Vt. 161. t-37 111. 259; Story Bailm. $ s,
3, 4. U-28 Ind. 167. v-9 East. 49; i T. R. 480: c
Cow. 687 ; 8 Johns. 432 ; 16 Ga. 85. w-Story BaiH
136
BAILMENTS.
retains his property as against third persons,
and, for some purposes, his possession. 1 "
MANDATE is a bailment of property in
regard to which the bailee engages to do some
act without reward."
Mandates and deposits closely resemble each
other; the distinction being, that in mandates,
the care and service are the principal, and the
custody the accessory ; while in deposits, the
custody is the principal thing, and the care and
service are merely accessory.'
The mandator is the person employing an-
other to perform a mandate."
The mandant is the bailor in a contract of
mandate.
The mandatary is the one who undertakes to
perform a mandate.
For the creation of a mandate it is neces-
sary:' I. That something should exist which
should be the subject-matter of the contract ;
2. That it should be done gratuitously ; and 3.
That the parties should voluntarily intend to
enter into the contract.
There is no particular form or manner of
entering into the contract of mandate pre-
scribed, in order to give it validity. It may be
verbal or in writing ; express or implied ; in
solemn form, or in any other manner." The
contract may be varied at the pleasure of the
parties. It may be absolute or conditional,
general or special, temporary or permanent.*
A voluntary undertaking is not obligatory;
but if entered upon, the confidence created by
the delivery of the goods imposes upon the
bailee the duty of performing the service ac-
cording to the expectation thus voluntarily
created. f But a bailee without reward, or
profession of skill, is only bound to act accord-
ing to his ability. 1 The mandatary, upon un-
dertaking his trust and receiving his article, is
bound to perform it as agreed upon," and is
responsible only for gross negligence ; b but in
considering the question of negligence, regard
is to be had to any implied undertaking to
furnish superior skill, arising from the known
ability of the mandatary. He must render
an account of his proceedings, and show a
compliance with the conditions of the bail-
ment. 4
One may, by special undertaking, or inter-
r-n Johns. 285 ; 6 Id. 195 ; 13 Id, 141, 561 ; 7 Cow. 753 ;
old. 687; i Pick. 389: 5 Mass. 303 ; iT.lt. 480: aCampb.
464; aBingh. 172; iB. &Ald. 59: 2Cr. M. & R. 659. As
to whether the property is transferred by a recovery of
judgment for its value see 26 Eng. L. & Eq. 328 ; 2 Str.
1078; Mete. Yelv. 67, n. ; 5 Me. 147; i Pick. 62 ; see
generally Edw. Jones & Story Bailm. ; Kent Comm.;
Lect. 46 ; Chipman & Parsons, Contr. S-Story Bailm.
j> 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 <is
banking hours of the next day within which to present
it, Chitty, 385 ; 2 Taunt. 388 ; 2 Camp. 537. n-2i Wend.
372; 20 Id. 205; 10 Id. 306; 12 Story C. C. 502, 512.
q-2 Het. 586 ; z N. Y. 425 ; 5 Johns. Cas. 2 ; i Ga. 304 :
2 Mood. & Rob. 401 : 3 Scott (N. R.) 555 ; 3 Kent
Comm. Csth Ed.) 104, . Story Prom. Notes, \ 492. r-
13 Wend. 549; 10 Id. 304; 4 Due.', 122. 8-2 Wood ic.
Rob. 401 ; 3 Scott (N. R.) 555 : 7 M. & G. 10, 67: Eng.
C. L. R. vol. 49: 9 Q. B. 52; Eng C. L. R. vol. 58
t-i6 Pet. i ; 5 Johns. Ch. 54; 20 Johns. 437; 3 Ken
Comm. 81. U-i Hall, 56, 78; 4 Johns. 296; 7 S. & R
116; 2 Pick. 204. v-3 Bouv. Ii
Ch. 386. x-3 Curt. Eccl. $50.
BILLS, BONDS, AND NOTES.
149
an ordinary check, but as a memorandum of
indebtedness ; and between parties this seems
to be their only effect. But in the hands of a
third party, for value, they have all the force
of checks without such word of restriction.^
CHECK FORMS.
9 Place , Date .
A. B. pay to P. E., or bearer (or order),
dollars. D. R.
$ . Place , Date .
First National Bank, pay to the order of P. E.
dollars. D. R.
A CERTIFICATE OF DEPOSIT is on the same
footing as a promissory note. z It changes the
character of a custodian of the funds to that
of a debtor.'
CERTIFICATE OF DEPOSIT FORMS.
B. R. S. & Co., Bankers.
$ . Place , Date .
D. R. has deposited with us dollars, pay-
able to P. E. (pt- himself) or order (on return of this
certificate;. B. R. S. & Co.
A PROMISSORY NOTE is a written promise to
pay a certain sum of money at a future time
unconditionally. 11
A holder of a promissory note is one to whom
a promissory note is indorsed for collection as
an agent, for the purpose of transmitting no-
tices.
A promissory note differs from a mere
acknowledgment of debt without any promise
to pay, as when the debtor gives his creditor
an I. O. U. d In its form it usually contains a
promise to pay, at a time therein expressed, a
sum of money to a person therein named, or to
his order, for value received. It is dated and
signed by the maker. It is never under seal.
A note by two or more makers may be either
joint or joint and several. A note signed by
more than one person, and beginning, " We
promise," etc., is a joint note only. A joint
and several note usually expresses that the
makers jointly and severally promise. But a
note signed by more than one person, and begin-
ning, " I promise," etc., is several as well as
joint. 6 So, a note beginning, " I promise,"
and signed by one partner for his copartners,
is a joint note of all. r A note in the form " I
promise," etc., subscribed by two persons, is a
joint and several note.s Persons who sign
their names to a note will be presumed to be
joint makers in the absence of anything to the
contrary on the face of the note. h But one of
the signers of a note, joint in form, is not es-
topped by its terms from showing that he is
surety; such showing does not contravene the
stipulations of the note.*
No precise words of contract are essential in
a promissory note, provided they amount in a
y -Story Prom. Notes, \ 499. z-4 Cal. 37 ; 29 Id. 503.
f-7 Id. 543. l>-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, <j i : 3 Kent Comm. 84. 1-Str.
214; 6 Wend. 642. j-n Mod. 190. It-Cowp. 571; 4
Camp. 393; Str. 1211; Minor, 173; 7 Greenl. 126; i
Miles, 294; 14 Barb. 186. 1-3 Camp. 57; i M. & W.
374; 2 Gale, 29, S. C.; 7 S. & Marsh, 244. m-i Stra.
214. n-Malloy, 283; ii Mod. 190. 0-4 Esp. 270,
Bayley Bills, 204.
162
BILLS, BONDS, AND NOTES.
person interested in the bill, the acceptance
thereof.? Hence, if the drawee has written
his name on the bill, with the intention to ac-
cept, he is at liberty to cancel his acceptance
at any time before the bill is delivered, or at
least before the acceptance is shown.' Cancel-
lation of the acceptance by mistake made by
other parties does not destroy the bill. 1 "
The acceptor is primarily liable to pay the
bill ; he is the principal debtor to the holder,
and the drawer and indorser are parties liable
on his default." The acceptor of a bill stands,
for most purposes, in the same situation as the
maker of a note. The acceptor's liability can
only be discharged by payment, or other satis-
faction, by release or by waiver.* The liability
of an acceptor, though complete, may be dis-
charged by an express renunciation of his claim
on the part of the holder. Nothing short of an
express discharge, 7 founded upon a good con-
sideration, w will do. The cancellation of the
acceptor's name by the holder is a waiver of
the acceptance. Where a third person cancels,
it is a question of fact whether that cancellation
were with the assent of the holder. x The
liability of the acceptor, as such, will be also
waived or extinguished, by taking from him a
co-extensive security by specialty. But if the
new security recognize the bill or note as still
existing, it is not extinguished.? An intentional
alteration of a bill or note in any material par-
ticular, after it has become an available security,
without the consent of the parties interested,
cancels or destroys the instrument.* Thus,
altering the amount, or the date by which the
time of payment is postponed, or the place of
payment, or the terms of the acceptance, avoids
the bill or note.*
By acceptance the drawee admits the signa-
ture and capacity of the drawer, and cannot,
after thus giving the bill currency, be admitted
to prove that the drawer's signature was
forged. b An acceptor is bound to know the
drawer's handwriting, and cannot resist pay-
ment to a bona fide holder, though the bill be
a forgery . It, moreover, admits, and so does
the maker of a promissory note, the then
capacity of the payee, to whose order the bill
or note is made payable, to indorse." 1 If the
drawee has once admitted that the acceptance
is in his own handwriting, and thereby given
currency to the bill, he cannot afterward ex-
onerate himself by showing that it was forged. 6
p-S B. & Aid. 474 ; i Dowl. & Ry. 38. |-s B. & Aid.
474 : i D. & R. 78, S. C.: 6 East, 199 ; 2 Smith. 337, S.
C.; Marius, 20. r-is East. 17; n M. & W. 778. s-2
Burr. 674 ; Dougl. 249 ; 8 Esp. 47 ; 6 B. & C. 442 ; 4
Bing. 720. t-See infra, u-i Camp. 35. v-Dougl.
235 : 13 East. 430, n.; M. & W. 14 ; 2 Stark. 531 ; 2 C.
& P. 497; Peake, 187; Story Bills, ? 266. So, a right
to sue the drawer may be waived, i Stark, 7 ; 2 Id. 340 ;
Story Bills, \ 252 ; 15 L. J.; 217 Ex.; 14 M. & W. 831,
S. C.; in L. J.; Exch. 34 ; 3 D. & L. 506. w-2 Stark.
203 ; i Doug. 2^7 ; Story Bills, $ 266. x-g B. & C. 365 ;
4 M. & R. 287, S. C. y-3 B. & C. 208 ; 5 D. & R. 259.
J6-6 Mass. 519: 35 Penn. St. 80; 15 Mass. 136; 19
R. 390; i Camp. 82; i Bing. N. C. 436; i Scott. 342;
PRESENTMENT FOR ACCEPTANCE. If a bill
of exchange be drawn payable at sight, or a
certain number of days or months after sight,
or after demand, presentment is necessary in
order to fix the time when it shall become pay-
able ; and the law, not deeming it wise or
equitable to prescribe a fixed period within
which such a bill is ti -.c oresented for accept-
ance, so as to cha^e tne drawer and indor-
sers, declares briefly that it must be presented
within a reasonable time, and leaves it to th
court to determine what is a reasonable time
under the circumstances of each particular case.'
The law does not fix a time for the presentment
of bills for acceptance where they are drawn
payable on or after sight ; the rule in such cases
is, where there is no usage of trade, that the bill
must be presented within a reasonable time,
which is a mixed question of law and fact, to
be determined by the jury with the assistance
of the judged A bill payable on demand must
be presented within a reasonable time, or the
drawer will be discharged. 11 Until such pre-
sentment there is no right of action against any
party ; and unless it be made within a reason-
able time, the holder loses his remedy against
the antecedent parties. 1 When a bill is drawn
payable a specified length of time after date, or
on a day certain, the holder need not, for the
purpose of charging the drawer and indorser,
present it for acceptance before it becomes due
and payable.'
It is in all cases advisable for the holder
of an unaccepted bill to present it for accept-
ance without delay ; for, in case of acceptance,
the holder obtains the additional security of
the acceptor, and, if acceptance be refused, the
antecedent parties become liable immediately.
If accepted the holder acquires thereby addi-
tional security of the acceptor. If the drawee
refuses to accept, recourse may be had im-
mediately to the drawer and indorsers for
payment. k If the holder present the bill for
acceptance, though not bound to do so, he must
give notice of the non-acceptance to the drawer
and indorser, without delay. 1 Presentment
should be made during the usual hours of busi-
ness." 1 Business hours, except in the case of
banks, range during the whole day down to the
hours of rest in the evening." The holder may,
however, put the bill in circulation without pre-
senting it. Presentment should be either to
the drawee himself, or to his authorized agent,'
3 Dowl. 382, S. C.; i Stra. 648: 2 Id. 946; i M. & SeL
13; 4 Camp. 78, S. C. C-io Wheat. 339; i Binney, 27,
S.C. ; 4 Dallas, 234. d-2 R. &C. 293 ; 3 D. &Rv. 534,8.
C. ; 8 Q. B. 473 : 4 Esp. 487 ; 4 Price, 300. e-4 Esp. 226 ;
3 Hill (S. C.) 227 ; i Ala. 104 ; Riley, 248 ; 19 Pick. 99 ; 7
Blackf. 56. f-7 Cowen, 705 ; i Id. 397 ; 20 Johns. 147 ; 13
Mass. 131 ; 28 Eng. L. & Eq. 86 tf-2 H. Bl. 565 ; 7
Taunt. 395 ; i M. & M. 133 ; 3 C. & P. 80 ; 9 Bing. 416 ;
2 M. & Sc. 570, S. C. : 20 Johns. 146 ; 4 Mason, 336 ; S.
C. 5 Mason, 118; 7 Cowen, 705; 12 Pick. 399. li-2 Hall,
459; 7 Blackf. 367. i-Byles Bills, 140. {-28 Wend.
321 : S. C. 17 Id. 368 ; 4 How. (Miss.) 567 ; 12 Vt. 401 ;
8 Mo. 268. k-3 Johns. 202; 3 East. 481 ; Dougl. 54.
1-2 Peters, 170; i T. R. 712 r 4 How. (Miss.) 567; n
Vt. 401 ; 8 Mo. 268. m-Mar. 112. n-2 Hill, 635; 7
Leigh. 179. o-2H. 81.565; 9 Bing. 416; 2M.&Sc.
570, S. C. ; 7 Taunt. 160; a Marsh, 454. p-s JEsp. 175.
BILLS, BONDS, AND NOTES.
163
and should be made in such a manner as to give
him an opportunity to act deliberately.' If the
drawee desire it, the bill should be left with
him twenty-four hours, unless in the interim
he either accept or declares his resolution not
to accept. r If more than twenty-four hours be
given, the holder ought to inform the antece-
dent parties of it. 8
NON-ACCEPTANCE. The proceedings neces-
sary to be taken by the holder, on a refusal of
a drawee to accept, are the same in most re-
spects as are required to be taken by him in the
case of non-payment of a bill of exchange or a
promissory note. The principles applicable to
the giving of notice to the drawer and indor-
sers, are, under the law merchant, the same in
either case, and it will be considered together
in a subsequent section. But the rules more
immediately relating to the conduct that should
be pursued by the holder, where the bill is dis-
honored by non-acceptance, will now be briefly
considered.
Generally, a failure to give the drawer and
indorsers notice of non-acceptance discharges
them ; the notice is required so that these par-
ties may take prompt measures of self-protec-
tion, the drawer, by withdrawing, or withhold-
ing the further accumulation of, effects in the
hands of the drawee, and the indorsers by ob-
taining or securing payment from the parties
respectively liable to them.' The drawer and
indorsers are liable to an action by the holder
immediately after the bill is refused acceptance,
and before it is payable, on giving due notice
of non-acceptance." The mere fact that the
drawer has no funds or effects in the hands of
the drawee, is not alone sufficient to excuse the
want of notice, if it appears that the drawer
had a reasonable expectation that his bill would
be accepted and paid. T If the drawer has no
funds, and knows that he has none in the hand.
of the drawee, and no right to expect that his
bill will be honored, he is not entitled to notice
of dishonor.* Drawing under such circum-
stances does not give the drawer a right to in-
sist upon the rule requiring notice.* When a
bill is drawn merely for discount, and without
any expectation that it will be accepted and
paid by the drawee (as where it is drawn and
indorsed for the accommodation of the drawer),
notice of non-acceptance is not necessary.'
Fraud in other parties to the bill does not de-
prive the indorser of his right to notice where
he is not privy to the fraud.* And the mere
fact that the drawer has no funds in the hands
of the drawee, though known to the indorser,
does not deprive the latter of his right to insist
q-sEsp. 175; Chitty Bills, 279. r-Bayley,Ch.7, gi.
-a Smith, 242 t-Chitty Bills, 326 : 17 Wend. 94. 11-4
Mason, 336 ; 3 Mass. 557 ; 8 Id. 460 ; i Day. n ; i Yeates,
204 ; 4 Johns. 144 : 5 Id. 375-; 3 Id. 202 ; i Wash. C. C.;
uPeters, 80 ; 4 Porter, 348 ; 3 Mason, 505 : Anthon, 35.
T-4 Cranch, 141 ; 12 East. 171 : 2 Camp. 503 ; 3 Id. 334 ;
15 East. 216; l6Id. 43; 4 M. & S. 226; 7 Greenl. 126.
w-7 Mass. 452 ; 7 Harr. & Johns. 381 ; 2 Nott. & M'-
Cord, 257, n ; 3 Johns. Cas. ; 6 Cowen, 484 ; 28 Barb.
r, 392 ; 12 Abbt. 139 ; i Wash. C. C. 461 ; 33 Penn.
134. x-i T. R. 405; 20 Johns. 146. y-4 Rand.
5J3: I6M&W.743. *-4 Taupt. 731. -8 B. & C.
on the usual notice.* The death of the drawe
may render a presentment for acceptance fruit-
less and unnecessary, but does not dispense
with the necessity of giving timely notice of the
dishonor of the bill. b Neither does the death
of the drawer or indorser discharge the holder
from his duty to give the usual notice ; but the
notice must be sent to the representatives if the
holder know, or can ascertain who they are,
and their address. If the holder does not
know of the drawer's death, notice should b
given in the usual way. d And when there are
joint indorsers, not partners, it is incumbent
upon the holder to give notice to the represent-
atives of the deceased ; if he fails to do so he
loses his remedy against the survivor, for the
latter is thereby deprived of his right of con-
tribution from the estate of his co-indorser. c
Bankruptcy, or known insolvency of the drawer
or maker, does not excuse neglect to make pre-
sentment, or to give notice/ Where the drawee
cannot be found, or has absconded, it is suffi-
cient to use due diligence to present the bill for
acceptance or for payment ; provided the holder
takes care to communicate the requisite notice
to the indorser.s Where the drawer or indor-
ser has absconded, or cannot be found, it is
enough if the holder use due diligence in giv-
ing the required notice. 11 Services of notices
of protest on parties residing in the town or city
where such protest is made, may be by deposit-
ing such notice in the post-office in a sealed
envelope, addressed to such person, with the
postage prepaid. 1 Sudden illness, or death of
the holder, or his agent, or other accident, may
constitute an excuse for the want of regular
notice to any of the parties, in case it be
given as soon as possible after the impediment
is removed .1 And this is clearly in harmony
with the general principles of the commercial
law, which in no case requires the performance
of an act that has been rendered impossible
through no fault of the holder. k The breaking
out of a war, blocking up the usual channels
of communications; 1 the prevalence of a ma-
lignant fever, that puts a stop to all business,"
and, in general, any such inevitable accident as
prevents the giving of notice, and is not trace-
able to the neglect of the holder, will excuse
delay so long as the preventing cause continues.
When it is said that the notice must be sent as
early as on the next day after dishonor, the mean-
ing is, that it must be forwarded on the next busi-
ness day. If the protest be made on Saturday,
notice is properly sent on Monday, by the first
mail that closes after the commencement of the
ordinary hours of business. So, if the protest
610; 6M. & W. 743; 6Bmg. N.C. 69; $M &W.4i8.
b-Chitty Bills. 330; Byles Bills, 40, 41. -5 Hill. 236.
Cl-i7 Johns. 25. e-5 Hill, 213; i Conn. 367; 19 N. Y.
477, 481. f-Bayley Bills, 7,$ i ; 16 East. 112 : 5 Taunt.
30; ii East. 114; 17 Wend 94. g-2 Johns. 274; 2
Games, 127 ; 13 Johns. 207 ; 2 Sneed,425. 555 ; i M'Cord,
339; 4 Taunt. 731. ll-2 Sand. 171; 3 Comst 272. i-
See NOTICE, below. j-Chitty Bills, 330. lt-3 Wend
488; 2 Smith, 222: 6 I'.ast 16 , 3 Johns. Cas. i ; Anthon
N. P. 35; i M'Cord, 339. l-z Smith, 222 m-2 Johns
Cas. i. 11-3 Wend. 488: 6 East. 16. o-i Hill, 263 . 3
B. & P. 599 ; 2 B. & A. 501, n ; ao Eng. L. & Eq. 99<3
.64
BILLS, BONDS, AND NOTES.
be made on the third day of July, the notice
will be sufficient if sent on the fifth. For the
same reason, if the third day of grace be a
holiday, the demand of payment must be upon
the next preceding day of business, unless
there be a provision of statute to the con-
trary. P Penna. notes due on Saturday may
be paid the following Monday. A foreign
bill dishonored should be protested,<> 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
3<Xh of May, and not on the 3ist. This mode
facilitates greatly the ascertaining of the day
of protest, and the computation of interest. It
is extremely simple.* There is another ele-
ment to be taken into account in the computa-
tion of time when bills or notes become due,
known as days of grace? In computing the
time when a note or bill becomes due, the days
of grace are added therein, just the same as if
they formed part of the bill or note itself.* To
every practical purpose, therefore, the days of
grace are a part of the instrument itself. And
the negotiability of a note is as perfect and un-
restricted during those days as before their com-
mencement, 1 and no action can be brought upon
the instrument until the third day has expired. 6
All bills of exchange are entitled to three
days of grace in time of payment.
Whenever the third day of grace falls upon
Sunday, the 4th day of July, the 25th day of
December, the 1st day of January, or upon any
day appointed by the President of the United
States or the governor of this State for a pub-
lic fast or thanksgiving, the next preceding
business day shall be deemed the last day of
grace.
As a general rule, notes that are not negoti-
able are not entitled to days of grace. d This
class of notes comprehends such as are not
drawn in negotiable terms. 6 Such as are pay-
able in specific articles/ and such as neither
the statute law nor any recognized or estab-
lished custom has rendered negotiable. If en-
titled to days of grace by custom, and not by
virtue of statute law, the custom must be proved
affirmatively. 8
The maker of a note and the acceptor of a
bill is entitled to the usual hours of business,
on the third day of grace, in which to make
payment ; and when a note is not drawn pay-
able at a particular place, or at a bank, the de-
mand of payment may be made at any time
before the usual hours of rest. For the pur-
pose of presenting a note or bill for payment,
the proper hours of business range through the
x-Per MARTIN J. Id. ; 2 Ld. Raym. 1079; 2 Johns
203: 3Cowen,252; 4 Mass. 53 ; n Id. 88. y-i Ld
Rayni. 743 ; Edw. Bills, Parsons Bills. z-2Cowen,7i2
-8Conn. 505. b-3 Wend. 170; 6W. &S. 179: 2 Miles
353; ii S. & M. 452. c-i Ld. Raym. 743; Edw. Bills
Parsons Bills. l-io Conn. 299 ; 20 Wend. 205: 2 Conn
69 ; 3 Hawks. 465. e-ioConn. 299. f-ioS. & Marsh. 486
IC-7 B. Mon. 575. h-2 Hill, 635. i-2 Wend. 170; 2 Bos
Pil. 602 ; 4T. R. 170; 8 East. 168 ; 9 M. fit W.S2 3 . 4-12
whole day, down to bed-time in the evening. 11
In other contracts the party has until the last
instant of the day to make payment ; and ne-
gotiable paper is no exception to the gen""">l
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. <fc Johns. 402 ; (4 Pick. 314.
Davies, 146. q-3 Caines, 14; 15 Wend. 19. r-i Bibb.
334; 10 Watts. 255; 5 Mason, u. s-i Harr. & Johns.
754 ; Id. 98 ; i Dev. 341 ; 8 W. & S. 17 ; i Strobh. 426 ;
8 S. & Marsh. 368 ; 3 Sand. Ch. 608 ; n Paige, 619 ; 2
Fla. 445. t-4 Harr. & Johns. 351; 9 Wheat. 720; 10
Conn. 175 ; 4 Mason, 332; 9 Shep. 138; 9 Watts. 386;
i Woodbury & Minot, 150; n Met. 174 ; Davies, 146 ;
14 N. H. 431. u-4 Ired. Eq. 42 ; 2 Rich. Eq. 43; 10
S. & Marsh, 113. v-Gilpin, 106 ; 12 S. & R. 301 ; 9
Wheat. 720; i Mason, 323; i Harr. & Johns. 754; 2
dorser, and the demand and protest are mad*
and given in due time, there is no reason vrhy
the taking of a check on the bank as a means
of obtaining the money on the bill, should
operate to discharge any of the parties thereto."
The taking of a note, or draft, or check is no
payment unless the parties make it such by
express and positive agreement. The note of
the debtor, receipted as cash, is not an absolute
payment; nor is the note of a third person,
unless it be expressly accepted as payment. 4
Such receipt may be explained or even contra-
dicted. 8 But the creditor receiving a draft
drawn by his debtor or a third person, may
make it by his own laches, or by taking some
other security in its stead. f When bills are
taken in payment of a debt, and the creditor
sues on the original consideration, payment of
the bill will be presumed until the contrary ap-
pear.* And where a creditor takes from his
debtor a check on a bank or a negotiable note,
he cannot recover on the original consideration
without showing the check to have been dis-
honored or surrendering the note to be can-
celled. 11 A check drawn payable to the order
of the creditor and indorsed by him, produced
by the debtor, is evidence of payment of so
much money ;' and proof of delivery of the
check to him in payment of the debt, though
payable to bearer and the production of it by
the drawer, will raise the presumption that the
person to whom it was delivered received the
money on iU
Payment means payment in due course and
not by anticipation ; and if a negotiable note
or bill of exchange be paid before its maturity,
and not surrendered, and afterwards came into
the hands of a bona fide holder, it is valid
security in his hands. k A bank that pays a
check prematurely does not thereby appropri-
ate the drawer's funds ; it is a payment without
authority. 1 The acceptor of a bill, whether
inland or foreign, and the maker of a promis-
sory note, should pay it on demand at any time
within business hours on the day it becomes
payable ; and if it be not paid on such demand,
the holder may instantly treat it as dishonored.
But the maker or acceptor has, as we have seen,
the whole of that day in which to make pay-
ment ; and though he should in the course of
the day refuse payment, and thus entitle the
holder to give notice of dishonor, still if he
makes payment afterward on that same day, it
Vt. 283; 12 Id. 256; i Branch. 409; 5 Oilman, 449.
W-Gilpin, 106; 12 N. H. 320; i McLean, 493; 5 S. &
Marsh. 410; 5 Leigh. 329. x-4 Car. & Payne, 508. y-
5 Cowen, 516; 2 Bibb. 280; 16 Mass. 453; i Hempst.
67. z-s Cowen, 518; 2 Denio, 145. a-? Bam. & Cress.
90; 8 Barb. 408. b-Chitty Bills; Story Bills, c-s
Johns. 68; 9 Id. 310; 15 Id. 324; 6 Wend. 490; 5
Denio, 360; 3Comst. 168; 7 Abb. 259 ; 10 Md. 27. d-5
Johns. 68. e-i Sand. 9 ; 5 Wend. 85. f-g Wend. 122 ; 5
Hill, 466; iSand.Si; 23 Wend. 345. g;-5E?p. 52; 3 E.
D. Smith, 253. h-i Johns. 34; lold. 104: 15 Id. 147:1
M. & R. 365; 29 Penn. St. 448. Thebankstamp "paid"
may be explained by showing it was made by mistake,
Hill & Denio, 363. i-3 Esp. 196. J-4 Taunt. 493 ; 4
Esp. 9. h-4 Mass. 372 ; n Johns. 128 ; 14 Gratt. I ; 3
Camp. N. P. 193; 3 T. R. 80: Chitty Bills, 260, 395.
1-6 Duer. 76; 13 East. 516; 8 Wend. 478. m-j B. &
P. 599; 4 T. R. 170.
BILLS, BONDS, AND NOTES.
will be sufficient, and will render the notice of
the dishonor of no avail." The indorser, of
course, becomes liable to an action as soon as the
credit given to the maker or acceptor has expired .
- WHO BY. The maker of a promissory
note and the acceptor of a bill of exchange,
heing the parties primarily liable, are bound to
pay the bill or note at its maturity ; hence the
payment of a note by the maker, or the pay-
ment of a bill by the acceptor, when properly
made, discharges the drawer and indorsers
thereon, and cancels or puts an end to the secu-
rity as an existing obligation^ When a bill is
paid by an accommodation acceptor, the law
implies a contract on the part of the drawer to
refund to the acceptor the amount so paid, with
such damages as he may have sustained in the
transaction .<i Having been paid, it remains in
the hands of the acceptor as a voucher to be used
by him in his settlement with the drawer, or as
an item of evidence in an action brought for
the recovery of the money paid. 1 " The same
principles apply to the case of a promissory
note, made for the accommodation of the payee,
or of some other person to whom it is delivered
for negotiation.* And payment of the note by
the surety, while it cancels the note, raises an
implied contract on the part of the principal
debtor to repay the same to the surety.' As
between the makers of a note and the payee or
holder, the makers are all principals, though
one of them signs as " security."" As between
themselves, the relation of the parties may be
proved. T Payment of a note or bill by an in-
dorser is a satisfaction of it only in respect to
subsequent indorsers. An indorser who takes
up by paying dishonored paper becomes the
holder as against prior parties, w and may trans-
fer it or put it into circulation ; it is paid only
as to subsequent indorsers ; r for a bill is not
discharged until paid by or on behalf of the
acceptor, nor a note until paid by or on behalf
of the maker.? For this reason, when an in-
dorser takes up a dishonored note or bill, he is
at liberty to put it again in circulation ; z whereas
payment by the maker of a note or the acceptor
of a bill discharges it, so that it is no longer
negotiable.* One who voluntarily and offi-
ciously pays the debt of another, without request
or authority to do so from the debtor, cannot
recover from him the sum paid. b After a for-
eign bill has been protested for non-payment,
any person may pay it (under protest) for the
honor of the drawer or indorser, and is entitled
to demand repayment, not only from the person
for whose honor he made the payment, but
from all other parties who are liable to that
11-3 Wend. 170; 2Cowen,766; Byles Bills, 175; 6
W. & S. 179. 0-2 Dowl. P. C. 81 ; i Cromp. M.
& Ros. 370; 3 Tyrw. 487. p-2 Denio, 205. q-3
Barb. 634. r-7 Barb. 143 ; 2 Denio, 205 ; 5 Hill,
160; ai Wend. 502. 8-3 Johns. Cas. 5; i Wils. 85;
^ T. R. 182 ; 3 Camp. 101 ; 2 Wheat. 385. t-Byles
Bills, 193 ; 5 Blackf. 37. u-6 Barb. 199 ; 2 Comst. 406.
V-io Barb. 512. w-ag Conn. 347. x-14 Gratt. i. y-
Byles Bills, 174 ; 6 Foster, 422. z-3 Wend. 75 ; i Cow-
en > 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<e made), to
be paid to the said C. D., his executors, adminis-
trators, or assigns (or to the said E. F. and C. D.,
their executors, administrators, or assigns), for which
payment, well and truly to be made, I do bind
myself, my heirs, executors, and administrators,
and also the said ship or vessel, her tackle, ap-
parel, and furniture (and freight), firmly by these
presents.
Sealed with my seal ; dated this day of
Whereas, the above-bounden M. R. has bor-
rowed, taken up, and received of the said C. D.,
the full and just sum of dollars, which sum
is to run at bottomry on the body, tackle, ap-
parel, and furniture (and freight) of the said ship
or vessel (here state the voyage for which the loan is
made, e. g., thus'): from the port or road of P., on
a voyage to the port of R., having permission to
touch, stay at, and proceed to all ports and place*
within the limits of the voyage, at the rate or
premium of per cent, for the voyage (orui the
i ate or premium of per cent, for every calendar
momh the said ship or vessel shall be out on said voy-
age, and so in proportion for a less lime than a month),
in consideration whereof the usual risks of the
seas, rivers, enemies, fires, pirates, etc., are to be
on account of the said C. D. : And whereas, for
the further security of the said C. D., the said M.
R. has agreed to and does by these presents mort-
gage and assign over to the said C. D., his exec-
utors, administrators, and assigns, the said ship
or vessel (and her freight), together with all her
tackle, apparel, and furniture; and it is hereby
declared that the said ship or vessel and appur-
tenances (and her freight) are thus assigned over
for the security of the bottomry taken up by the
said M. R., and shall be delivered to no other use
or purpose whatever, until payment of this bond
is first made, with the premium that may become
due thereon.
Now the condition of the above obligation is
such, that if the abeve-bounden M. R., his heirs,
executors, and administrators, or either of them,
shall and do well and truly pay, or cause to be
paid, unto the said C. D., or to his attorneys in
, legally authorized to receive the same, or to
his executors, administrators, or assigns, the full
and just sum of , being the principal of this
bond, together with the premium which shall be-
come due thereupon, at or before the expiration
of days after the safe arrival of the said ship
or vessel at her moorings in the harbor of R., or,
in case of the loss of the said ship or vessel, such
an average as by custom shall have become due
on the salvage, then this obligation is to be void ;
otherwise, to remain in full force.
Having signed three bonds of the same tenor
and date, either one thereof being accomplished,
the other two are to be void and of no effect.
A. B. [Sea!.]
Bond or Obligation Bottomry Bond
by a Part Owner.
Signing as Attorney for Other Owner.
Know all men by these presents :
That I, M. R. (master, and) one-third owner of
the ship or vessel V., now lying in the port of
, for myself, and O. R., who owns the other
two-thirds of said ship or vessel, by me are held
and firmly bound unto C. D., of the city of , in
the county of , and State of , merchant (or
unto C. D., of , and E. F., of ), in the sum
of dollars, good and lawful money of the
United States (or other currency in which payment
is to be made}, to be paid to the said C. D., his ex-
ecutors, administrators, or assigns (or to the said
C D. and E. F., their executors, administrators, or
a-ssigns), for which payment, well and truly to be
made, we bind ourselves, our heirs, executors,
and administrators, firmly by these presents.
Sealed with our seals ; dated this day of
And it is hereby declared that the said ship or
vessel and appurtenances (and herfieight), are thus
assigned over for the security of the bottomry
taken up by the said M. R., and shall be delivered
to no other use or purpose whatever, until pay-
ment of this bond is first made, with the pre-
mium that may become due thereon.
Now, therefore, the condition of the above ob-
ligation is such, that if the above-bound en M. R.
and O. R., their heirs, executors, or administra-
tors, or either of them, shall well and truly pay,
or cause to be paid, unto the said C. D., or to his
(at to C. D. and E. F., or to their) attorneys, at ,
legally authorized to receive the same, or to the
executors, administrators, or assigns of said C.
D. (and E. F.), the just and full sum of dollars,
being the principal of this bond, together with
the premium which shall become due thereon, at
or before the expiration of days after the ar-
rival of the said ship or vessel at the port of ;
or, in case of the loss of the said ship, such an
average as by custom shall have become due on
the salvage, then this obligation is to be void ;
otherwise, to remain in full force.
Having signed three bonds of the same tenor
BONDS OR OBLIGATIONS.
185
nd date, either one thereof of which being ac-
complished, the other two are to be of no effect.
M. R. [Sean
Executed in presence ) O.K. [Seal.]
ofW. T..N. S. J fry A .A.
Bond or Obligation Conveyance of
Land.
Know all men by these presents :
That we, A. B. and B. A., as principals, and S.
S. and Y. Y., as sureties, are firmly bound unto
C. D. in the sum of dollars, to the payment
of which to the said A B. and B. A., or their ex-
ecutors, administrators, or assigns, we hereby
jointly and severally bind ourselves, our heirs,
executors, and administrators.
The condition of this obligation is:
That whereas the said obligors have agreed to
ell and convey unto the said obligee a certain
tract of real estate, situated , and bounded as
follows, namely :
The same to be conveyed by a good and suffi-
cient warranty (or other) deed of the said obligors,
conveying a good, clear, and sufficient title to the
same, free from all incumbrances.
And whereas, for such deed and conveyance it
is agreed that the said obligee shall pay the sum
of dollars, of which dollars are to be paid
in cash upon the delivery of said deed, and the
remainder by the note of the said obligee,
bearing interest a* per cent, per annum, pay-
able semi-annually, and secured by a mort-
gage in the usual form upon the said premises,
such note to be (describe the note).
Now, therefore, if the said obligors shall upon
tender by the said obligee of the aforesaid cash,
note, and mortgage at any time within from
this date, deliver unto the said obligee a good
and sufficient deed as aforesaid, then this obliga
tion shall be void, otherwise it shall be and
remain in full force and effect.
In witness whereof, we hereunto set our hands
and seals this day of .
A. B., B. A., Principals.
S. S., Y. Y., Sureties.
Signed and sealed in presence)
of W. T., N. S. j
Bond or Obligation Conveyance of
Land.
Know all men by these presents :
That A. B., of , in the county of , and
State of , held and firmly bound unto C. D.,
of , in the county of , and State of , in
the penal sum of dollars, for the payment of
which sum, well and truly to be made to C. D.,
his heirs, executors, and administrators, I bind
myself, my heirs, executors, and administrators,
firmly by these presents:
Sealed with my seal, and dated this day
of .
The condition of the above obligation is such :
That whereas the said A. B. this day has given
the said C. D. promissory note of even date here-
with.
Now, if, on payment of the said note being
made on or before the time the same shall be-
come due, and all taxes on the land hereinafter
described having been paid by the said A. B.,
and no right of pre-emption having been estab-
lished or claimed on the said land, or any part
thereof, the said A. B., or his legal representa-
tives, shall, whenever thereunto afterwards re-
quested, execute and deliver to the said C. D., or
his legal representatives, a good and sufficient
deed, conveying to him or them the (here follows
a, description of the land), free and clear of all in-
cumbrance (except, etc.), then this obligation to
be null and void, otherwise of full force and effect.
It is distinctly understood and agreed by and
between the parties hereto that the time of pay-
ment herein above fixed shall be material and of
the essence of this contract, and that in case of
failure therein, the intervention of equity is for-
ever barred. A. B. [Seal.]
Signed, sealed, and delivered) C. D. \Seal.\
in presence ofW. T.,N. S. /
Bond or Obligation Corporation.
Know ail men by these presents :
That I, A. B., of , am held and firmly bound
unto the Insurance Company, in the sum of
one thousand dollars, to be paid to the said
Insurance Company, or assigns; for which pay-
ment, 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 abpye-bounden A. B., his heirs, ex-
ecutors, or administrators, shall well and truly
pay, or cause to be paid, unto the above-named
Insurance Company, the just and full sum of
five hundred dollars, in five equal annual pay
ments from the date hereof, with annual interest
then the above obligation to be void ; otherwise
to remain in full force and virtue.
A. B. [Seal.]
Sealed and delivered in pres- )
enceof W. T.,N. S. J
Bond or Obligation Corporation Ne-
gotiable, etc.
See title BONDS, NOTES, AND BILLS, ante.
Bond or Obligation Covenants, etc.
See PEKFORMANCE, below.
Bond or Obligation Deed of Land.
Know all men by these presents:
That A. B., of the county of , and State of
is held and firmly bound to C. D. , of , in
the sum of dollars, to be paid to said , his
executors, administrators, or assigns, to the pay-
ment whereof he binds himself, his heirs, ex-
ecutors, and administrators, firmly by these pres-
ents.
Sealed with seal, and dated the day
of .
The condition of this obligation is,
That if , the said C. D., upon payment of
dollars, and interest, by said A. B. within
years from this date, agreeably to his
note of even date herewith, shall convey to said
C. D., and his heirs forever, a certain tract of
land, situated in the county of , and State of
, to wit : (describing it), by a warranty (or other)
deed in common form duly executed and ac-
knowledged, and in the meantime shall permit
said C. D. to occupy and improve said premises
for his own use, then this obligation shall be void,
otherwise to remain in full force and effect.
In witness whereof, I have hereunto set my
hand and seal, the day and year first above writ-
ten. A. B. {Seal.}
For form of ACKNOWLEDGMENT, see that title.
Bond or Obligation Deed by Vendor
to Purchaser.
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
the town of , in the county of , and State
of , merchant, in the sum of dollars, good
and lawful money of the United States, to be
paid to the said C. D., his executors, administra-
tors, or assigns ; for which payment, well and
truly to be made, I do bind myself, my heirs, ex-
ecutors, and administrators, firmly by these pres-
ents :
Sealed with my seal ; dated this day of
Whereas, the above-bo unden A. B. has this day
agreed to sell to the said C. D. the following de-
scribed tract of land in the county of , in the
State of , to wit: (describing it), on condition
that the said C. D. shall pay the sum of dot'
lars in manner following, to wit: (stating time,
etc.), and for which the said C. D. has given his
promissory note.
Now the condition of this obligation is such,
That if said C. D. rhall pay said note at matur-
ity, and shall in the meantime pay all taxes on
said land, and the said A. B. shall on the comple-
tion of said payments make, execute and deliver,
or cause to be made, executed and delivered \htie
state the conveyance to be given, as), a good and suf-
ficient warranty-deed to the said C. D. for said
tract of land, then this obligation to b* void;
otherwise to remain in full force.
186
BONDS OR OBLIGATIONS.
And it is expressly agreed by and between said
parties, that time is of the essence of this con-
tract, and that in the event of the non-payment
of said sum of money, or any part thereof,
promptly at the time herein limited, that then
the said A. B. is absolutely discharged at law and
in equity from any and all liability to make and
execute such deed, and may treat the said C. D.
as a tenant holding over after the termination, or
contrary to the terms of his lease ; or if he prefer
to do so, may enforce the payment of said note.
A. B. [>"'-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<h payment is to be made), to
be paid to the said C. D., his executors, adminis-
trators, or assigns (or to the said E. F. and C. I) .
their executors, administrators, or assigns), for which
payment, well and truly to be made, I do bind
myself, my heirs, executors, and administrators,
and also the said ship or vessel, her tackle, ap-
parel, and furniture (and freight), firmly by these
presents.
Sealed with my seal ; dated this day of
Whereas the above-bounden A. B. has (or A B.
and U. A have) borrowed, taken up, and received
of the said C. D.,the full and just sum of
dollars, which sum is to run at respondentia on
the said ship or vessel (here state the voyage for
which the IOJ.H is made), at the rate or premium of
ttt
BONDS OR OBLIGATIONS.
- per cent, for the voyage (or at the rate of -
per cent, for every calendar month the said ship or ves-
el shall be out on the said voyage, and so in proportion
for a. less time than a month); in consideration of
which the usual risks of the seas, rivers, enemies,
fires, pirates, etc., are to be on the account of the
said C. D. ; and whereas, for the further security
of the said C. D., the said A. B., for and on ac-
count of the owners, their executors, administra-
tors, and assigns, has agreed to, and does by
these presents mortgage and assign over to the
said C. D., the several goods, wares, and mer-
chandise laden and to be laden on the said ship or
vessel; which said goods, wares, and merchan-
dise, with their produce, are thus mortgaged and
assigned over, for the security of the respondentia
taken up by the said A. B. , and shall be delivered
to no other use or purpose whatever, until pay-
ment of this bond is first made, with the premium
that may become due thereon :
Now 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
said C. D., or to his attorneys (or to C. D. and E.
F., or to their attorneys), at - , legally authorized
to receive the same, or to the executors and ad-
ministrators of the said (E. F. and; C. D., the just
and full sum of - dollars, being the principal
of this bond, together with the premium which
shall become due thereupon, at the expiration of
- months after the safe arrival of the said ship
or vessel at her moorings in the port of - , or in
case of the loss of the said ship or vessel, such
average as by custom shall have become due on
the salvage, then this obligation is to be void ;
otherwise, to remain in full force. Having signed
three bonds of the same tenor and date, either
one thereof being accomplished, the other two
are to be of no effect.
.
Executed in presence of)
W. T., N. S. j
A. B.
Bond or Obligation Service.
In Consideration of the Payment of a Debt.
Know all men by these presents:
That I, A. B., of - , in consideration of the
sum of - , to me in hand paid by C. D., of - ,
have bound myself, and by these presents do bind
myself a servant unto the said C. D., to serve
him, the said C. D.,his executors and adminis-
trators (and assigns), for the space of - months
and - days from the day of the date hereof;
and I do covenant so to serve faithfully during
the said time; and so to serve at the rate of -
dollars per month for all such moneys as the said
C. D. has undertaken, or shall undertake, and be
obliged to pay at my request, for me and on rny
account, he, the said C. D., finding and provid-
ing for me during the said time, in board,
lodging, and washing, as is customary for ser-
vants.
In witness whereof, I have hereunto set my
hand and seal, this - day of - .
A. B. [Sra/.]
Bond or Obligation Several Persons,
Bound Severally for Several Amounts.
Know all men by these presents :
That we, A. B., of - , in the county of - ,
and State of - , and B. A. , of - , and E. F. and
G. H., of - , in said county, are severally and
respectively held and firmly bound unto C. D.,
of said - , in the respective sums following, viz. ,
the said A. B., B. A., and E. F. in the sum of -
dollars each, and the said G. H. in the sum of
. - dollars, good and lawful money of the United
States, to be paid to the saidC. D., his executors,
administrators, or assigns ; for which said sev-
eral payments, well and truly to be made, each
of them doth hereby bind himself, his heirs, ex-
ecutors, and administrators, severally and re-
spectively, but not jointly, nor one for the other,
firmly by these presents.
Seaied with our seals ; dated this - day of
The condition of this bond is, etc. (as in other
nuts).
Bond or Obligation Several PrOn
Severally, for Several Sums.
Know all men by these presents:
That A. B.,of , B. A., of , A. A..OT ,
B. B., of , and A. B. A., of , are severally
and respectively held and bound unto C. D., in
the respectivt sums following, viz., each of them,
the said A. B., B. A., A. A., B. B., in the sum of
apiece, and the said A. B. A. in the sum of
, to be paid to the said C. D., his heirs, etc.,
to which said several payments, well and truiy
to be made, each of them doth hereby bind a . 1
oblige himself, his heirs, etc., severally and re-
spectively, but not jointly, nor one for the other,
firmly by these presents.
Sealed, etc.
Bond or Obligation Unliquidated
Sum.
Know all men by these presents :
That I, A. B., of , merchant, am held and
firmly bound to C. D.,of said place, banker, in
all and every such sums and sum of money, as
already have been, or hereafter shall or may be
paid or advanced by him for me; and all such
sums of money, to pay which a liability or en-
gagement has been, or shall, or may be entered
into or incurred by him, the said C. D., by reason
or means of accepting or paying the drafts, bills,
or promissory notes of me, the said A. B. , or by
discounting for me other bills of exchange or
promissory notes, or by affording to me other pe-
cuniary assistance, together with lawful interest
upon the same, from the time or respective times
of paying or advancing the same; and also the
commissions and other charges according to law.
ful custom, to be paid to the said C. D., his exec-
utors, administrators, or assigns ; for which pay-
ment, well and truly to be made, I bind myself,
my heirs, executors, and administrators, firmly
by these presents.
Sealed with my seal ; dated this day of
. A. B. [Seal.}
Bond or Obligation Warranty Shall
be Kept.
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, 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, I do bind
myself, my heirs, executors and administrators,
firmly by these presents.
Sealed with my seal ; dated this day of
, A. D. .
Whereas the said A. B. , for the consideration of
dollars, to nim in hand paid, or secured to be
paid, did make, finish, and sell unto the said C.
D., a hot-air engine, with retorts, and appurte-
nances {or other article, as the case may be}, which
he has delivered and placed in the factory of said
C. D., which he has and hereby does, for himself,
his heirs, executors, and administrators, warrant
to be good in each and every respect, and to re-
main good and sufficient for the space of
years,
Now, therefore, the condition of the above obli-
gation is such:
That if the said engine, retorts, and appurte-
nances, or any part thereof, shall within the time
aforesaid prove defective or insufficient, in the
opinion of any three competent and disinterested
mechanics or engineers, then this obligation is to
be in full force, otherwise to be void.
' A. B. [Seal.]
Executed in presence of) C. D. [Seat.]
W. T., N. S. /
VARIOUS CONDITIONAL CLAUSES.
CONDITION BILL OF SALE.
From an Ownfr of Part of a Shift, that an Owner
of Another Part (Being Abroad) Shall Execute a
Bill of Sale thereof, the Other Owners of nil tkt
Other Parts Having- Executed the Same.
Whereas C. D., of, etc., owner of one-quarter
part of all that ship, called the S., burthe
BONDS OR OBLIGATIONS.
189
about five hundred tons, now lying at, etc.,
whereof A. B., of , owner of one other quar-
ter part of the said ship, the above-bound G. H.,
owner of one other quarter part; I. K., of, etc.,
owner of one-eighth patt of the said ship, by a
bill of sale, bearing date, etc., have bargained
and sold to the said L. M. their several shares in
the said ship, and the appurtenances, as by the
said bill of sale appears ; and whereas O. P. and
Q. R., of, etc., are owners of the other eighth
part of the said ship, and are made parties to the
said bill of sale, but, they being absent, the said
G. H. has undertaken with the said L. M. that
they shall duly execute said bill of sale, or other-
wise by some other deed, sufficiently convey the
said eighth part of the said ship, with the appur-
tenances, to the said L. M., and thereupon the
said L. M. hath paid to the said G. H. the sum
of , being the purchase-money for the said
eighth part ;
Now the condition of this obligation is such :
That if the said O. P. and Q. R., their exec-
utors, etc., shall within after the date above
written duly sign, seal, and execute the said bill
of sale to the said L. M., or otherwise, by some
other deed, duly executed, sufficiently convey the
said eighth part of the said ship, with the appur-
tenances, to the said L. M., and if, in the mean
time, the said L. M., or his assigns, shall quietly
hold the said eighth part of the said ship, with
the appurtenances, belonging to the said O. P.
and Q. R., without any denial or interruption by
the said O. P. and Q. R., or their assigns, or any
other person or persons whatsoever, then this
obligation shall be void, otherwise to be in full
force and effect.
CONDITION BILL OP SALE, BY PART OWNERS OP A
SHIP, ON SELLING THE SAME.
To Procure Bill of Sale from the Other Part Owner.
'Whereas the above-bounden A. B. has (or A.
B. and B. A. have), by bill of sale of even date
herewith, sold and assigned unto the said C. D.,
his share (or their several shares) in the ship or ves-
sel, called the S., and the appurtenances;
And whereas M. N., of , is owner of the
other part of the said ship or vessel, but, he
being absent, the said A. B. has (or A. B. and B.
A have) undertaken with the said C. D. that the
said M. N. shall duly execute a like bill of sale,
or otherwise by some other deed, sufficiently
convey the said part of the said ship, with
the appurtenances, to the said C. D., and there-
upon the said C. D. has paid to the said A. B.
the sum of dollars,, being the purchase-
money for the said part, to be conveyed by
said M. N.
Now, therefore, the condition of the above
obligation is such :
That if the said M. N., his executors, adminis-
trators, or assigns, shall within months after
the date above written, duly sign, seal, and exe-
cute such bill of sale to the said C. D., or other-
wise duly and sufficiently convey the said
part of the said ship, with the appurtenances, to
the said C. D.; and if, in the meantime, the said
C. D., his executors, administrators, or assigns,
shall quietly hold the said part of the said
ship, with the appurtenances, belonging to the
said M. N., without any denial or interruption
by the said M. N., or any other person or persons
whatsoever, then this obligation to be void and
of no effect; otherwise, to be and remain of full
force and virtue. [Signature and seal. \
CONDITION CONVEYANCE THAT A THIRD PERSON
SHALL CONVEY ON COMING OP AGE.
Whereas the above-bounden A. B. and one M.
N. are the heirs (or devisees) of one D. D., de-
ceased, and as such heretofore seized of certain
premises in the aforesaid, described as fol-
lows : (describing the premises) ; and whereas the
above-named C. D. has agreed with the said A.
B. and M. N. for the purchase of the said prem-
ises, for the sum of dollars ; but the said M.
N., not being yet of age, cannot now join in con-
veying the same to the said C. D. ; and whereas
the said C. D., at the request of the above-bounden
A. B. (and name surety, if any], and on his (or their)
promise and undertaking that the same M. N.
should, as soon as he shall have attained the age
of twenty-one years, at the proper costs and
charges of the said C. D., convey to the said C.
D., his heirs and assigns, his undivided interest
in and part of the said premises, has paid into the
hands of the said A. B. the whole of the said pur-
chase-money ; and the said A. B., by his deed of
even date herewith, has conveyed his undivided
interest in and part of the said premises, to the
said C. D., his heirs and assigns : Now the condi-
tion of this obligation is such, that if the said M.
N. shall within a reasonable time after he shall
have attained the said age of twenty-one years,
at the proper costs and charges of the said C. D.,
convey unto the said C. D., his heirs and assigns,
by such deeds and conveyances as the counsel of
the said C. D. shall advise, his undivided interest
in and part of the said premises, and that with-
out any consideration to be paid him by the said
C. D. for so doing ; and also if, and in case the
said A. B. (and name also surety, if any], his (or
their) heirs, executors, or administrators, shall in
the meantime, and until the said M. N. shall have
executed such conveyances as aforesaid, save,
defend, keep harmless and indemnified the said
C. D., his heirs, executors, and administrators,
and the said premises, and the rents, issues, and
profits thereof, of and from all claims and de-
mands to be made thereto, by or on the part and
behalf of the said M. N., then this obligation to
be void ; otherwise to remain of full force.
[Signatures and seals. ]
CONDITION COVENANTS FOR THE PERFORMANCE OP.
The condition of the above obligation is such,
that if the above-named A. B., his heirs, execu-
tors, and administrators, do and shall, well and
truly perform, fulfil, and keep, all and every the
covenants specified and contained in a certain in-
denture of, etc., bearing even date with the above-
written obligation, and made between, etc.,
which on the part and behalf of the said A. B.,
his heirs, executors, and administrators, is, are,
and ought to be, performed, fulfilled, and kept,
according to the true intent and meaning of the
same indenture ; then the above-written obliga-
tion shall be void ; otherwise, etc.
CONDITION To DELIVER LOST TITLE DEEDS WHEN
FOVND, ETC.
Whereas, certain title deeds and evidences of
title to premises heretofore occupied by the above-
bounden A. B., in the village of , in the State
of , have been lost or mislaid, not having been
recorded, and the said A. B. , upon conveying said
premises to C. D., by deed of even date with these
presents, agreed with him to save harmless, and
keep indemnified the said C. D., his heirs, execu-
tors, administrators, and assigns, against all per-
sons whatsoever, claiming any right or title to the
said premises or any part thereof, and all costs
and charges attending the same, until the said
title deeds and evidences of title shIl appear to
be found ; and also, that in case the said title
deeds and evidences to the said premises should
at any time hereafter be found, then the same
should be delivered to the said C. D., his heirs or
assigns, whole and uncancelled.
Now the condition of this obligation is such,
that if the said A. B., his heirs, executors, and
administrators, do and shall from time to time,
and at all times hereafter until the said title deeds
and evidences, forming a complete title to the
said premises, shall be found, save harmless, and
keep indemnified the said C. D., his heirs, exec-
utors, administrators, and assigns, of, from, and
against, all mortgages and other charges, and
incumbrances affecting the said premises, and
against all and every person and persons what-
soever, claiming any estate, right or title of, in
or to the same, or any part thereof; and, if such
title-deeds and evidences, or any of them, shall
at any time hereafter be found, if the same shall
be delivered up to the said C. D. , his heirs or as-
signs, in whole and uncancelled, without fraud
or other delay, then this obligation is to be void :
otherwise, to remain in full force.
[Signatures and teals.]
190
BONDS OU OBLIGATIONS.
CONDITION EXECUTK AN ASSIGNMENT.
The condition of the above obligation is such :
That if theabove-bounden A. B., his executors,
administrators, or assigns, on or before the
day of next, shall, upon the reasonable re-
quest, and at the proper cost and charges of the
said C. >., 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. (&<t/.j
CONDITION EXECUTE A QUIT-CLAIM DEED.*
The condition of the above obligation is such :
That if the above-bounden A. B. shall well and
truly make, execute, and deliver to the said C. D.
a deed of release and quit-claim of said A. B.'s
interest in (designating the property), and shall
suffer and permit the said C. D., his heirs and as-
signs, to peaceably occupy and possess said in-
terest, then this obligation is to be void ; other-
wise, to remain in full force.
A. B. {Seal.\
CONDITION GOODS, RETURN OP, OR THEIR VALUE.
Whereas the above-named C. D. and E. F.
have delivered to the above-bounden A. B. cer-
tain merchandise, consisting of (silks, velvets, and
other goods), to the value of dollars, to be by
him sold (by public sale forthwith, for ready money; :
Now the condition of this obligation is such :
That if the said A. B., his executors or admin-
istrators, shall, within next ensuing the date
hereof, return unto the said C. D. and E. F., or
either of them, their or either of their executors,
administrators or assigns, all such of the said mer-
chandise as shall then remain unsold (casualties
happening by fire, only, exccpted), and pay, or cause
to be paid, unto the said C. D. and E. F., or either
of them, their or either of their executors or ad-
ministrators or assigns, all such moneys as shall
have been by him then received for the merchan-
dise so sold (or the price of all such merchandise
which shall then have been sold), then this obligation
to be void ; otherwise, to remain in full force.
{Signature and seal.\
CONDITION ILLEGITIMATE CHILD, TO CONTRIBUTE
TO THE SUPPORT OP.
Whereas the said W. W. has made oath before
J. P., a justice of the peace in and for the said
town (or county) of , that the above-bounden
A B is the father of a male (or female) bastard
child, of which she has lately been delivered, and
the said A. B. has thereupon agreed to assist the
said W. W. in the support and maintenance of the
said child :
Now, therefore, 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 (or
the above-bounden A. B. and C. D., or either of them,
or their or either of their heirs, executors, or adminis-
trators), shall and do well and truly pay to the
said W. W., her executors, administrators, or as-
signs, towards the support and maintenance of
the said child, the sum of dollars and
cents per week, for each and every week from
the day of , during the term of years,
if said child shall live so long, then, etc. (a;
above).
CONDITION To INDEMNIFY ON PAYING A LOST BOND.
Whereas the above-named C. D., by his bond
or obligation under seal, bearing date on or about
the day of , became bound to the above-
bounden A B. in the penal sum of dollars,
conditioned for the payment of the sum of
dollars, unto the said A. B., his executors, admin-
istrators or assigns, on the day of (stating
it according to (Tie condition of the fast bond), as by
the said bond, when produced, will more fully
appear ; and whereas the said bond is alleged to
-This form only binds the obligor for what interest
be lost, so that the same cannot be found; and
whereas the said , at the request of the said
C. D., and on his promise of indemnity, has made
him full satisfaction of and for the said bond :
Now the condition of this obligation is such :
That if the above-bounden A. B., his heirs, ex-
ecutors or administrators, or any of them, shall,
in case the said bond or obligation be found, or
come to the hands or power of the said A. B.,
his heirs, executors or administrators, or any of
them, or to the hands, custody, or power of any
other person, deliver or cause the same to be de-
livered unto the said C. D., his executors or ad-
ministrators, in order to be cancelled, and also
shall and at all times indemnify and save harm-
less the said C. D.,his heirs, executors, and a>-
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 */ *<?. 267-269. v-i Salk. aoa; jo East. 264; i
must be a request on the one side and an as*ent
on the other ;? nor is this any more a contrail
if it be in writing than if spoken only. 1 The
assent must comprehend the whole of the prop-
osition; it must be exactly equal in its extent
and provisions, and must not qualify them by
any new matter. Thus, an offer to sell a cer
tain thing on certain terms, may be met by the
answer, " I will take that thing on those terms; "
and, if the proposition be in the form of a
question, as "I will sell you so and so; will
you buy ? " the whole of this meaning may h*
conveyed by the word "yes," or any other
simple affirmative answer. And thus a legai
contract is completed. But where the answer,,
either in words or effect, departs from the prop
osition, or varies the terms of the offer, or
substitutes for the contract tendered one more
satisfactory to the respondent, in these casei.
there is no assent, and no comract.
In general, some time must elapse between
an offer and its acceptance. But the proposer
may himself determine how long the offer shall
continue. He may say v I will give you an
hour, or, until this time to-morrow, or next
week, to make up your mind.* Then the party
to whom the proposition is made knows how long
the offer is to continue. He may avail himself
of the hour, the day, or the week given, for in-
quiry or consideration, or making the necessary
arrangements ; and if, within the prescribed
time, he expresses his assent (supposing the
proposition not in the meantime withdrawn),
he completes the contract as effectually as if he
had answered in the same way at the first
moment after the offer was made.' If an offerer
gives a day for acceptance, without considera-
tion for the delay, he may at any time, within
that day, before acceptance, recall his offer. So
he may if he gives no time. If he makes an
offer, and instantly recalls it before acceptance,
although the other party was prepared to accept
it the next instant, the offer is effectually with-
drawn. But acceptance before withdrawal
binds the parties, if made while the offer con-
tinues ; and the offer does continue in all cases,
either a reasonable time (and that only), or the
time fixed by the party himself. So, also,
where the proposition and reply are both made
by letter. b Thus, if A., in Boston, on the first
Stark. 164; i Younge & J. 227. w-Chitty Contr. (Ed.
1860) 284; Collyer Partn. \ 387. x-i Sumn. 218; 3
Johns. 534 ; 2 Woodb. & M. 359 ; 7 Johns. 470 . 4 Wheat.
Port. (Ala.) 605; 3 Cal. 147; 5 M. & W. 555 ; 10
E. L: & E. 473, S. C.; ii C. B. 954; 24 N Y. dc-
2*5 ; 9
473, S
Smith) 40; 3 Met. (Ky.) 80 ; 3 T. R'."i48 ; 23 Penn. St.
308. As sales at auction are clearly within the Statute
of Frauds, 7 East. 568; 2 B. & C. 945; 6 Leigh. 16;
the assent would not be binding unless in writing, if the
case come within the terms of that statute, y-s Bing.
N. C. 75. z-12 Johns. 190; 3 Id. 534; 7^.470; Noy.
ii Rol. Abr. 6 (M.) pi. i; 4 Watts. 48; 7 Cush 500:
?i E L. & E. 475; 16 E. L. & E. 470, S. C.; 8 Exch.
185 : 28 E. L. & E. 470, S. C.; 10 Exch. 610. n-Wnsht
vs. Bigg; 21 E. L. & E. 591. b-i B. & Aid. 681"; 3
Meriw. 441 ; 6 Hare, i ; i H. L. Cas. 381 ; 7 M. & W.
515 : i Foster (N. H.) 41 ; 4 Paige, 17; 12 Conn. 436 ;
6 Wend. 103; 14 Barb. 341, S. C.: i Kern. 441; 20
j Barb. 42; 4 Geo. i; 4 Wheat. 228; 7 Dana. 281; 9
Port. (Ala.) 605; 5 Pen*. St. 339; 9 How. 390; 8 C
i B. 295*
CONTRACTS.
199
day in January, writes to B., in Baltimore,
making an offer, and this letter reaches Balti-
more on the third, and B. forthwith answers
the letter, accepting tlie offer, putting the letter
into the mail that day ; and on the second of
January A. writes, withdrawing the offer, and
his letter of withdrawal reaches B. on the fourth,
there is, nevertheless, a contract made between
the parties. If the offer was to sell goods, B.,
on tendering the price, may claim the goods ;
if the offer was to insure B.'s ship, B. may
tender the premium and demand the policy,
and hold A. as an insurer of his ship. And so
of any other offer or proposition.
ASSIGNMENT. See that title.
ATTESTATION is the witnessing of an
instrument in writing at the request of the
party making the same, and subscribing it as a
witness* in order to prove the instrument i-f
necessary, and for the purpose of identification.*
In some cases instruments in writing, as assign-
ments, conveyances, etc., require attestation by
one or two witnesses.
AUCTIONS. See AGENCY ; > 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
<hey be each passed upon separately, and that a separate
memorandum be made of each item included in the
agreement.)
Alcoves.
Banking, about main and other buildings and fences,
Jtc.
Basement.
Bath Room.
Bay Windows.
Bells.
Blinds. Inside and outside.
Boarding. Rough.
Bolts. Chain and plain.
Bracing, Bridging.
Bronzes.
Burglar Alarms.
Cellars.
Chimneys.
Closets.
Cupboards.
Deadening.
Doors. Inside and outside.
Drains.
Drainage.
Dumb Waiters.
Fences.
Fountains.
Finish. Inside, outside.
Fire Alarms.
Flagging.
Floors.
Framing. Kind of materials and work.
Furring.
Gas-fitting.
Gutters and Conduct***.
Grading.
Halls.
Hardware.
Housing.
Labor.
Lightning-rods.
Locks.
Mantels.
Materials. Quantity, quality, damage to and by,
from shrinkage or other cause. Care and protection of,
from weather, by housing, priming, etc.
Out-houses.
Painting.
Partitions.
Pavements.
Pipes.
Plumbing.
Porches.
Position of main and other buildings.
Priming.
Rooms.
Sewers.
Screens.
Shingling, Slating, Tinning.
Sinks.
Sheathing.
Speaking Tubes.
Stairs.
Stories. First, second, third, walls, cross-walls,
sub-division walls, chimneys, materials for, etc.
Structure of main and other buildings.
Tiling.
Urinals.
Venetian Blinds.
Ventilation.
Walks.
Washstands.
Weather.
Windows.
Items omitted.
(Signed) A. B.
(Witnesses.) C. D.
Contract Building:.
Long Form.
This agreement witnesseth, etc.
That A. D. shall for the considerations herein-
after mentioned, on or before the day of
next, erect and finish for C. D., in a good, sub-
stantial, and workmanlike manner, the masons'
part of stores, on the lots and , in
street, in , agreeably to the several draw-
ings, plans, and specifications made by A. T.,
architect, and signed by the parties hereto.
That said work shall be done under the direc-
tion and to the satisfaction of said architect, or
such other architect in good standing, as said C.
D. shall select for that purpose, to be testified by
a certificate or writing, under the hand of said
architect.
That said A. B. shall find and provide such
good, proper, and sufficient materials of all kinds
whatsoever, as shall be requisite for completing
and finishing all the stone-masons', bricklayers',
brown-stone, blue-stone, and granite cutters',
excavators', and other works of the said build-
ings, mentioned in said specifications.
That said C. D. shall, in consideration of the
covenants and agreements of said A. B. being
strictly performed and kept, well and truly pay,
or cause to be paid to said A. B. the sum of
dollars, at the times and in the manner following :
(here give the amounts, conditions, and times of pay-
mental. When all said works are completely fin
ished, according to said drawings, plans, and
specifications, the remaining sum of dollars.
Provided, however, that in each of said cases a cer-
tificate be obtained and signed by said architect.
It is further agreed :
Additions, alterations, etc. Should the owner at
any time during the progress of said building request
any addition to, alteration of, deviation from, or omis-
sions concerning said agreement, the same shall be made
and shall in no way affect or make void said agreement,
but shall be added to or deducted from the amount of
said contract by a fair and reasonable valuation . Should
any dispute arise concerning the true value of the extra
work or works omitted, the same shall be valued by tw9
CONTRACTS.
competent persons, one selected by said owner and one
Vy said contractor, the two having power to choose an
smpire, whose decision shall be binding, conclusive, and
final.
Damages, loss, etc. Said owner shall not in any
manner be accountable or answerable for any damage
or loss that shall happen said works or any part thereof,
or to any of the materials or things employed in the pro-
gress or completion of said work (loss or damage by fire
[or other unavoidable accident] excepted).
Liens for labor or materials. Should any claim
or claims be made by any person or persons for work
done, or materials furnished for said building, upon the
employment, or alleged employment or purchase by said
contractor, and a notice of such claim be filed, to create
lien upon said building and premises, under any law
of the State, now or hereafter in force, said owner shall
be at liberty to retain in his hands, out of any moneys
which would otherwise be payable to said contractor,
the amount of such claim or claims, and the reasonable
amount of costs and expenses likely to occur by reason
thereof. Until such claim be lawfully cancelled or dis-
tharged (of record).
And said contractor shall cause all liens to be fully
and absolutely settled, cancelled, and discharged, with-
out loss, expense, or damage to said owner, and without
any delay in the progress of said work aforesaid ; and
so deliver over to said owner the same, free from all
claims and demands whatsoever.
Materials, labor, etc. Said contractor, at his own
costs and charges, shall provide all customary and ne-
cessary materials and labor, scaffolding, implements,
moulds, models, transportation, drayage, cartage, and
all accessories of every description for the due perform-
ance of the several erections in said drawings, plans,
and specifications set forth.
Should said contractor, at any time during the pro-
gress of said work, refuse or neglect to supply a suffi-
ciency of materials or workmen, then, upon three days'
notice being given, said owner shall have power to pro-
vide materials and workmen, and finish said work, and
the expense thereof shall be deducted from the amount
of said agreement.
The specifications, plans, and drawings are in-
tended to co-operate, so that the work exhibited in the
plans or drawings, and not mentioned in the specifica-
tions, or vice versa, are to be executed the same as if
it were mentioned in the specifications and set forth in
the plans and drawings, to the true meaning and inten-
tion of said drawings and specifications.
Said specifications, plans and drawings shall be strictly
adhered to by said contractor, subject only to the ex-
ceptions in this agreement above mentioned.
Should any dispute arise respecting the true construc-
tion of said specifications, plans, or drawings, the same
shall be decided by said A. T., or such other architect
in good standing as said owner shall appoint to oversee
said buildings, and his decision shall be conclusive and
final.
In witness, etc
Contract Building;.
Short Form With Liquidated Damages, etc.
This agreement, made this day of , A.
D. , by and between A. B. (of , farmer), of
the first part, and C. D. (of , builder), of the
second part, witnesseth :
The said party of the second part agrees to and
with said party of the first part, to make, erect,
build, and finish, in a good, substantial, and work-
manlike manner, on lot , in street , in
county, , one (brick, stone, or frame) house,
Itgreeable, and according to the plan, draft, and
explanation hereto annexed, of good and substan-
tial materials (or of such materials as said party of
the first part may furnish therefor), on or before the
day of , A. D. .
That the said party of the first part agrees to pay
unto the said party of the second part for the same
the sum of dollars, as follows : dollars,
when, etc. f giving time or progress of work),
dollars, when, etc.
(I/ the owner is to furnish materials, add :) And
also that he will furnish the necessary materials
for said work in such reasonable quantities, and
at such reasonable times as said party of the sec-
ond part shall require.
And for the performance of the above cove-
BanU, th said parties bind themselves, each to
the other, in the um 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. A. B.
[Witnesses.] C. D.
Contracts-Building.
Short Form According to Plan Annexed.
This agreement, etc., witnesseth :
That A. B., for the consideration hereinafter
mentioned, shall, within the space of , next
after the date hereof, in a good and workmanlike
manner, and according to the best of his art and
skill at , well and substantially build, finish,
erect, and set up one dwelling house, according
to the drawings, plans, and specifications here-
unto annexed.
That the dimensions of said dwelling shall be
as follows : (giving them).
That said dwelling shall be composed of mate-
rial as follows : (describing it minutely and at length).
That all said materials shall be furnished by
said ; or,
That A. B. shall, at his own costs and expense,
provide the following materials for the construc-
tion of said building : give items).
That C. D. shall, at his own costs and expense,
provide the following materials for the construc-
tion of said building : (give items i.
That all further and other materials customary
and necessary in the construction and completion
thereof shall be furnished by and at the costs and
expense of .
That C. D., in consideration of the premises)
shall pay said A. B. the sum of dollars, a;
follows :
First payment. When, etc.
Second payment. When, etc.
Etc., etc.
Final payment of the remaining sum of - dol
lars, in full for all said work, when said building is cott
plete for occupancy.
In witness, etc.
Contract Building 1 .
Short Form According to Plans Annexed.
Articles of agreement made and concluded tV
day of , between A. B., of , and C. D.,
of , as follows, viz.:
The said A. B., for the considerations herein-
after mentioned, covenants, promises and agrees
that he will, within the space of six months from
the date hereof, in a good and workmanlike man-
ner, and according to his best art and skill, well
and substantially erecf and build, set up, and fin-
ish one dwelling (or store) house, on. lot number
, on street, in the town of , and in
such place thereon as said C. D. shall direct, and
according to the plans and specifications here-
unto annexed.
The dimensions of said house to be as follows,
viz.: (describing theni).
The said house to be composed of such stone,
brick, and other materials, as said C. D. shall
furnish.
In consideration whereof, said C. D. covenants,
promises, and agrees, well and truly to pay, or
cause to be paid to said A. B., the sum of one
thousand dollars, in the manner following, viz.:
Two hundred dollars, part thereof, when the
foundations and cellar of said building are com-
pleted.
Two hundred dollars, part thereof, "when the
roof of said building is completed.
Two hundred dollars, part thereof, when said
building is enclosed.
The remaining four hundred dollars when said
building is fully completed and keys thereof de-
livered to said C. D.
And for the true performance of all and every
covenant, promise, and agreement aforesaid, said
parties each binds himself unto the other in the
penal sum of dollars, firmly by these present*.
In witness whereof, etc.
Contract Building 1 *
For Bricklaying and Plastering.
This agreement, etc., witnesseth :
That A- B., for the consideratipns hercinaftei
CONTRACTS.
229
mentioned, shall, in a good, sufficient, and work-
manlike manner, at his own cost and charge,
with materials to be furnished by C. D., do and
perform all the work and workmanship belong-
ing to the bricklayer and plasterer, in and about
the erecting and building of a good and substan-
tial dwelling (or store) house, on lot No. , on
street, in , etc.
That said A. B. will build the same in such
manner, and with such thickness of walls,
height or stories, and such or so many lights,
chimneys, and conveniences, and in such man-
ner, and will execute and perform such ornamen-
tal work about said building as s>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<n of -
dollars.)
260
CONTRACTS.
Approval by Counsel.
That if the counsel of said C. D. shall not approve of
the title of said A. 13. to said premises, this agreement
shall be void.
Approval by Counsel and Approval by Buyer on
View, etc.
That in case the counsel of said C. D. shall not approve
of the title of said A. B., or in case said C. D., on his
view thereof, will not proceed in the purchase thereof,
and shall within one month from the date hereof give
notice in writing to said A. B. that he will not purchase
said premises, then, and in either case, these presents
shall be absolutely void, and said A. B. shall, within
months next ensuing, repay or cause to be re-
paid unto said C. D. said sum of dollars, paid as
aforesaid, together with legal interest for the same
from the date of its payment until the date of its repay-
BMBL
Delay or Default of Either Party.
That if by reason of any delay, default or neglect on
the part of said A. B. or his counsel or agents, said
conveyance is not ready and tendered to said C. D. on
or before said day of , said A. B. shall pay
and allow to said C. D. interest for said sum of
dollars, to be computed from the day of ,
mntil the day of .
That if by reason of any delay, default or neglect on
the part of said C. D., such conveyance shall not be
executed on or before the day of , then no
such interest shall be paid or allowed by said A. B.
during the time of such delay.
Fire.
That in case any of the buildings upon said premises,
ot any part thereof, shall be damaged or destroyed by
fire, the same shall be repaired or rebuilt as soon there-
after as possible, and that in the meantime said A. B.
shall pay the sum of dollars, in lieu of said C. D.
being deprived of the use thereof, and the damage occa-
sioned in such repairs or rebuilding.
Insurance.
That said A. B. shall, in the meantime, keep said
buildings fully insured in good and responsible insurance
companies, and upon the execution of said conveyance
to assign all policies of insurance to said C. D., and
failing so to insure, said C. D. may effect such insur-
ance, deducting all costs and charges therefor from said
last named payment.
Non-performance by One Releases the Other.
That if either party shall neglect to perform his or
their parts of the covenants and agreements herein con-
tained, then and in such case the other party shall in no-
wise be obliged to perform his covenants and agree-
ments or any of them herein contained, but shall at his
own option be fully discharged from the same.
Purchase Money, etc.
That said C. D., upon the execution of said convey-
ance according to the true intent of this agreement,
shall pay or cause to be paid unto said A. B. said sum
of dollars in full, for the purchase of said premises ;
Or,
That said C. D. may retain out of said purchase
money the sum of , for the purpose of paying off
the sum of , secured by a mortgage on said prem-
ises given by said A. B. to one E. F., bearing date the
day of , when said sum shall become due by
virtue of the terms of s&id mortgage.
Title Proving Defective, etc.
That in case the said A. B. cannot make out a good
title to, and execute a good and valid conveyance of
said premises, on or before the day of , then
said (naming the right secured), and every part there-
of, shall remain a security to said C. D. for the repay-
ment of said sum of dollars paid as aforesaid, to-
gether with lawful interest thereon until the repayment
thereof.
That in addition thereto, all rents as said C. D. shall
have received out of said premises shall be allowed by
said A. B. in part payment of the same and interest.
Waste and Underletting.
That said C. D. shall not in the meantime cut down
any timber or trees, or commit any damages or waste
whatever, in or upon any part of said premises, or
suffer the same to be done, nor grant any new leases of
said premises or any part thereof, without the consent
of sid A. B. or his legal representatives in writing.
Contract Hale.
Stack and Good-will with. Restraint.
This agreement, etc., witnesseth :
That said A.B. , for the consideration hereinafter
mentioned, shall sell to said C. D. all the stock
of goods, wares and merchandise belonging to
said A. B., now in the store, occupied oy him
in , together with all furniture and fixtures
thereunto appertaining, and also all goods, wares
and merchandise bought or contracted for by
said A. B., and intended for said store, together
with the good-will of the business heretofore
carried on there by said A. B.
That said stock of goods, wares and merchan-
dise shall be inventoried by said A. B. at its
original cost, and excluding all costs fur carriage
or transportation, and making deduction for de-
preciation in value from damage, wear, tear or
other causes. That all the furniture and fixtures
shall be inventoried at their fair cash value.
That said inventory shall be completed within
days from the date hereof, and the property
above specified thereupon immediately delivered
to said C. D.
That said A. B. shall not, at any time hereafter
within from said place of business now
occupied by him, engage directly or indirectly,
either as agent, principal, servant, or otherwise,
in carrying on, conducting, or being interested in
said business of .
That said C. D., in consideration thereof, shall
pay said A. B. the sum of dollars, as follows:
dollars upon the delivery of said goods,
wares, merchandise, furniture and fixtures.
dollars on the day of next, in full
payment therefor, which sum shall be secured
by the promissory note payable at , and bear-
ing interest at the rate of per cent, per
annum, from date, until paid.
Contract Sale.
Shares of Stock in Corporation.
This agreement, etc., witnesseth :
That said A. B. shall sell and convey to said
C. D., on or before the day of next, on't
hundred shares of the capital stock of the *
company, now owned and held by said A. B. ,
and standing in his name on the books of saiil
company, and to execute unto said C. D. all as-
signments, conveyances and transfers necessary
to assure the same to him, his heirs and assigns.
That said C. D., in consideration thereof, shall
pay unto said A. B. for each and every share of
said stock the average market price of the same
for and during twenty days preceding the
day of aforesaid, to be determined by the
sales made at the board of brokers in the city
of .
In witness whereof, etc.
Contract Sale.
Shares of Stock in a Corporation.
This agreement, etc., witnesseth :
That said A. B. shall sell, transfer and convey
to said C. D., on the day of , one thou-
sand shares of the , now owned by said A. B.,
and standing in his name on the books of said
company, and to execute and deliver to said C.
D. all necessary assignments, conveyances and
transfers concerning the same.
That said C. D. shall pay said A. B. therefor,
dollars for each share of said stock, on the
day of next.
In witness whereof, etc.
Contract Sale.
Timber Growing.
This agreement, etc., witnesseth :
That said A. B. , for the consideration herein-
after mentioned, shall sell unto said C. D. all
and singular the timber-trees and other trees,
being upon a certain tract of land in , and
bounded as follows (stating the bounds'), all of
which are marked with the letter "T," and being
of the kind and number as follows :
One hundred white oak trees, marked with the
letter "T."
One hundred and thirty trees, etc.
That said C. D. shall, between the day of
, and the day of next, have authority
CONTRACTS.
261
by himself or servants to fell said trees, and to
lay and place barks of said oak-trees upon said
premises to dry.
That said C. D. shall have full liberty to carry
off said wood, trees, boughs, lops and tops of the
whole of said wood in the usual manner, and
without interruption during said time.
That said C. D. shall have full authority and
liberty, by himself, or servants, agents, or work-
men, and other persons to whom he may sell
said timber and wood, etc., to dig sawpits, and
break up and saw said timber into convenient
lengths for removal or use during said time.
That said C. D., in consideration thereof, shall
pay said A. B., or his legal representatives, the
sum of dollars, in the manner following, viz.
(giving terms, times, and amounts of payments].
That said C. D. shall mend and repair all fences,
hedges, and enclosures, and all places broken or
otherwise damaged or destroyed in felling, hew-
ing, or carrying away said timber, etc., within
the time limited as aforesaid.
In witness, etc.
Contract Sale.
Trees Fruit.
This agreement, etc., witnesseth:
That said A. B. shall sell and deliver to said C.
D., at his dwelling-house in , one thousand
apple trees, three hundred peach trees, two hun-
dred plum trees, one hundred pear trees, etc., all
in good order for transplanting, in the month of
May next, at the following prices, to wit:
For each hundred apple trees, twenty dollars.
For each hundred peach trees, fifteen dollars.
Etc., etc.
That said C. D., in consideration thereof, agrees
to purchase said trees in the quantities and for
the prices aforesaid, and to pay said A. B. the
pi ice therefor in cash upon the delivery of said
to ees.
In witness whereof, etc.
Con tract Sale.
Vessel Enr oiled.
This agreement, etc., witnesseth :
That said A. B., owner of the brig or vessel
ailed the " Dolphin," of four hundred tons bur-
tnen, or thereabouts, in consideration of the sum
of dollars, lawful money of the United States
of America, to me paid before the delivery of
these presents, the receipt of which is hereby
acknowledged, does by these presents bargain,
sell, and convey said brig or vessel, together with
the anchors, boats, bowsprit, cables, masts, sails,
and. all other accessories, appurtenances, neces-
saries, and paraphernalia thereunto belonging, or
in anywise appertaining, to said C. D.
That the certificate of enrolment of said brig
or vessel is as follows (here copy tke certificate).
That said A. B. shall warrant and defend said
brig or vessel, and all the above-mentioned acces-
sories, appurtenances, necessaries, and parapher-
nalia against the claims of all and every person
or persons whomsoever.
In witness whereof, etc.
Contract Sale.
Wheat.
This agreement witnesseth :
That A. B. shall, at his own cost and expense,
deliver to C. D., at , on or before the day
of , five hundred bushels of good, clean, and
merchantable wheat.
That said C. D. shall, within three months after
such delivery, pay unto said A. B. the sum of
(per bushel) therefor. (Signed) A. B.
Dated . C. D.
Contract Sale.
Meat.
This agreement, etc., witnesseth :
That said A. B. has this day of , sold to
C. D. bushels of good, clean, merchantable
winter (or spring) wheat fof the first (jtiality), to be
delivered to said C. D. free of all charges or ex-
pense whatsoever, at , on or before the
day of .
That said C. D. shall pay or cause to be paid to
said A. B. therefor within days for months)
from such delivery, the sum of dollars.
la witness whereof, etc,
Contract Sale.
Of Wood or Stone.
This agreement, etc., witnesseth :
That said A. B., for the consideration herein-
after mentioned, shall sell to said C. D. five hun-
dred cords of seasoned maple and hickory cord-
wood, and deliver and securely pile the same on
the left bank of the river (or canal) Immedi-
ately east of the bridge, in the town of
(or one thousand perches of good quarry-stone suitable
for building, and deliver and cord the same on the
south side of the vacant lot, No. , on street, in
the town of ).
That said C. D., in consideration thereof, shall
pay said A. B. the sum of for each and every
cord (or perch) aforesaid, upon the complete and
final delivery thereof.
In witness whereof, etc.
Contract Security.
Change of Mortgage Security.
This agreement, etc., witnesseth:
That said A. B. has this day conveyed to said
C. D., E. F., and G. H., by warranty deed, ten
acres of land situate on the southeast corner of
Front and Eighth streets, in the town of , for
the consideration of one thousand dollars.
That in order to secure the payment of eight
hundred dollars in eight annual payments, with
interest, from this date, said C. D., E. F., and G.
H. have executed to said A. B. a mortgage upon
said premises.
That said C. D., E. F., and G. H. intend to di-
vide said premises into town lots, and sell and
dispose of the same.
That said C. D., E. F., and G. H., and their
legal representatives, shall at all times hereafter
have the right of changing the security above
mentioned by substituting instead of the same,
or of any part thereof, the like security on other
real estate of at least equal value.
That upon said substitution said A. B., or his
legal representative, shall, upon request, forth-
with execute and deliver said C. D., E. F.,and
G. H. good and sufficient releases, discharging
said mortgage, or the lien upon any portion of
the premises therein described
In witness, etc.
Contract Shipping Seamen.
Articles of Agreement between Master and Seamen
in the Merchant Service of the United States, re-
quired by Act nf Congress approved yune Tth, 1872.
Any erasure, interlineation, or alteration in this agree-
ment will be void, unless attested by a shipping com-
missioner, consul, or vice-consul, to be made with the
consent of the persons interested.
United States of America.
U. S. Shipping Commissioner for the Port of .
Office at No. Street.
It is agreed between the master and seamen, or
mariners, of the , of which is at present
master, or whoever shall go for master, now
bound from the port of to (here the zvyae-e is to
fie described, and the places named at "which the ship
is to touch, or, if that cannot be done, the general na-
ture and probable length of the voyage is to be stated,
and the port or country at 'which the voyage is to ter-
minate.
Scale of Provisions to be allowed
and served out to the crew during the voyage, in addi-
tion to the daily issue ofli me and lemon juice and sugar,
or other anti-scorbutics in any case required by law.
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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
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per
Month.
per
Run.
a.
3.
1
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8
1C
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$
c
i.S.
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a. M.N.
3. Etc.
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,
Advance
Wages.
II II
HI
&^
Money
Advanced
Abroad.
*
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E>s. $ | c
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Place and
Time of Entry
.2 c o u
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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 n<n.
Recording in the office of the recorder of deeds of the
county wh. re the land is situated, after acknowledgment
or proof, is absolutely necessary to their validity ns
against subsequent purchasers, or mortgagees in god
faith, for value, and without notice.
a-R. S. 1881, \ 2928.
CONVEYANCES.
Seals are not required.
Witnesses are unnecessary.
See INDIANA FORMS, ante ; GENERAL FORMS, post.
KANSAS.
Forms printed and sold by Geo. W. Crane, Topeka,
Kansas.
Conveyances of real estate or any interest therein
must be in writing, and are in forms as given below.
Corporations execute conveyances under their cor-
porate seal.
Married women should join their husbands in the
conveyance of real estate ; but this is not necessary if <u
the time of executing the conveyance she has never been
resident of the State. Separate examination is not
Mquircd nor customary.
Recording in the office of the register of deeds of the
ounty in which the lands are situate is necessary to im-
.part notice to creditors, subsequent purchasers, and
mortgagees in good faith, for value, and without notice.
Seals are abolished.
Witnesses are unnecessary.
Conveyance General Warranty Deed.
This conveyance, made this day of , A.
D. , between A. B. and W. B. his wife, 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 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
all and singular the tenements, hereditaments,
and appurtenances thereunto belonging, or in
anywise appertaining, forever.
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 deliv-
ery of these presents that he was lawfully seized
in his own right of an absolute and indefeas-
ible estate of inheritance, in fee simple, of and
in all and singular the above granted and de-
scribed premises, with the appurtenances ; that
the same are free (clear, discharged, and unincum-
bered, of and) from all (former and other grants, titles,
charges, estates, judgments, taxes, assessments, and)
incunibranc.es 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.
In witness whereof, the said parties of the first
part have hereunto set their hands, the day and
year first above written. A. B.
W. B.
For form of ACKNOWLEDGMENT, see that title.
Conveyance Special Warranty Deed.
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 presents
grant, bargain, sell, and convey unto said party
f the second part, his heirs and assigns, all his
right, title and interest only in the following de-
scribed real estate, situated in the county of ,
and State of , 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, or in
anywise appertaining, unto the said party of the
second part, his heirs and assigns, forever ; and
said parties of the first part, for themselves, their
executors, or administrators, <} hereby
covenant, promise, and agree, to and witri said
party of the second part, his heirs and assigns,
that they will warrant and forever defend said in-
terest, the within granted and described prem-
ises, with the appurtenances, against the claims
of all persons claiming or to claim by, through,
or under themselves (and themselves) only.
In witness whereof, the said parties of the first
part have hereunto set their hands, the day and
year first above written. A. B.
W. B.
For form of ACKNOWLEDGMENT, see that title.
Conveyance General Warranty Deed.
By Attorney.
This conveyance,.made this day of , A.
D. , by A. B., of the 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 as-
signs, all the following described real estate, sit-
uated 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 any-
wise appertaining, unto the said party of the sec-
ond part, his heirs and assigns, forever. And
said (party warranting), for himself, his heirs, ex-
ecutors, 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 appur-
tenances; that the same are free (clear, discharged,
and unencumbered, of and) from all (former and other
grants, titles, charges, estates, judgments, taxes, assess-
ments, and) incwmbrances, of whatever nature or
kind soever; and that he will warrant and for-
ever defend the same unto said party of the sec-
ond part, his heirs and assigns, against said party
of the first part, his heirs, and all and every per-
son or persons whomsoever, lawfully claiming or
to claim the same.
In witness whereof, the said party has hereunto
set his hand, the day and year first above written.
A. B.,
By A. A., his attorney in fact.
For form of ACKNOWLEDGMENT, see that title.
Conveyance Quit-Claim Deed with
Warranty.
This conveyance, mad 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,
situated 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
administrators, does hereby covenant, promise*
and agree, to and with said party of the second
part, his heirs and assigns, that he has not made v
done, committed, executed, or suffered any act or
acts, thing or things, whatsoever, whereby or by
means whereof the within granted and described
E remises, or any part thereof, now are incum-
ered in any manner whatsoever.
In witness whereof, tha said party of the first
part has hereunto set his hand, the day and yeai
fjrst above written. A. B,
for form Of ACKNQWLBPGMENT, see that title.
CONVEYANCES.
279
Conveyance Trust Deed with War-
ranty.
This conveyance, made this day of , A.
D. , 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. p.,
of county, in the State of , of the third
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 successors and assigns, all
the following described real estate, situated in
the county of , and State of , to wit : (de-
SL rite it ).
To have and to hold the same, together with all
nd singular the tenements, hereditaments, and
appurtenances thereunto belonging, or in any-
wise appertaining, forever, in fee, in trust, never-
theless, and to and for the uses, interests, and
purposes hereinafter limited, described, and de-
clared that is to say, in trust, to (state the pur-
poses, etc. )
And said party of the first part does hereby
covenant, promise, and agree that the within de-
scribed premises are free, clear, and discharged
of and from all incumbrances, of whatever nature
or kind soever ; and that he will warrant and for-
ever defend the same unto said parties of the sec-
ond and third parts, their successors and assigns,
against said party of the first part, his heirs, and
all and every person or persons whomsoever,
lawfully claiming or to claim the same.
And the said party of the second part covenant
faithfully to perform and fulfil the trusts herein
created.
In witness whereof, the said parties have here-
unto set their hands, the day and year first above
written. A. B.
E. F.
C. D.
For form of ACKNOWLEDGMENT, see that title.
Conveyance Executor's or Adminis-
trator's I>eed.
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.
(<M above).
M \SII1 X.'TOX.
Conveyances of realty, or interest therein, must be
by deed in writing, signed by party bound thereby and
acknowledged by party making it. See forms referred
to below.
d-Code 1849, P- 53, Ch, 117, g i. ?-Code 503, \ ?.
Acknowledgment. See that title, ante.
Dower is relinquished and barred by the wife joining
the husband in the conveyance.
Married women must be separately examined.
Recording is necessary to render the conveyance
valid against subsequent bona fide purchasers, etc.,
without notice.
Witnesses. Two are necessary.
WEST VIRGINIA.
Conveyances 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 joining
her husband in the conveyance.
Married women need not be examined separately
and apart from their husbands.
Recording in the office of the clerk of the county
court is necessary to render the conveyance valid against
subsequent bona fide purchasers or creditors without
notice.
Seals. A scroll is sufficient.
Witnesses are not necessary.
See VIRGINIA FORMS, above, and GENERAL FORMS,
post.
WISCONSIN.
Conveyances, etc., of any estate or interest in real
Croperty must be in writing, etc. See forms referred to
elow.
Acknowledgments. See that title, ante.
Dower is released and barred by the wife joining in
the conveyance with her husband.
Married women, whether by their sole deed or by
joining with their husbands to convey their estate or
dower, execute the conveyance the same as though they
were unmarried. No separate examination is necessary.
Recording in the office of the register of deeds in
the county where the land is situated is necessary to
render the conveyance valid against subsequent bona
fide purchasers, etc.
Seals. A scroll is sufficient.
Signature of the grantor is necessary, in the pres-
ence of two witnesses, who must subscribe their names
in attestation thereof.
See OHIO FORMS, above, and GENERAL FORMS, post.
WYOMING.
Conveyances of lands or any interest therein must be
in writing, etc. See forms referred to below.
See Acknowledgment, ante.
Dower and Courtesy abolished.
One witness enough. Private seals abolished, except
corporation seals. Wife must join husband to deed or
mortgage homestead. Wife must sign and acknowledge,
freely and voluntarily, and separate and apart from
husband, and must be fully apprised by official of con-
tents and her rights and effect of signing.
Recording necessary, to protect against subsequent
purchasers.
CONVEYANCES VARIOUS DETAILS.
Introductions in Deeds and Other
Conveyances.
The introduction to a conveyance, deed, mortgage,
etc., is called the " Testatum " clause. See text above .
A. B. (or A. B. and W. 13. his wife) conveys, etc.
I (or we, A. B., of , and W. B. his wife), for a
consideration, etc., convey, etc.
This conveyance (or deed, or indenture, bipartite,
tripartite, quadripartite, etc., or mortgage, etc.), wit-
nesseth.
That, etc.
This conveyance (or deed, etc.), made this
day of , witnesseth : ,
That, etc.
This conveyance (or deed, etc.), made this
day of , by A. B., of , to C. D., of ,
witnesseth :
That, etc.
This conveyance (or deed, etc.), made this
day of , in , by A. B., of county, in the
State (or Commonwealth) of , farmer, to C. D.,
f-Code 503, \ 7. g-i Munf. 487 ; z Leigh. 488. Il-Codo
$3 <$ 10-15. i-ij Gratt. 653. J-Code 503, g 5.
CONVEYANCES.
of county, in the State (or Commonwealth) of
, merchant, witnesseth :
That, etc.
Know all men by these presents :
That this conveyance, 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 granted,
bargained, and sold, and does by these presents
grant, bargain, sell, and convey unto C. D., of
, etc.
This conveyance (or deed, etc.), made and en-
tered 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.
In trust, etc.
To all to whom these presents may come greet-
ing (or To all whom it may concern) :
Know ye :
That this conveyance (or deed, etc.), 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 do-
ing business under the firm-name and style of the
D., F., H. manufacturing company, of the
second part, witnesseth :
That, etc.
Premises in Deeds mid Oilier Convey-
ances.
i. STATEMENT OP PARTIES.
"A. A., assignee of the estate and effects of B.
I., of , bankrupt (or insolvent)," etc.
" The , a company (or, corporation) created
and existing (or, organized and doing business) under
and by virtue of the laws of the State of (or,
an act of the legislature of the State of , entitled 'An
act,' etc., reciting the title)."
"A. R., administrator of the estate and effects
of D. D., deceased, of ," etc.
"A. R., administrator of all and singular the
goods and chattels, rights, credits, and effects of
D. D., late of , deceased."
" E. X., executor of the last will and testament
of D. D., of , deceased," etc.
" G. N., guardian of the person and estate of I.
D., minor heir of D. D., of , deceased," etc.
"A. B., C. D., and E. F., of , in , part-
ners, doing business ('as ) under the firm-name
and style of A. B. & Co."
"R. R., receiver in the matter of A. B. vs. C. D.,
in the court of ."
" T. R., trustee of (state what)."
2. RECITALS FOR EXPLANATION.
This may include consideration, a statement of the
condition of the estate, or any particulars concerning
the derivation of title or material fact respecting it, or
of any other matter requiring explanation upon the face
f the deed.
Title fiy Administrator.
And whereas, A. K. , administrator of the estate
and effects of D. D., of , who died intestate,
by virtue and in pursuance of an order of the
court for the sale of the real estate of the said in-
testate, by (conveyance, deed, or, indentured, under
the hand (and seal) of said administrator, bearing
date the day of , for the consideration
therein mentioned did (grant and confirm, or, sell
and convey) unto E. F., his heirs and assigns, all
the above mentioned and described tract of
acres (and allowance aforesaid), with the appurte-
nances :
To have and to hold the same forever, as, in,
and by the last recited (conveyance, deed, or, inden-
ture, recorded in the office of , in county, in
, Record E, page ), relation (or, reference)
being thereto had, appears.
Recital Title by Attorney.
And whereas, said C. D., by his attorney, A. A.,
(by letter [or, power] of attorney, under his hand and
seal bearing date the day of ) did by (convey-
ance, deed, or, indenture) bearing date the day
of , for the consideration therein mentioned,
grant and confirm (or sell and convey) unto E. F.,
his heirs and assigns, all that tract and parcel of
acres of land with the appurtenances:
To have and to hold the same forever, as in and
being thereto had, appears.
Recital Title by Executors.
And whereas said E. X. and T. R., executors
of the last will and testament of said D. D., de-
ceased, by virtue of the authority and power to
them given by said will, and pursuant to the
directions thereof, did, by conveyance under their
hands and seals, bearing date the day of ,
and for the consideration therein mentioned,
grant and confirm unto E. F., his heirs and as-
signs, all the saM tract of acres, with the
appurtenances :
To have and to hold the same unto him, his
heirs and assigns forever, as in and by said recited
conveyance (recorded in the office for the recording
of deeds, at , in , in book , page ), re-
lation (or, reference) being thereto had, appears.
Recital Title by Deed.
It being (the same, or, a part of the same) premises
which M. M., and W., his wife, by conveyance
(deed, or, indenture), bearing date the day of
, and for the consideration therein mentioned,
did convey and confirm unto said A. B., his heirs
and assigns forever, as in and by the said (in part)
recited conveyance (recorded in the office for the
recording of deeds, in , in county, in book ,
page ), relation (or, reference) being thereto had,
more fully and at large appears.
Recital Title by Deed, Descent, and Patent.
It being the same tract which the State (or,
commonwealth) of , by patent, bearing date the
day of (recorded in the land office of said
State [or, commonwealth], in patent book , page
), for the consideration therein mentioned, did
convey and confirm unto A. in fee, who being
thereof lawfully seized, died intestate, leaving
issue B. and W., who intermarried with C., to
whom the same by the laws of said State (or
commonwealth) did descend and come. And said
B. and C., and W., his wife, by their joint con-
ctliu wuilllllll UIILU aaiu n. j_>. 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 ><i).
Whereas, the court, at its term, holden
at . in , on the day of , did em-
power and order me to sell, and to make, execute
and deliver good and sufficient deeds, conveying
so much of the real estate of the said intestate as
should amount to the sum of dollars, for the
payment of the just debts of said intestate, with
the actual and necessaiy incidental costs and
charges;
And whereas, having given the bond and taken
the oath required by law, and given public notice
of the time and place of the sale of the real estate
hereinafter described (hy an advertisement thereof
published for consecutive weeks, beginning on the
day of , in the newspaper, published and
of general circulation in county), I have sold said
real estate to E. F., of , for the sum of
dollars, which was the highest sum bid therefor
at the public sale thereof on the day of ,
at , in :
Now, therefore, etc. (as m the second preceding
form}.
Coiivoynnre Assignment
See titles ASSIGNMENT and CONTRACTS, ante.
Conveyance Attorney in Fact.
See forms in various States, ante.
This conveyance (or deed, etc.), made this
day of , by A. B., of , of the first pait, by
A. A., his attorney in fact,* to C. D., of , of
the second part, witnesseth :
That, etc. (as in the ordinary forms).
In witness whereof, said party of the first part
has hereunto, by A. A., his attorney in fact, set
his hand (and seal), the day and year first above
written. A. B., by A. A.,
his Attornty in Fait.
Or the following may be substituted :
In witness whereof, said A. A., in pursuance of
the letter of attorney hereunto attached (or a copy
of which is hereunto attached), bearing date the
day of , has hereunto set the hand (and seal)
of his said principal (this day of ), on the
day and year first above written.
A. B.,6yA.A,
his Attorney in fact.
For form of ACKNOWLEDGMENT, see that title.
The following may be inserted at the * if desirable :
* Specially constituted by power of attorney,
bearing date the day of , and recorded in
the office for the recording of deeds in county,
State of , in deed book , page , as by
reference thereunto had appears.
Conveyance Bond for Deed.
See title BONUS, ante.
Conveyance Commissioners' Deed.
On Sale in Partition.
This deed (or indenture), made this day of
, A. D. , between C. O., of , in the
county of , and State of , M. S. , of the
same place, and R. S., of , in said county, of
the first part, to S. P., of aforesaid, of the
second part.
Whereas, in proceedings duly taken and had in
the court of , by and between P. A., R.
T.,andN. N., for the partition and division of
certain premises mentioned in the petition in said
proceedings, according to the respective rights
of the parties interested therein, or for a sale of
such premises, if partition thereof could not be
made without prejudice to the owners, pursuant
to the statute relating to the partition of lands
owned by several persons, it was by the said
court ordered, adjudged and decreed, by an order
made on the day of , at , that a sale
of the said premises should be made in order to
a division of the proceeds, according to the several
rights and interests of the said parties ; and
thereupon to make such partition, the parties of
the first part to these presents being qualified,
were, by the said court, appointed commis-
sioners;
And whereas, such proceedings were after-
wards had in the said court upon the said peti-
tion, that the said commissioners so appointed,
as aforesaid, were, by a rule of said court, ordered
and directed to sell the said premises, with the
appurtenances, at public auction, to the highest
bidder; giving notice, according to law, of the
time and place of such sale ; and that they should
make report thereof to the said court;
And whereas, the said commissioners, pursuant
to the said order and direction, after giving pub-
lic notice of the time and place of such sale, did,
on the day of , A. D. , at , in ,
in said county of , expose to sale at public
auction, all and singular the said premises, with
the appurtenances; at which sale (a part of) the
said premises hereinafter described were sold to
the said party of the second part for the sum of
dollars, that being the highest sum bid for-
the same ;
And whereas, the proceedings of the said com-
missioners in the premises were duly reported
to the said court, and the sale approved and
confirmed, on the day of , as by the rec-
ords of the said court more fully appears; and
the said commissioners were thereupon, by an
order of said court then made, directed to exe-
cute to the said party of the second part a cos*
CONVEYANCES.
303
veyance of said premises, pursuant to the sale so
made as aforesaid.
Now this* -onveyance (deed, or, indenture) wit-
nesseth :
That the said parties 01 the first part, pursuant
to the direction and authority to them given, and
for and in consideration of the sum of money so
bid as aforesaid, I- them in hand paid by the said
party of the second part, the receipt whereof is
hereby acknowledged, have bargained, sold,
aliened, conveyed and v, nfirmed, and by these
presents do bargain, sell, alien, convey, and con-
firm unto the said party of the second part, all
the estate, right, title, interest, claim, and de-
mand of the said parties of the first part, and also
all the right, title, interest, claim, and demand of
all and singular the several and respective parties
to the proceedings in partition aforesaid, of, in
and to all \here follows description of the premises),
together with all and singular the tenements,
hereditaments, and appurtenances to the same
belonging, or in anywise appertaining; and the
reversion and reversions, remainder and remain-
ders, rents, issues, and profits thereof, and of
every part thereof:
To have and to hold the said above-bargained
premises, with the appurtenances, and every
part thereof, unto the said party of the second
part, his heirs and assigns ; as fully and abso-
lutely as the said parties of the first part can and
ought to grant and convey the same, pursuant to
the statute and their authority as aforesaid.
In witness whereof, the said parties of the first
part have hereunto set their hands and seals, the
day and year first above written.
C. O.)
M. S. > 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 <ind seals.)
For form of ACKNOWLEDGMENT, see that title.
BY INDORSEMENT ON THE PRIOR DEED.
Know all men by these presents :
That I, A. B., etc., the within-named grantor,
do by these presents grant, ratify and confirm
unto C. D., of , all the estate which I may
have in the premises within described, with the
appurtenances.
To have and to hold unto him, the said C. D.,
and his heirs and assigns, forever.
'Witness my hand (and seal), this day of
. A. B. [Sea/.]
Executed in presence of
For form of ACKNOWLEDGMENT, see that title.
Conveyance Corporation Deed.
This conveyance (deed, or indenture), made this
. day of , by the (Jure give the legal title of
the corporation), of , parties of the first part,
and C. D. , of county, in the State of , par-
ties of the second part, witnesseth :
That the said parties of the first part, in con-
sideration of the sum of dollars (thence pro-
ceeding as in other deeds to the covenants, each of
which -will begin thus) :
And the said parties of the first part (or name
the corporation), for themselves and their succes-
sors, do covenant (etc., continuing as in other cases).
In witness whereof, the said parties of the first
part in pursuance of a resolution adopted day
of month A D. , by the board of directors,
have hereunto caused their corporate seal to be
affixed, and these presents to be subscribed by
their president and cashier (or secretary, or other
officer or officers, as the corporation may order).
(Signatures of officers.)
[Corporate sea/.]
For form of ACKNOWLEDGMENT see that title.
Another By a Municipal Corporation.
(Same as in the preceding form to the attestation,
which -will be :
The common seal of the said city of to
e affixed, the day and year first above written.
(Signature of) Mayor.
\Corpnrate sea/.]
By the Common Council.
(Signature of) Clerk.
Another Where all the Directors Sign.
(Same as in the preceding form to the attestation,
which ivill be) :
In witness whereof, the president, directors,
and company of (naming the corporation) have
hereunto set their corporate seal by the hands of
their president and directors, and the president
and directors have hereunto subscribed their
names, this day of (or the day and year first
above written). (Signature of) President.
[Corporate tea/.] (Signatures of) } Directors.
Conveyance To Corporation Deed.
This conveyance (or deed, or indenture), made
this day of , by A. B., of county, in
the State of , of the first part, and the (here
insert the legal title of the corporation), of , par-
ties of the second part, witnesseth :
That the said party of the first part, in consid-
eration of the sum of dollars, to him in hand
paid by the said parties of the second part, the
receipt of which is hereby acknowledged, and
the said parties of the second part and their suc-
cessors, forever released and discharged from the
same by these presents, have granted, bargained,
sold, aliened, remised, released, conveyed and
confirmed, and by these presents do grant, bar-
gain, sell, alien, remise, release, convey and con-
firm unto the said parties of the second part, and
to their successors and assigns forever, all (here
follows the description, etc., as in other deeds).
To have and to hold all and singular the above-
mentioned and described premises, together with
the appurtenances, unto the said parties of the
second part, their successors and assigns, for-
ever. And the said A. B., for himself and his
heirs, executors and administrators, does cove-
nant, promise and agree to and with the said
parties of the second part, that {etc., continuing as
in other cases, but naming "successors" instead of
"heirs, executors," etc., of the parties of the secontl
part).
For form of ACKNOWLEDGMENT, see that title.
Conveyance Covenants in Deeds.
See ante, COVENANTS IN DEEDS, and text, ante.
Conveyance Deed Poll.
See subtexts, DEED POLL and INDENTURE, in the
text above.
Conveyance Exchange Deed.
This form of conveyance is neither convenient nor
customary. Where an exchange is made, separate
deeds are given; the ordinary form is used in sucli
cases.
Conveyance Executor's Deed.
See various States, additional forms, ante.
This conveyance (deed, or indenture), made this
day of , between E. X., of county, in
the State of , executor (or, sole acting executor,
or, sole surviving executor; or, if there are several,
say : E. X., of, etc., and T. R., of", etc., executors) of
the last will and testament of D. D., late of ,
in county, and State of , deceased, of the
first part, and C. D., of county, State of ,
of the second part, witnesseth :
That the said party (or, parties) of the first part,
by virtue of the power and authority to him (or,
them) given in and by the said last will and testa-
ment, and in consideration of the sum of
dollars to him (or, them) paid by the said party of
the second part, the receipt whereof is hereby
acknowledged, has (or, have) granted, bargained,
sold, aliened, remised, released, conveyed, and
confirmed, and by these presents does (or, do;
grant, bargain, sell, alien, remise, release, con-
vey, and confirm, unto the said party of the sec-
ond part, his heirs and assigns, forever, all (here
follows the description), together with all and sin-
gular the tenements, hereditaments, and appur-
tenances thereunto belonging, or in anywise ap-
pertaining ; and the reversion and reversions,
remainder and remainders, rents, issues, and
profits thereof; and also all the estate, right, title,
interest, property, possession, claim and demand
whatsoever, both in law and equity, which the
said testator had in his lifetime, and at the time
of his decease, and which the said party (or,
parties) of the first part (or, either of them, have or)
has, by virtue of the said last will and testament,
or otherwise, of, in and to the above-granted
premises, and every part and parcel thereof, with
the appurtenances.
To have and to hold all and singular the above-
granted premises, together with the appurte-
nances, and every part thereof, unto the said
party of the second part, his heirs and assigns,
forever.*
And the said party (or, parties) of the first part,
for himself, his (or, themselves, their) heirs, exec-
utors, and administrators does (or, do) ccvenant,
promise and agree, to and with the paity of the
second part, that he is (or, they are) lawfully the
executor [si of the last will and testament of said
M. N., and has (or, have) power to convey as
aforesaid, and has (or, have) in all respects acted,
in making this conveyance, in pursuance of the
authority granted In and by the said last will and
testament ; and that he has (or, they have) net
made, done, or suffered any act, matter or thing
whatsoever, since he was (or, they were) executcr
as aforesaid, whereby the above-granted prem-
ises, or any part thereof, are, shall or may be im-
peached, charged or incumbered in any manner
whatsoever.
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. A. B., [Sea/.\
Executor, etc.
Executed and delivered I
in presence of )
[Signature of witness.]
For f< rm jf ACKNOWLEDGMENT, see that title.
CONVEYANCES.
37
Conveyance Executor's Deed.
Several Executors Covenanting Severally and Each
for himself Alone.
(As in preceding form to the *, continuing' thus :
And the said parties of the first part, each for
himself, his heirs, executors and administrators,
does severally and not jointly, nor the one for the
other, or for the act or deed of the other, but
each for his own acts only, covenant, promise
and agree, to and with the said party of the sec-
ond part, that he is lawfully the executor of the
last will and testament of the said D. D., and
has power to convey as aforesaid, and has in all
respects acted, in making this conveyance, in
pursuance of the authority granted in and by the
said last will and testament; and that he has not
made, done, or suffered any act, matter or thing
whatsoever, since he was executor as aforesaid,
whereby the above-granted premises, or any part
thereof, are, shall or may be impeached, charged
or incumbered, in any manner whatsoever.
In witness whereof, the parties of the first part
have hereunto set their hands and seals, the day
and year first above written.
A. B. , Executor, etc . [Sea!. ]
C. D., Executor, etc. \Seal.\
Executed and delivered )
in presence of j
For form of ACKNOWLEDGMENT, see that title.
Conveyance Gift l>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 <f incumbrance say, subject as afore
MW,
CONVEYANCES.
That the said reversion and remainder now is,
and the said premises and appurtenances imme-
diately from and after the death of the said W.
B., shall be free from all incumbrances (except as
aforesaid) : that the said party of the first part has
good right, full power, and lawful authority to
convey the same as aforesaid, and that after the
decease of the said W. B., he, and his heirs, ex-
ecutors and administrators will warrant and
defend the above-granted premises and appurte-
nances to the said C. D.,his heirs and assigns,
forever, against the lawful demands of all per-
sons.
In witness whereof, the said party of the first
.part has hereunto set his hand and seal, the day
nd year first above written.
A. B. [Sen!.]
Executed and delivered)
in presence of j
For form of ACKNOWLEDGMENT, see that title.
Conveyance Right of Way.
See PREMISES IN DEEDS, above.
Conveyance Sheriff's Deeds.
See SHERIFF'S DEEDS in various States, ante.
Conveyance Tenancy in Common.
Creating a Tenancy in Common.
This conveyance (or deed, or indenture}, made the
day of , by A. B., of county, in the
State of (and W. B., his wife), of the first part,
and C. D. and E. F., of county, in the State
of , of the second part, witnesseth :
That the said party (or parties) of the first part,
in consideration of the sum of dollars to him
(or them) paid by the said parties of the second
part, the receipt of which is hereby acknowl-
edged, has (or have) (granted, bargained, sold,
aliened, remised, released, conveyed, and confirmed),
and by these presents does (or do) grant, bar-
gain, sell, alien, remise, release, convey and con-
firm unto the said parties of the second part,
and to their heirs and assigns, and the survivor
of them, and the heirs and assigns of the survi-
vor of them, forever, all (here follows the descrip-
tion of the premises conveyed), 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; nd also all the estate, right,
title, interest (dower, or right of dower), property,
possession, claim and demand whatsoever, of the
said party (or parties) of the first part, both in law
and in equity, of, in, and to the above-granted
premises, with the hereditaments and appurte-
nances.
To have and to hold all and singular the above-
granted premises, together with the appurte-
nances and every part thereof, unto the said
parties of the second part, their heirs and as-
signs forever, as tenants in common, and not
as joint tenants. And the said A. B. does hereby
covenant, promise and agree, to and with the
said parties of the second part, their heirs and as-
signs, in manner aforesaid, that (etc., as in other
cases).
Conveyance Joint Tenancy.
Creating a faint Tenancy.
(Same as above, except that the habendum will te) :
To have and to hold all and singular the above-
granted premises, together with the appurte-
nances and every part thereof unto the said C.
D. and E. P., their heirs and assigns, forever, as
joint tenants, and not as tenants in common.
For form of ACKNOWLEDGMENT, see that title.
Conveyance Trust Deed.
ftt Trust for Support of Grantor's Parents, <with
Power of Appointment to them, and a Reservation
of Rents for Payment of Incumbrances.
This conveyance (or deed, or indenture) tripar-
tite, made this day of , A. D. .between
A. B. , of , party of the first part, and C. D. , of
, party of the second part, and W. B., of ,
wife of B. B., of , party of the third part:
Whereas, the undersigned is desirous to make
a provision and settlement for the benefit of his
e-Omit these words, unless a wife joins.
father, mother and sisters, by a conveyance ip
trust of the property hereinafter mentioned, sub-
ject, however, to the reservations herein pro-
vided, and to the trusts and powers herein con-
tained :
Now this conveyance (or deed, or indenture)
witnesseth :
That the said party of the first part, for and in
consideration of the sum of dollars, to them
paid by the said parties of the second part, the
receipt of which is hereby acknowledged, have
granted, bargained, sold, aliened, remised, re-
leased, conveyed and confirmed, and by these
presents do grant, bargain, sell, alien, remise, re-
lease, convey and confirm unto the said parties
of the second part, and to their successors and
assigns forever, all (here follows the description of
the premises.)
Together with all and singular the tenements,
hereditaments and appurtenances thereunto be-
longing, or in anywise appertaining, and the re-
version and reversions, remainder and remain-
ders, rents, issues, and profits thereof; and also
all the estate, right, title, interest, property,
possession, claim and demand whatsoever of the
said party of the first part, both in law and
in equity, of, in and to the above-granted prem-
ises, with the hereditaments and appurtenances :
To have and to hold all and singular the above-
granted premises, together with the appurte-
nances, and every part, unto the said party of the
second part, his heirs and assigns, forever. (Ij
there is any incumbrance add, subject to, etc., sped
fying it. )
It is, however, to be taken and understood as
part of this indenture, and as limiting and con-
trolling the grant hereby made to the party here-
to of the second part, that the party hereto of the
first part hereby retains and reserves the posses-
sion, use, occupation, rents, issues and profits of
the premises hereby conveyed, for the purpose
of paying, and until the mortgage liens now
existing upon the said premises shall be paid off
or discharged, such retaining and reservation of
the possession, use, occupation, rents, issues and
profits not, however, to extend beyond the
day of , but to terminate sooner if the afore-
said mortgage liens shall be sooner paid off or
discharged, or if both B. B. and W. B.,the father
and mother of the party hereto of the first part,
shall sooner depart this life ;
In trust, nevertheless, subject to the reserva-
tion aforesaid, that the said party of the second
part, his heirs, successors and assigns, shall man-
age said property hereby conveyed, and shall ap-
ply the net income and profits, after deducting
for repairs, taxes, assessments and insurance,
which shall, from time to time, be realized from
the premises hereby conveyed, to the sole and
separate use of the said W. B. , during her nat-
ural life, free and discharged from any rights or
claims of or against her husband ; the separate
receipt or settlement of the said W. B. therefor,
to be a full and complete discharge of the said
party of the second part ; secondly, in trust from
the death of the said W. B.,to apply the said net
income and profits as they shall from time to
time arise, to the sole use of the said B. B., and
for the support of himse!'" and family during his
life. It is further understood and to be taken as
part of this conveyance, that the property and
premises hereby conveyed at the death of the
said B. and W. B. shall vest in the children of
the said B. B., or in a trustee or trustees for their
benefit, in such shares and proportions, and in
such estates as the said B. B. shall by a convey-
ance or last will and testament order and ap-
point.
It being to be further understood and taken as
part of this indenture, that the said B. B. shall
have the power of ordering and appointing, or
distributing among, or in trust for his children,
the fee-simple of said property, or less estate
therein, either by a conveyance or by a last will
and testament, subject to the aforesaid reserva-
tion and life interest, and in such shares and pro-
portions, and in such manner as he shall therein
designate and direct, provided, however, that at
CONVEYANCES.
least one-fourth part thereof shall be appointed
to the use of the party hereto of the first part.
It being the intent and meaning hereof to
clothe the said B. B. with all the power and
authority over three-fourths of said estate or
property, in distributing the same among his
children, subject to said reservation and life in-
terests, as the party of the first part would have
had, had not this indenture been executed.
And it is further understood and to be taken as
part of this conveyance, that if the power of ap-
pointment and distribution aforesaid shall not be
exercised by the said B. B. during his lifetime,
that the same may be exercised by the said W. B. ,
who, upon the death of the said B., without
having by a conveyance or last will and testa-
ment exercised the power and authority hereby
granted, shall have the same power and authority.
And the said party hereto of the second part is
hereby authorized and directed to convey the
property and premises herein and hereby con-
veyed in pursuance and upon the terms of the
order and appointment of the said B. or W. B.
legally made under the provisions of this convey-
ance (or, deed or indenture).
This conveyance (or deed, or indenture) further
witnesseth, that the said party of the first part,
for and in consideration of the sum often dollars
to him in hand paid by the said party of the third
part, the receipt whereof is hereby acknowledged ,
and the said party of the third part forever dis-
charged therefrom, hath granted, bargained, sold,
assigned, transferred and set over, and by these
presents doth, for himself, his heirs and assigns,
grant, bargain, sell, assign, transfer and set over
unto the said party of the third part, her heirs
and assigns, all the estate, premises and property
hereinbefore described and intended to be con-
veyed, if any, which are not legally vested in or
conveyed to the said party of the second part,
his heirs and assigns, by virtue of the execution
of this indenture, for the uses and purposes here-
inbefore mentioned, or which cannot be claimed
by the beneficiaries under or through the trusts,
or persons, or the execution thereof, herein or
hereunder intended to be legally created, author-
ized and executed, reserving and retaining, how-
ever, to the said party of the first part, the use,
occupation, rents, issues and profits of the said
property and premises, for the period hereinbe-
fore reserved and retained.
In witness whereof, the said parties have here-
unto set their hands (and seals), the day and year
first above written.
(Signatures and seals.)
Executed and delivered)
in presence of j
For form of ACKNOWLEDGMENT, see that title.
Conveyance Trust Deed.
With Warranty.
This conveyance (or deed, or indenture), made
this day of , by and 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 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 successors and as-
signs, all the following described real estate, sit-
uated 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 any-
wise appertaining, forever, in fee ; in trust, nev-
ertheless, and to and for the uses, interests and
purposes hereinafter limited, described and de-
claredthat is to say, in trust, to (state the fur-
poses, etc )
And said party of the first part does hereby
covenant, promise, and agree that the within-
described premises are free, clear, and discharged
of and from all incumbrances, of whatever nature
or kind soever ; and that he will warrant and for-
ever defend the same unto said parties of the sec-
ond and third parts, their successors and assigns,
against said party of the first part, his heirs, and
all and every person or persons whomsoever,
lawfully claiming or to claim the same.
And the said party of the second part covenant
faithfully to perform and fulfil the trusts herein
created.
In witness whereof, the said parties have her-
unto set their hands, the day and year first above
written. (Signed) A. B.
Executed in presence of E. F.
W. T.,N. S. C. D.
For form of ACKNOWLEDGMENT, see that title.
Conveyance Warranty Deeds.
See forms given for the various States, ante.
Conveyance Warranty Deed.
With Full Covenants.
This conveyance (deed, or indenture), made this
day of , in the year , between A. B.,
of county, in the State of (and W. B., hi*
wife), of the first part, and C. D., of , in the
State of , of the second part, witnesseth :
That the said party (or parties) of the first part,
in consideration of the sum of dollars, law-
ful money of the United States, to him (or them)
paid by the said party of the second part, at or
before the (sealing and) delivery of these presents,
the receipt whereof is hereby acknowledged,
and the said party of the second part, his heirs,
executors and administrators, forever, release*
and discharged from the same by these presents;
has, and by these presents does (or do) grant,
bargain, sell, alien, remise, release, convey and
confirm unto the said party of the second part,
and to his heirs and assigns, forever, all (here fol-
lows the description of the premises), together with
all and singular the tenements, hereditaments
and appurtenances thereunto belonging or in
anywise appertaining, and the reversion and re-
versions, remainder and remainders, rents, issues
and profits thereof; and also all the estate, right,
title, interest (dower and right of dower), property,
possession, claim and demand whatsoever, both
in law and in equity, of the said party (or parties)
of the first part, of, in and to the above-granted
premises, and every part and parce.1 thereof, with
the appurtenances:
To have and to hold and singular the above-
granted premises, together with the appurte-
nances and every part thereof, unto the said
party of the second part, his heirs and assigns,
forever. (If there is any incumbrance state it thus :
subject, however, to a certain indenture of mortgage for
dollars, and dated , and recorded in the office
of , in mortgage record , at page , and also
subject, etc.)
And the said A. B. (naming only the party ivht
warrants}, for himself, his heirs, executors and
administrators, does covenant, promise, and
agree, to and with the said party of the second
part, his heirs and assigns, that the said A. B., at
the time of the (sealing and) delivery of these pres-
ents, is lawfully seized in his own right (or other-
wise, as the case may be), of a good, absolute, and
indefeasible estate of inheritance, in fee simple,
of and in all and singular the above-granted and
described premises, with the appurtenances (if
conveyed subject to incumbrance say, subject as afore-
said) ; and has good right, full power and lawful au-
thority to grant, bargain, sell and convey the same
in manner aforesaid. And that the 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
let, suit, trouble, molestation, eviction, or dis-
turbance of the said party (or parties) of the first
part, his (or their) heirs or assigns, or of any other
person or persons lawfully claiming or to claim
the same ; and that the same now are free, clear,
discharged and unincumbered of and from all
former and other grants, titles, charges, estates,
judgments, taxes, assessments and incum-
brances of what nature or kind soever (if con-
veyed subject to an incttmtrance say, except as afbre
said.)
CONVEYANCES.
And also, that the said party (or parties) of the
first part, and his(o-thcir)heirs, and all and every
other person or persons whomsoever, lawfully or
equitably deriving any estate, right, title or in-
terest, ot, in, or to the above-granted premises, by,
from, under or in trust for him (or them), shall and
will at any time or times hereafter, upon the rea-
sonable request, and at the proper costs and
charges in the law, of the said party of the sec-
ond part, his heirs and assigns, make, do and ex-
ecute, or cause or procure to be made, done and
executed, all and every such further and other
lawful and reasonable acts, conveyances and as-
surances in the law, for the better and more
effectually vesting and confirming the premises
hereby granted or intended so to be in and to the
said party of the second part, his heirs and assigns,
forever, as by the said party of the second part,
his heirs or assigns, or his or their counsel learned
in the law, shall be reasonably devised, advised,
or required.
And the said A. B. (name party who warrants),
and his heirs, the above-described and hereby
granted and released premises, and every part
and parcel thereof, with the appurtenances, unto
the said party of the second part, his heirs and
assigns, against the said parties of the first part
and their heirs, and against all and every person
and persons whomsoever, lawfully claiming or
to claim the same, shall and will warrant, and,
by these presents, forever defend.
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 [and seals. ~\)
Signed, sealed, acknowledged and)
delivered in the presence of j
(Signature of witness.)
Foi form of ACKNOWLEDGMENT, see that title.
Conveyance General Warranty Deed.
By Attorney.
This conveyance (or deed, etc.), made this
day of , 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 as-
signs, all the following described real estate (with
dower or without dower, as the case may be), 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 (party warranting), for himself, his
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 sin-
gular 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, es-
\ates, judgments, taxes, assessments, and incum-
orances, of whatever 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 party of the first part, his
heirs, and all and every person or persons whom-
soever, lawfully claiming or to claim the same.
In witness whereof, the said party has here-
unto set his hand and seal, the day and year first
above written. A. B., By 'A. A., [Seal.}
his Attorney in Fact.
Signed, sealed, and acknowledged)
in presence of W. T., N. S. /
For form of ACKNOWLEDGMENT, sec that title.
Conveyance Special Warranty Deert.
This conveyance (deed, etc.), made this day
of , 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 the said parties of the first part, in con-
sideration of the sum of dollars, the receipt
of which is hereby acknowledged, do by these
presents grant, bargain, sell, and convey unto
said party of the second part, his heirs and as-
signs, all the following described real estate (with
dower or without dower), situated in the county of
, and State of , 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, or in
anywise appertaining, unto the said party of the
second part, his heirs and assigns, forever ;
And said parties 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 them-
selves (and themselves only).
In witness whereof, the said parties, etc. (as in
the first form).
Conveyance Water-Course.
See PREMISES IN DEEDS, ante.
Conveyance Way Right of.
See PREMISES IN DEEDS, ante.
LEASES are conditional conveyances;
species of contracts for the possession and
profits of lands and tenements, either for life
or for a certain term of years, or during the
pleasure of the parties. A lease is a contract
for the possession and profits of lands and
tenements on the one side, and a recompense
of rent or other income on the other.'
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 disposes of his entire in-
terest it becomes an assignment, and 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.
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.
WHAT MAY BE LEASED. Anything cor-
poreal or incorporeal lying in livery or in
grant, may be the subject-matter of a lease;
and, therefore, not only lands and houses, but
commons, ways, fisheries, franchises, annuities,
rent charges, and all other incorporeal heredi-
taments, are included in the common law rule. b
Goods, chattels, or live-stock may also be
leased, and although rent cannot technically be
said to issue out of these, the contract for its
payment is good, and an action for rent in
arrear may be maintained on such leases.
WHO MAY LEASE. All persons in possession
of lands and tenements may grant leases of them,
unless they are under some legal disability; as
a-Bac. Abr. Lease. b-Shepp. -Touchst. 268 ; 23
Penn. St. 106 : 3 N. Y. 151 ; i Root, 308. See i Washb.
Real Prop. 310. c-Co. Litt. 57, a; 3 Hen. & M- 470;
31 Penn. St. 20.
CONVEYANCES.
3'3
unsound mind, immature age, or the like : d and
in case of many of these disabilities, the leases
are voidable merely, and not void.* But it is
essential to the validity of a lease that the les-
sor has, at the time he undertakes to-make the
grant, possession of the premises, otherwise
whatever he does will amount to nothing more
than the assignment of a chose in action.* But,
unless there is an adverse holding, possession
will be deemed to follow the ownership ; and
although a lease may not be sufficient to au-
thorize a lessee to demand possession for the
want of a possessory title in his lessor, it will
still operate by way of estoppel, and inure to
his benefit if the lessor afterwards comes into
possession of the land before the expiration of
the lease.*
The power to lease will of course depend upon
the extent of the lessor's estate in the premises ;
and if he has but an estate for life, his lease
can only be co-extensive therewith ; when, for a
term of years, its commencement, as well as its
termination, must be ascertained, for certainty
in these respects is of the essence of a term
of years. But although this term may not at
first appear to be certain, it may be rendered so
by reference to some fact or event ; as, if a
lease be made to a man for so many years as he
has in the manor of Dale, and he happens to
have a term of two years in that manor, the
lease will be good for that period. h
In all cases of uncertain duration, or if no
time has been agreed upon for the continuance
of the term, or if after the expiration of a term
the tenant continues to hold over, without any
effort on the part of the landlord to remove
him, the tenancy is at the will of either party ;
and it remains at will until after the payment
and receipt of rent on account of a new ten-
ancy, or until the parties concur in some other
act which recognizes the existence of a tenancy,
from which event it becomes a tenancy from
year to year. After this, neither party has a
right to terminate it before the expiration of the
current year upon which they have entered,
nor then without having first given reasonable
notice to the other party of his intention to
do so.*
TERMINATION OF LEASE. A lease may be
terminated otherwise than by forfeiture before
the prescribed period, if the premises are re-
quired to be taken for public uses or improve-
ments, or the subject-matter of the lease wholly
perishes, or is turned into a house of ill-fame.i
The same result will follow when the tenant
purchases in fee, or the fee descends to him as
d-z Exch. 487; 4 Id. 17; o Id. 309; 8 C. & P. 679;
TO Pet. 65 : 5 Pick. 431 : 11^.304: 17 Wend. 133:4
Dev. & B. 289 , i N. H. 75. e-See as to infants, 10
Pet. 65 ; 5 Ohio, 251 ; 15^.192; n Humph. 468; n
Johns. 539; 14 Id. 124. Intoxicated persons, 13 M. &
W. 623. Married women, Smith Landl. & Ten. 48 ; i
Platt Leases, 48; 19 N. H. 483. f-Cro. Car. 109;
Shepp. Touchst. 269. Jf-Rac Abr. Lfases(l. 4) ; Cro.
Eliz. 109 : 28 Barb. 240 ; 2 Hill, 554 ; 16 Johns, no, 201 :
s, Ark. 693 ; 7 Mann. & G. 701. ll-Co. Litt. 45, b: 3 T.
R. 463 ; 4 East. 29 ; i M. & W. 533. 1-n Wend. 616;
13 Johns. 109 ; 8 T. R. 3; 4 Ired. 294; 3 Zabr. in. j-
84 Wend. 454 ; 29 Barb. i6; 5 Ohio, 3*3. k-io Johns.
heir in law; for in either case the lease is
merged in the inheritance : since there would
be a manifest inconsistency in allowing the
same person to hold two distinct estates imme-
diately expectant on the other, while one of
them includes the time of both, thus uniting
the two opposite characters of landlord and
tenant. k See LEASE FORMS, post.
LEASE FORMS.
Leases are made either by parol or in writing, but no
particular form of expression is required in any case D
create an immediate demise.' Any permissive holding
is, in fact, sufficient for the purpose, and it maybe con-
tained in any written memorandum by which it appears
to have been the intention of one of the parlies volun-
tarily to dispossess himself of the premises for any given
period, and of the other to assume the possession tor the
same period. 111 Any general description will suffice to
pass the leased premises, if it be capable of distinct as-
certainment and identification. Whatever words are
sufficient to explain the intent of the parties, that the
one shall divest himself of the possession, and the other
come into it, for a determinate time, are of themselves
sufficient, and will, in construction of <aw, amount to a
lease, as well as if the most proper and pertinent words
had been made use of for that purpose." And inaccu-
racies as to qualities, names, amounts, etc., will be re-
jected, if there is enough to make the purposes and
intentions of the parties certain.
The formal parts of a lease in writing are:
I. The introduction, which may include the date.
THE DATE, which will fix the time for its commence-
ment, unless some other period is specified in the in-
strument itself for this purpose ; but if there is no date,
or an impossible one, the time will be considered as
having commenced from the delivery of the lease. P
3. The premises, which include :
1. THE NAMES OF THE PARTIES; and the law knows but
one Christian name ; and therefore the middle letter of
the name of either party is immaterial, and a person
may always show that he is as well known by one name
as another.?
2. THE CONSIDERATION must appear, although it need
not be what is technically called rent, or a periodical
render of compensation for the use of the premises ; but
it may be a sum in gross, or the natural affection which
one party has for the other. It may also consist in
grain, animals, or the personal services of the lessee.'
3. THE DESCRIPTION OF THE PREMISES need not spe-
cify all the particulars of the subject-matter of the lease,
for the accessories will follow the principal thing namei! ;
thus the garden is parcel of a dwelling-house, and the
general description of a farm includes all the houses
and lands appertaining to the farm." But whether cer-
tain premises are parcel to those leased or not is always
matter of evidence.'
3. The habendum.
4. The reddendum.
5. Condition or proviso.
6. The covenants.
7. The conclusion.
8. The signatures (and seals where required by law)
of the grantors. And where the covenants in the lease
are mutual both parties must sign.
9. Attestation of witnesses, when required by law.
10. The acknowledgment, when required by stat-
ute, as where the term is years.
The rights and liabilities of the respective parties
are regulated by law, in the absence of any particular
agreement in respect thereto: but express covenants are
usually inserted in a lease for the purpose of limiting or
482 2 C. & P. 347: Tayl. Landl. & Ten. 502. 1-8
Bingh. 182; 9 Ad. & E. 650; 5 T. R 168; 2 Wend.
438; i Denio, 602; 8 Penn. St. 272; 12 Me. 135; Wins.
Real Prop. 327. lll-Tayl. Landl. & Ten. <> 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<tnc.
or at the end of each month, or quarter;.
Witness my hand, etc. A. B.
GENERAL FORM LEASES.
Lease General Form.
It is agreed, the day of , between A. B.,
of , and C. D. , of .
The said A. B. doth let unto the said C. D., and
he takes, all (describing premises), for one year
from , and for such longer time after the ex-
piration of the said one year, as both the said
parties shall agree, and until the end of three
months after notice shall be given, by either of
the said parties to the other of them, for caving
the said premises, at, etc., for the yearly rent o?
, to be paid quarterly on the days of ,
etc., by even and equal portions, which said
yearly rent the said C. D. does hereby, for him-
self, his executors and administrators, covenant
and agree to pay to the said A. B. (if freehold, say,
"and r.is heirs"), (but if otherwise, say, " executors,
administrators and assigns "), accordingly, for so long
time as he shall hold and enjoy the said premises
as aforesaid, and until the end of the said three
months, next after notice shall be given by either
of the said parties, to the other of them, for leav-
ing the said premises as aforesaid.
in witness whereof, etc.
Lease General Form.
This (agreement, conveyance, indenture, or) lease,
made this day of , between A. B. , of
party of the first part, and C. D. , of , party of
the second part, witnesseth :
That the said party of the first part does by
these presents lease to the said party of the sec-
ond part the following-described property, to wit
(describe the property).
To have and to hold the same to the said party
of the second part, from the day of to
the day of .
And the said party of the second part cove*
nants and agrees with the party of the first part
to pay the said party of the first part, as rent for
the same, the sum of dollars, payable as fol-
lows, to wit (state the times and terms of payment).
The said party of the second part further cove-
nants with the said party of the first part, that at
the expiration of the time mentioned in this
lease, peaceable possession of the said premises
shall be given to said party of the first part, in a
good condition as they now are, the usual wear,
inevitable accidents, and loss by fire excepted ;
and that upon the non-payment of the whole or
any portion of the said rent at the time when the
same is above promised to be paid, the said party
of the first part may, at his election, either dis-
train for said rent due, or declare this lease at an
end, and recover possession as if the same was
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.
Witness said parties' hands and seals.
(Signature of Lessor.) {Seal.}
(Signature of Lessee.) [SeatJ
CONVEYANCES.
Lease Memorandum.
Memorandum, That A. B.,of , has leased to
C. D.,of , the premises or tenement in S. street,
in , in which the said A. B. lately dwelt, to
hold for one whole year from next ensuing,
and so from year to year ; yielding and paying
yearly and every year unto the said A. B. the
sum of , by even and equal payments, the
first payment to be made on , the second pay-
ment on , etc., in every year.
And the said A. B. has agreed to repair the prem-
ises, other than the glass windows thereof and
pales before the door ;
And the said C. D. has agreed to repair the win-
dows during the term ;
And the said A. B. has agreed that C. D. may
retain the first quarter's rent, laying it out in
painting the outside of the said house, and the
overplus (if any) otherwise in and about the said
house:
And further, that the said C. D. may enter at
any time before midsummer.
Provided, that if either of said parties, their
executors or administrators, should desire to de-
termine the said lease, and should leave and give
notice thereof in writing to the other, his exec-
utors or administrators, one-quarter of a year be-
fore the end of any year, then, from the end of
the same year, the said lease shall determine and
be void.
In witness whereof, etc.
Lease General Form.
This (agreement, conveyance, indenture, or) lease,
made the day of , witnesseth :
That I, A. B., of , do hereby lease, demise,
and let unto C. D., of , a certain tract of land,
in county, and State of , with all the
buildings thereon standing and the appurte-
nances to the same belonging, bounded and de-
scribed as follows, to wit (or a. certain house in said
city, on lot number , in street, etc., with the
land under and adjoining the same).
To hold the same for the term of , from the
day of .
Yielding and paying therefor the rent
of .
And said lessee agrees to pay the said rent in
four quarterly payments on the days of :
to quit and deliver up the premises to the lessor
or his attorney, peaceably and quietly, at the end
of the term, in as good order and condition, rea-
sonable use and wearing thereof, fire and other
unavoidable casualties excepted, as the same now
are or may be put into by the said lessor : to pay
the rent as above stated, and all taxes and duties
levied or to be levied thereon, during the term,
and also the rent and ta:;es, as above stated, for
such further time as the lessee may hold the
same. And also not to make or suffer any waste
thereof; nor lease, noi underlet, nor permit any
other person or persons to occupy or improve the
same : or make or suffer to be made any altera-
tion therein but with the approbation of the
lessor thereto, in writing, having been first ob-
tained : And further that the lessor may enter to
view, and make improvements, and to expel the
lessee, if he shall fail to pay the rent and taxes as
aforesaid, or make or suffer any strip or waste
thereof.
In witness whereof, the said parties have here-
unto interchangeably set their hands (and seals),
the day and year first above written.
A. B. rsw.i
Signed, sealed and delivered ) C. D. [.Sea/.]
in presence of /
(Signatures of witnesses.)
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 party of the first part does hereby let
and rent unto the party of the second part, and
the party of the second part does hereby hire and
lake from the party of the first part the follow-
ing described premises: (here folloius the des<.rij>-
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<e the period for luhich rented),
from the day of , at the rent of
dollars, payable (state time, place, and amount of
payment^.
And said tenant has agreed to make punctual
payment of the rent in the manner aforesaid, ex-
cept in case the premises become untenantable,
from fire or any other cause, when the rent is to
cease ; to quit and surrender the premises at the
expiration of said term, in as good a condition as
reasonable use and wear thereof will permit,
damages by the elements excepted. And not use
or occupy said premises in any business deemed
extra hazardous on account of fire or otherwise,
nor let or underlet the same, except with the con-
sent of said landlord, in writing, under penalty
of forfeiture and damages. And has mortgaged
and pledged all the personal property of what
kind soever which he shall at any time have on
said premises, whether exempt by law from dis-
tress for rent, or sale under execution, or not,
waiving the benefits of and from the exemption,
valuation and appraisement laws of said State to
secure the payment thereof.
In witness whereof, he has hereunto set his
hand, this day of , A. D. .
[Witness.] A. B.
Lease Certificate.
Tenant's Waiver, Surety, etc.
This is to certify that I, the undersigned, have
hired and taken from A. B. the following prem-
ises, situated in , in county, and State of
, to wit : (describing the premises).
For a term of (five the period for -which rented ),
from the day of , A. D. , at the
rent of dollars, payable (state time, place, and
amount of payments).
And I do hereby agree to make punctual pay-
ment of the rent in the manner aforesaid, except
in case the premises become untenantable, from
fire or any other cause, when the rent is to cease ;
to quit and surrender the premises at the expira-
tion of said term, in as good a condition as rea-
sonable use and wear thereof will permit, dam-
ages by the elements excepted. And not use or
occupy said premises in any business deemed
extra hazardous on account of fire or otherwise,
nor let or underlet the same, except with the con-
sent of said landlord, in writing, under penalty
of forfeiture and damages. And do mortgage
and pledge all the personal property of what kind
soever which he shall at any time have on said
premises, whether exempt by law from distress
for rent, or sale under execution, or not, waiving
the benefits of and from the exemption, valua-
tion, and appraisement laws of said State to
secure the payment thereof.
In witness whereof, he has hereunto set his
band, this day of , A. D. .
[Witness.] C. D.
Lease Covenants.
See various clauses, above.
Lease Farm.
Year to Year, Mode of Husbandry, etc.
Memorandum.
This I. 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 said A. B. lets, and the said C. D. agrees
to take and hold of him as tenant, all that, etc.,
situate, etc.
From day of next ensuing, upon the
terms following, that is to say :
Said tenant shall be deemed a tenant from year
to year ;
That said tenant enter and take possession of
said premises on next ;
cither party may determine the tenancy
by a notice in writing, months before the ex-
piration of any year from the day of
next preceding;
That said tenant shall go out of possession at
the expiration or determination of his term ;
That the rent of said premises shall be dol-
lars per annum, payable in half yearly payments
on, etc., and on, etc., without deduction on ac-
count of any tax or assessment now in existence
or hereafter to be imposed, except, etc., which is
to be paid by the said C. D. ;
That the said tenant agrees to cause the follow-
ing repairs to be made, viz. , etc., and to keep
the buildings in tenantable repair;
That said tenant agrees to keep the gates and
fences in good repair, said tenant finding rough
timber or fencing stuff;
That said tenant shall not lop or cut any oak,
etc., on the estate, except such as have usually
been lopped, and those only to be used for making
and repairing the fences to the estate, etc. ;
That said tenant shall not mow any grass 01
meadow land above once in any one year of his
tenancy, and if he breaks up any old meadow o-
old pasture land, unless with the said landlord's
consent, in writing, then he shall pay the further
yearly rent of dollars for every acre so broken
up, and after that rate for any part of an acre ;
That said tenant may crop the arable land in each
year as follows, viz. : one equal third part therec f
with wheat or barley, one other equal third pan
with beans, peas, clover, or oats, etc., and the
remaining third part to lie in fallow ;
That said land shall not be cropped with wheat
twice, or barley twice, in any period of three
years ;
That said tenant shall use and consume on the
farm all hay and straw made and grown thereon ;
That said tenant shall use and spread dung and
manure arising or made on the farm, in such
manner as that every acre in tillage of the fatm
aforesaid may be well manured once in every three
years of his tenancy. (Except that all hay and whi:;it
straw on the farm unconsumed at the expiration of I ho
tenancy may be purchased by the landlord or succeed-
ing tenant, at a fair valuation by two indifferent perso.vs,
one to be named by each party.)
That said tenant shall leave on the premises,
without compensation, not only all lent and
white straw arising upon or from the premises,
and remaining unconsumed thereon at the expi-
ration of his tenancy, but also all dung and
manure arising or made on the farm, and th-n
remaining unconsumed ;
That said tenant shall keep clean, by well hoe-
ing, twice at the least, and weeding all the land
whilst cropped with beans, peas, clover, etc. ;
That said tenant shall endeavor to prevent any
injury by persons, cattle, or sheep, to any of the
hedges, or trees, or fences, and to preserve the
same, and not to do any injury to any timber or
other trees, in taking such loppings, as before
allowed to him.
That said tenant shall not crop or sow any of
the land with rape, flax, hemp, etc.
That said tenant shall not underlet or assign
the premises or any part thereof, except, etc.
That said tenant on quitting the farm shall
receive such pecuniary compensation for im-
provements in fencing, etc., as two arbitratcrs
(one of which arbitrators shall be nominated by eat.li
party, and if either neglect to nominate his arbitrator,
the other party may nominate both arbitrators) shall
award, which arbitrators shall abate according
to the benefit derived by the tenant from such
repairs, improvements, and additions, and take
into consideration how far, at the expiration
of the tenancy, they may be beneficial to the
estate.
In witness whereof, etc.
Lease Goods and Furniture.
This (iigreement, conveyance, indenture, or) lease,
of two parts, made this day of , between
A. B., of , and C. D., of , witnesseth:
That the said A. B. , in consideration of the
covenants hereinafter contained, on the part of
the said C. D. to be performed, has leased to the
said C. D., and his assigns, all the goods and
C'ONVEVANCES.
325
household furniture contained in the schedule
hereunto annexed.
To hold to the said C. D., and his assigns, from
the date hereof for the full term of three years :
Yielding and paying therefor the annual rent
of fifty dollars, in four equal quarterly payments,
viz., on the day of , on the day of
, on the day of , and on the day
of , in every year during the said term.
And the said A. B. covenants that the said C.
D., etc., and his assigns, shall quietly hold and
enjoy the leased premises, without the lawful
hindrance of any person or persons whatso-
ever.
And the said C. D. covenants that he will pay
the rent aforesaid in manner aforesaid, during
the said term ; that he will not assign this lease,
or underlet the said goods, or any part thereof
without the written consent of the said A. B. ;
that he will replace at his own expense any of
the said goods, which may be casually lost or
injured during the said term, and at the expira-
tion of the said term, or other sooner determina-
tion of this lease will restore the said goods and
household furniture to the said A. B., or his as-
signs, in the like good order and condition, as
they now are, wear and tear arising from a rea-
sonable use of the same, and loss from the cas-
ualty of fire, alone excepted.
In witness, etc.
FOR DETERMINING LEASE OP GOODS.
Provided, that if the said A. B., or his assigns,
shall at any time during the said term tender to
the said C. D., or his assigns, one dollar, with an
intent to determine this lease, then this lease
shall wholly cease and determine from the time
oi such tender, in like manner to all intents and
purposes whatever, as if the said term of
w ere fully complete and ended, and the said rent
st all be so apportioned that the said C. D., or his
a.- signs, shall pay, and the said A. B., or his as-
signs, shall receive, after the rate of fifty dollars
pr annum, for the use of the goods and house-
hi Id furniture aforesaid, during the time that
th ey shall be used, or retained by the said C. D.
in his possession, by virtue hereof.
PURCHASE OF GOODS, ETC.
And it is expressly covenanted by either of the
s<i id parties to the other of them, and their as-
si, ;ns respectively, that if, at any time during the
sa id term, or within ten days after expiration or
so oner determination thereof, as aforesaid, the
sa.id C. D., or his assigns, shall be minded to pur-
chase the leased premises, at the prices set
against them in the said schedule, amounting in
the whole to the sum of five hundred and eighty
dollars, and shall pay or tender the said sum to
the said A. B., or his assigns, together with all
a! rearages of rent then due or to be apportioned
<; aforesaid, with intent to purchase the said
goods, then the said A. B., or his assigns, in con-
B (deration of the said sums of money so tendered
or paid as aforesaid, shall by a legal and sufficient
bargain and sale, or other deed or conveyance,
sell, and convey the said leased premises to the
said C. D., or his assigns, to his or their sole use
free from the lawful claims and demands of all
persons whatsoever, and the said lease, if not
otherwise determined, shall from thenceforth
cease and determine, in the same manner as if
the said term of three years had wholly expired
and elapsed.
In witness, etc.
I^ease Or on ml r.oaso.
This (agreement, conveyance, indenture, or) lease,
made this day of , by and between A. B.,
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 party of the second part, has demised
and leased to the party of the second part all
those premises situate in the of , in
county, and State of , known and described
as follows, to wit: (here give description o/ tke
premises)
To have and to hold the above-described prem-
ises, with the appurtenances, unto the party of
the second part, from the day of , for,
during, and until the day of .
And the party of the second part, in considera-
tion of the leasing of the premises aforesaid, does
covenant and agree with the party of the first
part : That he will pay to the party of the first
part as rent for said leased premises, at the office
of , in , the sum of (stale the annual tent),
in four equal quarterly payments, each of them
the sum of dollars, to be paid on the first (or
other) day of the months of (April, July, October,
and January, or otherwise) in each year.
That the said party of the second part will pay,
or cause to be paid, all water-rates and all taxes
and assessments that maybe laid, charged or as-
sessed on said demised premises, pending the
existence of this lease ;
That if at any time after any tax, assessment,
or water-rate shall have become due or payable,
the party of the second part, or his legal repre-
sentatives, shall neglect to pay such water-rates,
tax, or assessment, it may be lawful for the party
of the first part to pay the same at any time there-
after, and the amount of any and all such pay-
ments so made by the party of the first part shall
be deemed and taken, and are hereby declared to
be, so much additional and further rent, for the
above demised premises, due from and payable
by the party of the second part ; and may be col-
lected in the same manner, by distress or other-
wise, as is hereinafter provided for the collection
of other rents to grow due thereon.
That the whole amount of rent reserved, and
agreed to be paid for said above-demised prem-
ises, and each and every instalment thereof, shall
be and is hereby declared to be a valid and first
lien upon any and all buildings and improve-
ments on said premises, or that may at any time
be erected, placed, or put on said premises by
said party of the second part, or his heirs, execu-
tors, and administrators, or assigns, and upon his
or their interest in this lease, and the premises
hereby demised ;
That whenever, and as often as any instalment
of rent or any other amount above declared to be
deemed and taken as rent, shall become due and
remain unpaid for one day after the same be-
comes due and payable, said party of the first
part, his heirs, executors, administrators, agent,
attorney, or assigns, may sell at public auction to
the highest bidder for cash, after having first
given ten days' notice of the time and place of
such sale in some newspaper published in ,
all the buildings and improvements on said prem-
ises, and all the right, title and interest acquired
by said party of the second part, under this lease,
to the premises herein described, and as the at-
torney of said party of the second part hereby
irrevocably constituted may make to the pur-
chaser or purchasers thereof a suitable and proper
transfer bill of sale or deed of the same and out
of the proceeds arising from such sale, after first
paying all costs and expenses of such sale, in-
cluding commissions and attorney's fees retain
to himself the whole amount due on said lease,
up to the date of said sale, rendering the surplus
(if any) to said party of the second part, his heirs,
executors, administrators, agent, attorney, or as-
signs, which sale shall be a perpetual bar to and
against all rights and equities of said party of the
second part, his heirs and assigns in and to the
property sold.
That, at the expiration of the time in this lease
mentioned, said party of the second part will
yield up said leased premises to the party of the*
first part in as good condition as when the same
were entered upon by the party of the second
part, loss by fire or inevitable accident and ordi-
nary wear excepted.
That neither said party of the second part nor
his legal representatives will underlet said prem-
ises or any part thereof, or assign this lease, with-
out the written assent of said party of the first
part, first had and obtained thereunto, nor use or
suffer them to be used for any purpose calculated
to injure the reputation of the premises or of the
326
CONVEYANCES.
neighbcrnood, or to impair the value of the sur-
rounding neighborhood property for present use
or otherwise.
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 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
party of the second part, his executors, adminis-
trators, or assigns, it shall and may be lawful for
the party of the first part, or his heirs, executors,
administrators, agent, attorney, or assigns, at his
r their el-ction, to declare said term ended, and
into the said demised premises, or any part there-
of, either with or without process of law, to re-
enter, and the 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 premises again to repossess and enjoy, as of
his or their first and former estate ; and to dis-
train for any rent that may be due thereon, upon
any property belonging to the party of the second
part, whether the same be exempt from execu-
tion and distress bylaw or not ; and the 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 this State, or in
any other way;
That it is intended hereby to give the party of
the first part, his heirs, executors, administrators,
agent, attorney, or assigns, a valid and first lien,
upon any and all the goods, chattels, or other
property belonging to the 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, agent, attorney,
or assigns, as aforesaid, or in any other way, the
party of the second part does hereby covenant
and agree to surrender and deliver up said above-
described premises and property, peaceably, to
the party of the first part, or his heirs, executors,
administrators, agent, attorney, or assigns, im-
mediately upon the determination of said terms,
as aforesaid ;
That if the said party of the second part, or
his legal representatives, shall remain in posses-
sion of the same one day after notice of such de-
fault, or after the termination of this lease, in any
of the ways above named, he or they shall be
deemed guilty of a forcible detainer of the prem-
ises, and shall be subject to all the conditions and
provisions above named, and to eviction and re-
moval, forcibly or otherwise, with or without
process of law, as above stated.
That neither the right given in this lease, to
said party of the first part, to collect the rent
that may be due under the terms of this lease by
sale, nor any proceedings under the same, shall in
any way affect the right of said party of the first
part to declare this lease void and the term here-
by created ended, as above provided upon default
made by said party of the second part.
That said party of the first part hereby waives
his right to any notice from said party of the
second part, of his election to declare this lease
at an end, under any of its provisions, or any de-
mand for the payment of rent, or the possession
of premises leased herein ; but the simple fact of
the non-payment of the rent reserved shall con-
stitute a forcible entry and detainer as aforesaid.
That said party of the second part shall not re-
move any buildings or other improvements from
said premises without written consent of said
party of the first part.
That the said second party shall pay and dis-
charge all costs and attorney's fees and expenses
that shall arise from enforcing the covenants of
this indenture by the party of the first part.
It is further understood and agreed, That all
the conditions and covenants contained in this
lease shall be binding upon the heirs, executors,
administrators, and assigns of the parties to these
presents respectively.
In witness whereof, the said parties have here-
unto set their hands and seals the day and year
first above written. A. B. [>//.]
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
<IT times during this lease, inordinately burn or
ivaste any of the firewood which is so allowed,
i nd shall keep the said pollard trees, as also all
the fruit trees and spring wood, from all wilful or
r egligent hurt or waste.
I/case Honse Unfinished.
This (agreement, conveyance, indenture, or) lease,
made this day of , between A. B., of ,
cf the one part, and C. D.,of , of the other
part, witnesseth:
That, in consideration of the rent and cove-
nants, hereinafter reserved and contained on the
part of said C. D., his executors, administrators,
i nd assigns, the said A. B. does lease unto the
said C. D., all that parcel of ground, situate on
the south side of street, in, etc., etc., together
with the buildings erected thereon, being the
house from , exclusive of the corner house ;
which said premises, with the dimensions and
abuttals thereof, are particularly described in the
ground plot thereof, drawn in the margin hereof;
together with all the privileges and appurte-
nances to the said premises belonging (except,
ttc.)
To have and to hold the said premises un*o the
said C. D.,his executors, etc., from the -of day
last, for the term of years, thence next
ensuing ;
Yielding and paying therefor yearly, during the
said term, unto the said A. B.,his heirs, execu-
tors, etc., the rent of dollars, by equal quar-
terly payments, on the day of -, etc., etc.,
in every year, without any deduction whatsoever
for taxes, assessments, etc.
VARIOUS CLAUSE?.
ASSIGN NOT TO, WITHOUT GIVING NOTICE.
That the said C. D., his executors, etc., will
not assign the said premises or any part thereof,
for the said term, without giving notice in writ-
ing within fourteen days then next, to the said
A. B., his executors, etc., and will not, during the
last seven years of the said term, assign or make
over the said premises, or any part thereof, for
all or any part of the residue of the said term,
without the consent in writing of the said A. B.,
his executors, etc.
DRAINS, FENCES, PARTY WALLS, AND SEWERS, ETC.,
ETC. To CONTRIBUTE TO.
That said C. D. will, during the said term, con-
tribute a reasonable proportion towards the ex-
pense of making, repairing and cleansing all party
and fence walls, sewers, drains, watercourses,
ways and other easements, used or to be used in
common, by the occupier of the said premises,
and the occupiers of the adjoining premises be-
longing to the said A. B.
FINISH HOUSE LESSEE COVENANTS TO, ETC.
That said C. D., his executors, administrators,
or assigns, will, at his or their own expense, before
the day of next, finish and make fit for
habitation the said tenements, with the appurte-
nances, to the approbation of the said A. B., his
heirs, executors, etc., or his or their surveyor.
That said C. D. will pave a footway in front of
the said dwelling, with a stone curb, etc., etc.
INSURE LESSEE WILL, ETC.
That said C. D. will forthwith insure the build-
ings erected and hereafter to be erected on the
ground hereby demised, to the full value thereof,
in the insurance office, etc., and keep the
same continually so insured during the said term ;
and will, upon request of the said A. B., his ex-
ecutors, etc., show the receipt for the premium
paid for such insurance, for every current year.
PAINT LESSEE TO, ETC.
That the said C. D.,his executors, etc., will, in
every fourth year of the said term, paint all the
outside wood work and iron work belonging to
the said premises, with two coats of proper oil
colors, in a workmanlike manner.
REPAIR LESSEE TO KEEP PREMISES IN.
That said C. D. will, as occasion shall require,
during the said term, well and sufficiently repair,
maintain and keep the said premises, with the
appurtenances, in such good and substantial re-
pair as is necessary for the occupation of a tenant
at rack-rent.
REPAIRS THAT LESSOR MAY ENTER TO INSPECT, ETC.
Said A. B. , his executors, etc. , at all seasonable
times, during such term, may enter the said
premises, and take a schedule of the same fix-
tures and things.
REBUILD, REPAIR, ETC., IN CASE OF FIRE, LESSEE
WILL, ETC.
That said C. D. will, as often as the buildings
already erected on the ground hereby demised
shall be burnt down or damaged by fire, forth-
with reinstate the same under the direction of the
surveyor of the said A. B. , his executors, etc.
That it shall be lawful for the said A. B., his
executors, etc. , at all seasonable times during the
said term, to enter the said premises, to take
plans and examine the condition thereof;
That all wants of reparation, which upon such
views shall be found, and for the amendment of
which notice in writing shall be left at the said
premises, the said C. D., his executors, etc., will
within three calendar months next after every
such notice, well and sufficiently repair and make
good accordingly.
That the said C. D., his executors, etc., will not
alter or injure any of the principal timbers, roofs,
or walls of the said premises, nor use or occupy
the said premises, or any part thereof, for any
other purpose than as a private dwelling house,
without the consent in writing of the said A. B.,
his executors, etc., nor by building or otherwise
obstruct any light belonging to any building on
the ground adjoining or contiguous, or suffer to
be done anything which may tend to the annoy-
ance or damage of the said A. B., his executors,
etc., or any of his or their tenants.
I,ease Indenture.
This indenture (or lease), made this
day of
CONVEYANCES.
329
, between A. B., of , of the first part, and
C. D., of , of the second part, witnesseth :
That said party of the first part, for and in con-
sideration of the rents, covenants, and agree-
ments hereinafter mentioned, reserved and con-
tained, on the part and behalf of the party of the
second part, his executors, administrators, and
assigns, to be paid, kept and performed, hath
granted, demised, and to farm letten, and by
these presents doth grant, demise, and to farm
let, unto the said party of the second part, his ex-
ecutors, administrators, and assigns, all (give de-
scription of premises) :
To have and to hold the said above-mentioned
and described premises, with the appurtenances,
unto the said party of the second part, his execu-
tors, administrators, and assigns, from the
day of , for and during, and until the full end
and term of ten years thence next ensuing, and
fully to be complete and ended (or, for and during
the natural life of E F )
Yielding and paying therefor, 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 dollars,
lawful money of the United States of America, in
equal quarter (or half ) yearly payments, to wit:
on the first day of May, August, November, and
February, in each and every year during the said
term :
Provided always, nevertheless, that if the
yearly rent above reserved, or any part thereof,
shall be behind or unpaid, on any day of pay-
ment whereon the same ought to be paid as afore-
said ; or if default shall be made in any of the
covenants herein contained, on the part and be-
half of the said party of the second part, his ex-
ecutors, administrators, and assigns, to be paid,
kept, and performed, then and from thenceforth
it shall and may be lawful for the said paity of
the first part, his heirs or assigns, into and upon
the said demised premises, and every part there-
of, wholly to re-enter, and the same to have
again, re-possess and enjoy, as in his or their
first and former estate, or to distrain for any rent
that may remain due thereon, anything hereinbe-
fore contained to the contrary thereof in anywise
notwithstanding.
And the said party of the second part, for him-
self and his heirs, executors, and administrators,
doth 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 second
part, his executors, administrators, or assigns,
shall and will yearly, and every year during the
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 the manner limited
and prescribed as aforesaid for the payment
thereof, without any deduction, fraud, or delay,
according to the true intent and meaning of these
presents. (If necessary, insert: and that the said
party of the second part, his executors, administrators,
or assigns, .shall and will, at their own proper costs and
charges, bear, pay and discharge all such taxes, duties
and assessments whatsoever, as shall or may, during
the said term hereby granted, be charged, assessed, or
imposed upon the said described 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 ex-
ecutors, 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,
his heirs and assigns, doth covenant and agree
by these presents, that the said party of the sec-
ond part, his executors, administrators, or as-
signs, paying the said yearly rent above reserved,
and performing the covenants and agreements
aforesaid on his and their part, the said party of
the second part, his executors, 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 manner of let, suit, trouble, or hin-
drance, of or from the said party of the first part,
his heirs or assigns, or any other person or per-
sons whomsoever.
In witness whereof, the parties to these pres-
ents have hereunto set their hands and seals, the
day and year above written. A. B. [L. s.J
Sealed, signed, and delivered \ C. D. [L. s.J
in presence of G. H. J
I -< as !.!(< Lease.
This (agreement, conveyance, indenture, or) lease,
made this day of , by and between A. B.,
of , of the one part, and C. D., of , of th<
other part, witnesseth ;
That said A. B., in consideration of the rents
and covenants hereinafter contained, on the part
of the said C. D., to be paid and performed, does
hereby lease and convey unto the said C. D., his
executors, administrators, and assigns, all the
following described real estate, etc. (here describ-
ing the premises), (being the same which were, together
with certain other parcels of real estate, etc.), assigned
to the said A. B., as her dower in the estate of
her late husband, H. B., deceased;
To have and to hold said leased premises, to
him, the said C. D., his executors, etc., from the
day of the date hereof, for and during the natural
life of the said A. B. ;
Yielding and paying therefor the yearly rent of
, in quarterly payments, every year during the
life of the said A. B. ; the first payment to be
made on the day of next :
And the said C. D., for himself, his executors,
etc., does hereby covenant with the said A. B.,
her executors, administrators, and assigns :
That he, his executors, etc., shall and will p*y
to the said A. B.,her heirs, executors, etc., the
said yearly sum of , at the several times here-
inbefore limited for the payment thereof, during
the continuance of this lease ;
That he, the said C. D., his executors, etc., shall
and will, from time to time, and at all times dur-
ing the continuance of the said lease, at his and
their own charges, well and sufficiently repair,
support and amend said leased premises and every
part thereof, with all manner of needful repairs
and amendments, as often as occasion shall re-
quire ;
That he will not, and his executors, etc., shall
not, do, commit, or suffer any waste upon the de-
mised premises during the said term ;
That on the decease of the said A. B., will and
shall, yield and deliver up the said premises to
the legal owner, or proprietor thereof, in as good
condition as they are now in, reasonable use and
wear thereof, and also damage or destruction by
fire, excepted ;
That he, the said C. D. , his executors, etc. , shall
and will pay and discharge all the rates and
taxes, whether city, county, or State, or of the
United States, which shall, from time to time, or
at any time during the said lease, be lawfully as-
sessed or imposed on the leased premises;
Provided always, nevertheless :
That, if it shall happen that the said rent of
, or any part thereof, shall be in arrear and
unpaid, by the space of days, next after the
same shall become due, respectively, as before
limited for the payment thereof; or, if the said
premises shall not be sufficiently repaired and
amended within four months after notice given to
or left with the tenant of the same for the time
being, of any deficiency or want of repairs of the
same; or, if all or any such rates or taxes afore-
said, which shall be lawfully assessed on the
leased premises, shall not be discharged in the
manner, and by the times respectively limited
and appointed for the payment thereof; then,
and in any or either of the said cases, it shall and
may be lawful for the said A. B., or her assigns,
into the leased premises, or any part thereof, in
the name of the whole, to re-enter, and the same
to have again, and enjoy, as in her first and
former estate, and the said C. D., his, etc., and
all other tenants and occupiers of the said prem-
ises thereout, and from thence to expel, eject, and
remove, anything hereinbefore contained to the
contrary notwithstanding.
33
CONVEYANCES.
And the said A. B. does hereby covenant and
agree, to and with the said C. D., his executors,
etc., that he and they, paying the said yearly
rent, hereby reserved, at the times hereinbefore
appointed for the payment thereof, and perform-
ing all and singular the covenants and conditions
herein contained, on his and their part to be per-
formed and kept, shall and lawfully may, peace-
ably and quietly, hold and enjoy the leased prem-
ises for and during the term aforesaid, free from
the lawful hindrance or interruption of any per-
son or persons whatsoever.
Provided always, and it is hereby mutually
agreed between the said parties, that if the said
messuage, parcel of the said leased premises,
daring the said term, should accidentally be
burned down, or destroyed by fire, this indenture
,pf lease, and every clause, article, and covenant
nerein contained, shall thereafter cease and de-
termine ; and neither the said A. B., her, etc., nor
the said C. D., his, etc., shall be obliged to re-
build the said house, but he, the said C. D., his,
etc., shall yield and deliver up, to the said A. B.,
or her assigns, possession of the land on which
the said messuage stood, together with the resi-
due of the leased premises, and he and they
shall be acquitted and discharged, from thence-
forward, from the payment of rent therefor, and
from the performance of the other covenants
hereinbefore contained.
In witness whereof, etc.
Incase M an ill act ory.
This (agreement, conveyance, indenture, or) lease,
made this day of , between A. B., of ,
of the first part, and C. D., of , of the second
part, witnesseth :
That in consideration of the rent and royalties
hereinafter reserved, and of the covenants here-
inafter contained, and on the part of the said C.
D., his executors, administrators, and assigns, to
be observed and performed, said A. B. hereby
grants and leases unto the said C. D., his execu-
tors, administrators and assigns, as follows:
FIRST. All that tenement chiefly used as an en-
gine-house, situate in and fronting street in
the city of , which said premises are more
particularly delineated in the map or plan hereto
annexed, and therein marked , and the use
and enjoyment of all the machinery, fixtures,
implements, utensils, and things which now are
in or upon the said premises.
SECOND. All and singular the manufactories,
buildings, boiler-houses, kilns, erections, offices,
buildings and premises situate between street
and quay in the said city of , which said
premises secondly hereinbefore described are
more particularly delineated in the said map or
plan, and therein marked , and the use and
enjoyment of all the machinery, fixtures, imple-
ments, utensils, and things which now are in or
upon the said premises secondly hereinbefore de-
scribed (excepting, nevertheless, and reserving unto the
persons in favor oi or to whom the same have previously
to the date of these presents been cxcepted and reserved,
their executors, administrators, and assigns, all the
rooms which form the upper story of the several build-
ings hereby demised, and the absolute use and enjoy-
ment thereof, whether for the purposes of business, or
otherwise, and unto the same persons, their executors,
administrators and assigns, and unto their servants,
workmen, or any other persons on their behalf),
THIRD All that tract and parcel of ground
bounded and described as follows (describing it):
the same to occupy and use, either on foot or by
means of carts or other vehicles, horses, or other
animals, full and free right and liberty of ingress,
egress, regress, passage and way at all times
over the said piece of land colored on the
said plan from the point at which the said piece
of land adjoins the wharf, and by all the other
internal and external passages and ways by
which the said rooms respectively are or can be
now approached from the said street from the
point aforesaid :
To have and to hold all the said premises here-
by leased, or expressed so to be, unto the said
C : his executors, administrators, and assigns.
for the term of years from the day of
next :
Yielding and paying in respect of the premises
hereby demised every year during the said term
of years the clear yearly rent of dollars.
and yielding and paying every year during the
said term a royalty of per , in respect ot
all which shall be made or manufactured ana
sold by the said C. D., his executors, administra-
tors or assigns, or any person or persons on his
or their behalf, either on the premises hereby de-
mised or on any part thereof, or on any other
premises or in any other place or places whatso-
ever, such rent and royalties to be paid by equal
quarterly payments on the day of , the
clay of , the day of , and the day
of , clear of all deductions, the first quarterly
payment of the said rent and royalties respec-
tively to be made on the day of next.
And the said C. D. hereby, for himself, his heirs,
executors, administrators, and assigns, cove-
nants with the said A. B., his executors, admin-
istrators and assigns, that the said C. D., his ex-
ecutors, administrators, and assigns, shall and
will, during the said term, pay the said rent and
royalties respectively on the said days of pay-
ment whereon the same respectively are herein-
before made payable, without any deduction, and
also pay and discharge all present and future
taxes, charges, rates and assessments upon the
said premises hereby leased, or on the occupier
or occupiers thereof in respect of the same, and
will at a-11 times keep indemnified the said A. B.,
his heirs, executors, administrators and assigns,
fiom the payment thereof respectively ;
And further, that the said C. D., his executors,
administrators and assigns, shall and will, at all
times during the said term of years, carry
on, within the said city of , the business of
making or manufacturing , and selling the
same there and elsewhere to the best possible
advantage ; and shall and will at all times during
the said term keep proper books of account on
the said premises hereby leased, or on some part
thereof, and shall from time to time make such
entries therein as shall clearly show the quantity
of which shull from time to time be manu-
factured and sold by him or them, or any person
or persons on his or their behalf, and also the
amount of royalties which shall from time to
time become payable in respect thereof, and also
all other matters which ought to be entered in
such books in relation to the said business; and
shall and will on the first day of every month
during the said term, at his or their own expense,
supply the said A. B. , his executors, administra-
tors and assigns, with a proper and faithful ac-
count, in writing, of all the which shall have
been manufactured or sold as aforesaid during
the then preceding month, together with all
vouchers and such other evidence as may be re-
quired in order clearly to show the accuracy of
such account; and shall and will, if and when
required so to do by the said A. B. , his executors,
administrators, or assigns, further evidence the
accuracy of every such account by the oath oi
affirmation of the said C. D., his executors, ad-
ministrators or assigns; and shall and will on
every quarter-day during the said term during
which the royalties hereby reserved are made
payable by these presents, pay the full amount
of the royalties which shall have become payable
in respect of all the which shall have been
manufactured or sold during the then preceding
quarter of a year.
And further, that in case the said rent and roy-
alties hereby reserved, or any of them, or any
part thereof respectively, shall at any time or
times during the said term, fail to be paid at the
times and in the manner hereinbefore provided
for this purpose, then (in addition to the powers of
distress and entry which he or they may possess inde-
pendently of any special clause to this effect) it shall
be lawful for the said A. B., his executors, ad-
ministrators or assigns, into or upon the said
premises hereby leased, or expressed so to be,
pr any part thereof, or any other premises where-
in or whereupon the said business may for the
CONVEYANCES.
331
time being be carried on, to enter and distrain
for the same rent and royalties so in arrear, and
the distress or distresses there found to impound
and detain, sell and dispose of in such manner as
landlords are by law authorized to do in respect
of arrears of rent reserved upon common lease,
to the intent that the said A. B., his executors,
administrators, or assigns, may by such distress
or distresses be from time to time satisfied, all
such rent and royalties as may be so unpaid as
aforesaid, and all costs and expenses occasioned
by non-payment or default in payment thereof.
In witness whereof, etc.
Lease Mill.
With Proviso.
This (agreement, conveyance, indenture, or) lease,
Blade this day of , between A. B., of ,
jn county, and State of , of the first part,
and C. D., of , in county, and State 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 party of
the second part, his executors, administrators
and assigns, to be paid, kept and performed,
the mill property of the party of the first
part, now run by R. & R., which is stories
high, feet in length, and contains looms,
being one of the mills known and designated as
the R. & R. Mills, in the city of ; together
with all the machinery now in the same belong-
ing to the said party of the first part, and all
stoves, boilers, fixtures, heaters, and machinery,
and every article now in the said miH which ap-
pertains to the same, and is necessary to its suc-
cessful operation ; and also all the dwellings and
storehouses used in connection with said mill,
which now belong to said party of the first
part.
And the said party of the first part further
agrees to pay all taxes and insurances on said
premises, and to furnish water-power, water-
wheels, main-shafting and gearing sufficient at
all times to keep in constant and full operation
said mill, and all the running works of the same,
and all machinery driven by water-power now in
said mill.
And the said party of the first part further
agrees to secure to the said party of the second
part the quiet and peaceable possession of all
and every part of said premises, machinery and
tools, and all grounds appertaining to said mill,
and all passage-ways to and from the same
which are now used and may be necessary for
the accommodation of the same, for years
from the first day of next.
It is mutually understood and agreed between
the parties hereto, that in case said mill should
be necessarily stopped from casualty, or in case
there shall be a want of or failure of water-
power, the rent above mentioned to be paid shall
cease, and not be chargeable during the continu-
ation of such stoppage, want, or failure.
In witness whereof, etc.
Incase Mining. Etc.
This (agreement, conveyance, indenture, or) lease,
made tiiis day of , between A. B. , of ,
in county, and State of , of the first part,
and C. D., of , in county, and State 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 party of the
second part, his executors, administrators, and
assigns, to be paid, kept, and performed, do
lease and convey to said party of the second part,
his heir;., executors, administrators and assigns,
the rig'U of entering in and upon the following
described lands, situated (here insert description},
for the purpose of searching for mineral and fos-
sil substances, and of conducting mining and
quarrying operations to any extent he may
deem advisable.
For the term of years, from the day
of , A. D. (but not to hold possession of any
part of said lands for any other purpose whatsoever;,
paying for the pite of buildings (or designate other
works) necessaiy thereto, a reasonable rent.
And said party of the second part hereby agrees
that he, his heirs, executors, administrators, or
assigns, will pay or cause to be paid to said party
of the first part, his heirs or assigns, as follows :
{here state payments).
And said party of the second part covenants
that no damage shall be done to or upon said
lands and premises other than may be necessary
in conducting said operations.
And said parties of the first and second part,
each for themselves, their heirs, executors, ad-
ministrators, and assigns, covenant and agree,
and this indenture is made with this express pro-
viso, that if no mineral or fossil substance be
mined or quarried, as now contemplated by said
parties, within the period of years from the
day of , then these presents, and every-
thing contained herein, shall cease, and be for-
ever null and void.
In witness whereof, etc.
Lease Oil. Mineral, or Salt Lands.
This (agreement, conveyance, indenture, or) lease,
made and concluded this day of , between
A. B., of of , county of , 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 himself
and his heirs, executors, administrators, and as-
signs, for and in consideration of the sum of one
dollar, the receipt of which is hereby acknowl-
edged, and for the further consideration herein-
after mentioned, and on account of covenants
hereinafter contained, hereby leases to the said
party of the second part, his heirs, executors, ad-
ministrators, and assigns, the following-described
piece or parcel of land, situated in township,
county, and State of , bounded and de-
scribed as follows : (describe the premises).
The said land more fully described in deed of
conveyance by C. D. to said party of the first part,
containing acres, more or less, for the pur-
pose of boring, mining, and operating for oil,
salt, and other minerals on said land, for the term
of years.
Said second parties shall have the exclusive
right to mine for oil, salt, and other minerals, on
said land, during the continuance of said term;
shall have the privilege of taking sufficient coal
and wood for conducting said boring and min-
ing operations, and timber for derricks and
mill-frames and for refineries, and the right to
erect all necessary buildings upon said prem-
ises for carrying on the business of boring for oil,
and mining, refining and storing away oil and
other minerals ; shall have the necessary roads
to and from any well or wells that may be bored,
or any mines; and shall have possession when-
ever they shall be ready to commence operations.
In case successful in obtaining oil or other
minerals, agree to deliver to the said party of the
first part (state the part or proportion to be given
to the lessor) of all oil, salt, or other minerals ob-
tained.
Said party of the first part shall find his own
barrels, and remove the oil and other minerals
belonging to him as often as required by the sec-
ond parties.
In case said second parties should not be suc-
cessful in obtaining oil or other minerals, they
shall have the right to remove all engines, tools,
machinery, and buildings.
And further, it is agreed that the parties of the
second part shall have the right to sub-lease said
land for the purpose of boring for oil or other
minerals, and the said lessee or lessees shall have
all the rights and privileges herein granted to the
said party of the second part.
Witness our hands (and seals), this day of
. A. B. [Sean
(Witness.) C. D. [Seal.]
For form of ACKNOWLEDGMENT, see that title.
Lease Pew.
This (agreement, conveyance, indenture, r) lease,
made this day of , between A. B., of ,
of the one part, and C. D., of , of the other
part, witnesseth :
CONVEYANCES.
That in consideration of the rents and cove-
nants hereinafter reserved and contained, and
which on the part of the said C. D. , his executors,
administrators and assigns, are to be paid and
performed, the said A. B. does lease, etc., to the
said C. D., his executors, etc., all that pew or
seat in the meeting-house, situate in said S.,
numbered , with free liberty of ingress and
egress into and from the same at all times of
divine service, and at all seasonable times what-
soever ;
To hold the said pew or seat to the said C. D.,
his executors, etc., from the day of the date here-
of, for and during the full term of years
thence next ensuing ;
Yielding and paying therefor, on every first day
of during the said term, unto the said A. B.,
his heirs or assigns, the yearly rent of
dollars.
Provided always, nevertheless, that if it shall
happen that the said yearly rent hereby reserved ,
or any part thereof, shall be behind and unpaid
by the space of twenty days next after it shall
become due as aforesaid, then this lease and
every article and thing herein contained, on the
part of the said A. B. to be done and performed,
shall determine and be utterly void.
COVENANT TO PAY TAXES, ETC.
That said C. D., his executors, etc., at all times
hereafter during the term aforesaid, shall and
will pay and discharge all taxes and parish
duties, which shall be duly and legally assessed
on the said pew or seat.
See other covenants, above and below.
Lease Renewal, etc.
This (agreement, conveyance, indenture, or) lease,
made this day of , between the within-
n.amed A. B., of the one part, and the within-
n.imed C. D., of the other part, witnesseth :
That for and in consideration of the covenants
ai Id agreements, hereinafter contained, which on
tl part and behalf of the said C. D., his execu-
te rs, administrators, and assigns, are to be done
and performed, the said A. B. by these presents
d .ith lease, etc., unto the said C. D., his, etc., all
the following described real estate (describing- it),
a id all and singular other the premises respec-
tively comprised in the within-written lease, and
tl fereby leased to the said C. D. (except as therein
is excepted).
To have and to hold the said piece or parcel of
ground, messuage or tenement, and all and sin-
gular other the premises hereby leased (except as
aforesaid) unto the said C. D., his executors, etc.,
from the day of , which will be in the
y ear .
And when the said within-written lease will
ekpire, for and during and unto the full end and
t hrn of years longer, from thence next ensu-
ing, subject to the like rent, and payable in like
manner as within mentioned, and subject to the
like power of entry, as well on non-payment of
rent as on the happening of any other of the inci-
dents mentioned in the within-written proviso,
or condition of re-entry.
And it is hereby declared and agreed by and be-
tween the said parties to these presents, that
they and their respective heirs, executors, ad-
ministrators, and assigns, shall and will by these
presents, during the additional term of years
hereby granted, stand and be bound, for the said
premises, with the appurtenances, in the same
covenants, conditions, and agreements respec.-
tively, as they, the said parties, and their respec-
tive heirs, executors, administrators, and assigns,
do now stand bound, in and by the said within
lease ; it being the intent and meaning hereof,
that this present indorsed lease, and the addi-
tional term hereby granted, shall be upon the
same footing, and all the covenants, conditions,
and agreements, respectively therein contained,
be equally available, and have the like force and
effect, to all intents and purposes, as if every
article, matter, and thing, contained in the said
within lease, were inserted and contained in this
present indenture.
In witness whereof, etc.
Sn re< y .
Suretyship Agreement.
In consideration of the letting of the premisA
above described, and for the sum of one dollar
I, the undersigned, do hereby become surety for
the punctual payment of the rent, and perform-
ance of the covenants in the within-written
agreement mentioned, to be paid and performed
by the within-named tenant; and if any default
shall be made therein I do hereby promise and
agree to pay on demand, unto the within-named
landlord, such sum or sums of money as will be
sufficient to make up such deficiency, and fully
satisfy the conditions of the said agreement,
without requiring any notice of non-payment, or
proof of demand being made.
Given under my hand, this day of , A.
D. . E. F.
Lease Surrender of a Term of Years.
To the Person Having the Reversion,
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 :
Whereas, the said C. D., by his indenture of
lease, bearing date, etc., did lease, etc. (recite the
property and term as in the lease).
Now these presents witness :
That for and in consideration of dollars, to
the said A. B. in hand paid at the sealing and de-
livery of these presents by the said C. D., and to
the intent and purpose that the said term in the
said lands and premises may be wholly merged
and extinguished, he, the said A. B., hath given,
granted, and surrendered, and by these presents
doth give, grant, and surrender unto the said C.
D., and his heirs, all the said lands and premises
in the said indenture of lease contained and de-
mised as aforesaid, and all the estate, right, title,
interest, term of years, property, claim, and de-
mand whatsoever, of him, the said A. B., of, in,
to, or out of the same, or any part or parcel
thereof:
To have and to hold the said lands and prem-
ises to the said C. D., his heirs and assigns, and
to their own proper use and behoof.
And the said A. B. does hereby, for himself, his
heirs, executors, and administrators, covenant
and agree, to and with the said C. D., his heirs
and assigns, that he, the said A. B., hath not, at
any time heretofore, made, done, committed, ex-
ecuted, permitted, or suffered any act. deed, mat-
ter or thing whatsoever, whereby, or wherewith,
or by reason or means whereof, the said lands
and premises hereby assigned or surrendered, or
any part or parcel thereof, are, or is, or may, can,
or shall be, in anywise impeached, charged, af-
fected, or incumbered.
In witness whereof, etc.
Lease Surrender By Indorsement.
Know all men by these presents :
That I, the within-named A. B., in considera-
tion of dollars, to me in hand paid at and be-
fore the ensealing and delivery of these presents,
do, for myself, my executors and administrators,
bargain, sell, surrender, and yield up, from the
day of the date hereof, unto the within-named C.
D. , and his heirs (or his executors and administrators),
as well the within indenture of lease, as the
lands and premises therein mentioned, and the
term of years therein yet to come, with all my
right, title, and interest, thereto ; and I do here-
by povenant that the same are free and clear of
all incumbrances of what kind soever, at any
time by me, or by my privity, consent, or pro-
curement, done, committed, or suffered.
Given under my hand, etc.
Lease Tenendnni.
See HABENDUM, above.
Lease Underlease.
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, in consideration of the covenants and
conditions herein contained, on the part of the
said C. D., his executors, etc., to be respectively
CONVEYANCES.
333
ibterved and performed, the said A B. does lease
unto the said C. D., his executors, etc., all real
estate and buildings (which are now held by the said
A. B. under a lease granted to him by E. F., by inden-
ture bearing date, etc )
For a term of years, from the day of
then last past, together with all easements
and appurtenances whatsoever, to the said prem-
ises belonging, or in anywise appertaining ;
To have and to hold the said premises, with
their appurtenances, to the said C. D., his exec-
utors, administrators, and assigns, from the
day of now last past, for the full term of
years and three-quarters of another year, want-
ing two days ;
Yielding and paying therefor yearly, and every
year, during the said term hereby granted, ex-
cept the three last quarters of a year, wanting
two days, unto the said A. B., his executors, etc.,
the rent or sum of dollars, in even portions
quarterly, beginning on the day of the pres-
ent month, clear of all deductions for taxes or on
any other account ; And for the last three quar-
ters of a year, wanting two days, of the said
term, the rent or sum of dollars, to be pay-
able, clear of all deductions as aforesaid, on the
days and in the manner as follows: the sum of
dollars on, etc., the sum of dollars on,
etc., and the remaining sum of dollars on
the last day but one of the said term hereby
granted.
COVENANT TO PAY THE RENT RESERVED BY THE
ORIGINAL LEASE.
That said A. B., his executors, etc., will pay or
cause to be paid the yearly rent reserved by the
said lease so granted to him by the said E. F. as
aforesaid, and observe and perform the cove-
nants, conditions and agreements therein con-
tained, and will keep the said C. D. , his executors,
administrators and assigns, indemnified against
the payment of the same rent, and the perform-
ance of the same covenants, conditions and agree-
ments, except so far as such covenants, conditions
and agreements are conformable to the covenants,
conditions and agreements hereinbefore con-
tained, and ought to be observed and performed
by the said C. D., his executors, administrators,
and assigns.
COVENANT TO PRODUCE THE ORIGINAL LEASH, ETC.
That said A. B., his executors, etc., shall and
will from time to time, during the term hereby
granted, upon every reasonable request and no-
tice thereof in writing, for that purpose given to
him by the said C. D. , his executors, etc., pro-
duce or cause to be produced and shown, to the
aid C. D., his executors, etc., or to such person
or persons as they shall desire or require, the said
lease, bearing date, etc., as aforesaid and herein-
before referred to, unless the said A. B., his heirs,
executors, etc., shall be prevented or hindered
from so doing by fire or other inevitable accident,
In witness whereof, etc.
Lease Wharf, Machinery, Etc.
This (agreement, conveyance, indenture, or) lease,
made this day of , between A. B., of ,
lessor of one undivided half of the premises, of
the first part, C. D., of , lessor of other undi-
vided half of premises, of the second part, and
E. F., of , lessee, of the third part.
Whereas, the said A. B. and C. D. are seized
of and absolutely entitled to the dwelling-house,
ground, warehouses, offices, erections, wharf, fix-
tures, machinery, and things hereinafter men-
tioned, and intended to be hereby demised, as
tenants in common in equal shares ;
And whereas, the said A. B. and C. D. have
agreed to grant to the said E. F. a lease of the
said premises, upon the terms and in the man-
ner hereinafter expressed :
Now this indenture witnesseth :
That in consideration of the rent hereinafter re-
served, and of the covenants hereinafter con-
tained, and on the part of the said E. F., his
executors, administrators and assigns, to be ob-
served and performed, they, the said A. B. and C.
D. (according to their respective shares in the property
{tended to b; hereby demised), do, and each of them
does, hereby grant and demise unto the "aid E.
F., his executors, administrators and assigns, all
that messuage or dwelling-house, etc., and also
all that piece or parcel of ground, etc., with the
warehouses, offices or buildings, and other erec-
tions now standing and being thereon ; and also
all that wharf adjoining thereto, now called and
known by the name of wharf, situate, lying,
and being in , in the county of , and
bounded (here follows the description), and now in
the occupation of , and all which said heredi-
taments and premises are more particularly de-
scribed or delineated in the map or plan drawn
in the margin of (or- annexed to) these presents.
And also the use and enjoyment of all the ma-
chinery, cranes, fixtures, implements, utensils
and things which now are in or upon the said
premises, and the particulars whereof are speci-
fied in the schedule hereto annexed :
To have and to hold the said premises herein-
before demised or expressed so to be, unto the
said E. F., his executors, administrators and as-
signs, from the day of , for the term of
years thenceforth.
Yielding and paying therefor yearly, and every
year during the said term of years, the rent
of dollars, by equal half-yearly payments, on
the day of and the day of .
And the said E. F. hereby for himself, his hein t,
executors, administrators and assigns, covenant 8
in manner following :
That the said E. F., his executors, administra-
tors and assigns, shall and will (here follows a
covenant to pay rent and taxes, etc.)
That said E. F. shall and will at all times, dur-
ing the said term, at his and their own costs, as
often as occasion shall require, well and su fi-
ciently repair, support, maintain and keep in
good and substantial repair and condition t tie
dwellings, wharf, machinery, and premises hei e-
by leased or expressed so to be, and also all oth ;r
the erections and buildings which shall at at y
time during the said term be erected and S2t up p
or upon the said leased premises, and the same n
such good and substantial repair and conditio I,
shall and will, at the expiration or other soon*
determination of the said term of years,
peaceably and quietly surrender and give up uni o
the said A. B. and C. D., their heirs and assign:,
the reasonable use and wear thereof in the mean-
time only excepted.
Provided always, and it is hereby agreed and
declared, that if the said E. F., his executors, ad-
ministrators or assigns, shall be desirous of de-
termining the said term of , at the expiration
of their first ' years of the said term, and of
such his or their desire shall for that purpose de-
liver to the said A. B. and C. D., respectively, or
their respective heirs or assigns, months'
previous notice in writing, and shall pay and dis-
charge all arrerrs of rent, and perform all the
covenants hereinbefore contained, and on his
and their part tc be observed and performed,
then and in such case, at the expiration of the
said term of years, this present lease, and
everything herein contained, shall absolutely
cease and determine to all intents and purposes.
In witness whereof, tc.
Lease -Tears.
Lease f& v Years.
This (agreement, conveyance, indenture, or) lease,
made this day of , between A. B., of ,
and C. D., of , witnesseth :
That the said A. B. does hereby lease and con-
vey unto the said C. D. all that, etc. (describe tht
premises).
To hold for the term of years from the date
hereof;
Yielding and paying therefor yearly on every
first day of during the said term unto the
said A. B., or his assigns, the yearly rent of
(or tints : yielding and paying therefor, during the said
term the yearly rent of dollars, in two equal semi-
annual payments / or thus : yielding and paying there-
for during the said term the yearly rent of dollars,
in four equal payments quarter-yearly).
And the said C. D. covenants :
334
CONVEYANCES.
That he will pay the said rent in manner afore-
said ;
That he will deliver up the premises to the said
A. B. , or his attorney, peaceably and quietly at
the end of the said term, in as good condition as
the same now are, or may be put into by the said
A. B., reasonable use and wear and tear thereof
and fire and other casualty excepted ;
That he will pay all taxes and duties lawfully
levied and imposed on the premises demised
during the said term ;
That he will not do or suffer any waste in the
demised premises;
That he will not underlet the same or any part
thereof, nor permit any other person or persons
to occupy the same or any part thereof, nor
make or suffer to be made any alteration therein,
without the consent of the said A. B., or his as-
signs, for that purpose in writing first had and
obtained;
That the said A. B., or his attorney or agent,
may enter the premises for the purposes of view-
ing or making improvements at reasonable times
in the daytime. (Other clauses may be inserted
according to circumstances.)
MORTGAGES are conditional convey-
ances; conveyances of estates or property by
way of pledge, for the security of debt, and to
become void on payment of it. m It is an
estate created by a conveyance absolute in
form, but intended to secure the performance
of some act (generally specified in the convey-
ance as the condition, etc.), such as the pay-
ment of money, and the like, by the grantor
or some other person, and to become void if
the act is performed agreeably to the terms
prescribed (in the conveyance or) at the time
of making such conveyance."
AIL kinds of property, real or personal,
which are capable of an absolute sale, may be
the subject of a mortgage; rights in remainder
and reversion, franchises and choses in action,
may, therefore, be mortgaged. But a mere
possibility or expectancy, as that of an heir,
cannot.
Both real and personal property may be
mortgaged, and in substantially the same man-
ner, except that a mortgage being in its nature
a transfer of title, the laws respecting the ne-
cessity of possession of personal property and
the nature of instruments of transfer being
different, require the transfer and conveyance
to be made differently in the two cases.
Mortgages are to be distinguished from sales
with i contract for repurchase; the distinction
is important,? but turns rather upon the evi-
dence in each case than upon any general rule
of distinction.'
A mortgage differs from a pledge ; the gen-
eral property passes by a mortgage, whilst by
a pledge only the possession, or at most, a spe-
cial property passes. Possession is inseparable
ni-4 Kent. Comm. 136. 11-1 Washb. R. Prop. 475.
O-2 Story Eq. Jur. \ 1012 ; 4 Kent. Comm. 144 ; i Pow-
ell Mortg. 17, 23; 3 Mer. Ch. 667. |>-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 <hese presents :
That I, A. B., of (the city of) , in county,
and the State (or Commonwealth) of , am held
and firmly bound unto C. D., of the same city
and State aforesaid, in the sum of (five thousand)
dollars, lawful money ot' the United States of
America, to be paid to the said C. D., or his cer-
tain attorney, executors, administrators, or as-
signs; to which payment, well and truly to be
made, I do bind myself, my heirs, executors, and
administrators, and every of them, firmly by
these presents. Sealed with my seal, and dated
the day of , in the year of our Lord .
The condition of this obligation is such, that
if the above -bounden A. B. , or his heirs, execu-
tors, administrators, or any of them, shall and
d > 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 (<v- Com-
monwealth) of , or to any other attorney of the
said court, or of any other court, there or else-
where :
Wl ereas A. B. , in and by a certain obligation
bearing even date herewith, does stand bound
unto C. D. in the sum of (five thousand) dollars,
lawful money of the United States of America.
conditioned for the payment of the just sum ot
(two thousand and five nundu-d) dollars, like lawfuV
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 ensuing the date thereof,
and thereafter (half-yearly) from that day; pro-
vided, 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 prin-
cipal debt aforesaid shall, at the option of the said
C. D., his executors, administrators, or assigns,
become due and payable immediately, and pay-
ment of said principal and all interest thereon
maybe enforced and recovered at once, anything
therein contained to the contrary thereof not-
withstanding:
These are to desire and authorize you, or any
of you, to appear for me, my heirs, executors,
or administrators, in the said court or elsewhere,
in an action of debt there or elsewhere brought or
to be brought against me, the said A. B., 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 to confess judg-
ment thereupon against me. the said A. B., my
heirs, executors, or administrators, for the sum of
(fivethousandi dollars, lawful money of the United
States of America, debt, besides costs of suit, by
von sum itifonuatus, nihil ait it, or othetwise, as to
you shall seem meet : and for your or any of your
so doing, this shail be your sufficient warrant.
And I do hereby, for myself, my heirs, execu-
tors, and administrators, remise, release, and for-
ever quit-claim unto the said C. D., his certain
attorney, executors, administrators, and assigns,
all and al) mannerof errorand errors, misprisions,
misentries, defects, and imperfections whatever
in the entering of the said judgment, or any pro-
cess or proceedings thereon or thereto, or any-
wise touching or concerning the same.
In witness whereof, I have hereunto set my
hand and seal, the day of , in the year of
our Lord . A. B. \St*l.\
Signed, sealed, and delivered )
in presence of J
Mortgage of Real Property Assign-
ment.
Know all men by these presents :
That I, C. D., ot , in county. State of
,the mortgagee named in a certain mortgage
given by A. B.. of , in county, State of
, to said C. D., to secure the payment of
dollars and interest, dated the day of , re-
corded in the volume , on page , of the
registry of deeds for the county of , in consid-
eration of the sum of dollars to me paid by
E. F., of , in county, State of , the re-
ceipt of which is hereby acknowledged, do here-
by sell, assign, transfer, set over and convey unto
said E. F., his heirs and assigns, said mortgage
and the real estate thereby conveyed, together
with the promissory note, debt and claim thereby
secured, and the covenants therein contained.
To have and to hold the same to him, the said
E F., and his heirs and assigns, to his and their
use and behoof forever : subject, nevertheless, to
the conditions therein contained (and to redemp-
t on according to law).
In witness whereof, I have hereunto set my
hand (and seal), this day of .
[ Signature. ] \Seai. }
Executed and delivered)
in presence of j
For form of ACKNOWLEDGMENT, see that title
Mortgage of Real Property Assign*
ineiit.
With Pouter of Attorney.
Know all men by these presents:
That I, C D., of county, and State of ,
party of the first part, in consideration of the
CONVEYANCES.
34$
lum of dollars, to me In hand paid by E. F.,
of county, and State of , of the second
part, the receipt whereof is hereby acknowl-
edged, has and by these presents does grant, bar-
gain, sell, assign, transfer, and set over unto the
said party of the second part, his executors, ad-
ministrators, and assigns, a certain mortgage,
bearing date the day of , made by A. B.,
of county, and State of (here describe the
mortgage, and state the volume andftaft where it is reg-
istered),^ which reference may be made, together
with all the right, title, interest, and estate of said
party of the first part, in and to the premises de-
scribed and conveyed in and by said mortgage.
Together with the bond (or note) therein de-
scribed and the money due and to grow due
tnereon, with the interest accruing or accrued.
To have and to hold the same, unto the said
party of the second part, his executors, adminis-
trators, and assigns, for his and their use, subject
only to the proviso in the said mortgage men-
tioned :
And I do hereby make, constitute, and appoint
the said party of the second part, my true and
lawful attorney, irrevocably in my name or other-
wise, but at his own proper costs and charges, to
have, use, and take all lawful ways and means
for the recovery of the said money and interest ;
and in case of payment, to discharge the same as
fully as I might or could do if these presents were
not made.
In witness whereof, etc.
For form of ACKNOWLEDGMENT, see that title.
Mortgage Of Real Property Assign-
ment.
By a Corporation.
Know all men by these presents:
That the (give legal name of the corporation
assigning), existing as a corporate body, by and
under the laws of the State or of , of the first
part, for and in consideration of the sum of ,
lawful money of the United States, to the said
corporation paid by E. F., of , etc., of the sec-
ond part, the receipt of which is hereby acknowl-
edged, has and by these presents does grant, bar-
gain, sell, assign, transfer, and set over unto the
said party of the second part, a certain mortgage,
bearing date the day of , made by A. B.,
of , etc. (here briefly describe the mortgage), the
same being duly registered in the office of the re-
corder (or register) of deeds for the county of ,
and State of , to which mortgage reference
may be had.
Together with the (note or} bond or obligation
therein described, and the moneys due, and to
grow due thereon, with the interest:
To have and to hold the same unto the said
party of the second part, his heirs and assigns,
for his and their own use, subject only tp the pro-
viso in the said indenture of mortgage mentioned.
And the said parties of the first part do hereby
make, constitute, and appoint the said party of
the second part their true and lawful attorney,
irrevocable, in the name of the said parties of the
first part, or otherwise, but at the proper costs
and charges of the said party of the second part,
to have, use, and take all lawful ways and means
for the recovery of the said money and interest,
and in case of payment to discharge the same as
fully as the said parties of the first part might or
could do if these presents were not made.
In witness whereof, the said parties of the first
part have caused their common seal to be affixed
to these presents, and the same to be signed by
their president and secretary (or other offi t er\, this
day of . (Signature of o^p. ers.)
\Seal of corporation.}
Signed, sealed, and delivered )
in presence of j
For form of ACKNOWLEDGMENT, see that tide.
Mortgage, Ktc. Bond.
Secured by a Mortgage.
Know all men by these presents:
That I, A. B., of , in county, and State
tf , am held and firmly bound unto C. D., of
of , in county, and State of , in the
sum of (insert the amount of the penalty, usually
twice as inm.h as tht actual debt), to be paid to th
said C. D., his heirs, executors, administrators or
assigns, and to this payment I hereby bind my-
self, my heirs, executors, and administrators,
firmly by these presents.
Sealed with my seal, this day of .
The condition of the above obligation is:
That if I, the said A. B., or my heirs, executors,
or administrators, shall pay or cause to be paid
unto the said C. D.,the sum of (here in\r>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<r/]
in presence of /
i'ur frn' uf VXNUWLEU .MUNI , sec that title.
CONVEVANCES
Property Dower not
Released.
With Power of Sale to Secure a Bond.
This (conveyance, or indenture, or} mortgage,
made this day of , between A. B., of ,
etc., party of the first part, and C. D., of ,
etc., party of the second part, witnesseth :
Whereas, the said A. B. is justly indebted to
the said party of the second part, in the sum of
dollars, secured to be paid by a certain bond
or obligation bearing even date with these pres-
ents, in the penal sum of dollars, conditioned
for the payment of the said first-mentioned sum
of dollars, as by the said bond cr obligation,
and the condition thereof, reference being there-
unto had, may more fully appear.
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, according to
the true intent and meaning thereof, and also for
and in consideration of the sum of one dollar to
him in hand paid by the said party of the second
part, the receipt whereof is hereby acknowl-
edged, has and by these presents does grant, bar-
gain, sell, alien, release, convey, and confirm unto
the said party of the second part, and to his heirs
and assigns forever, all (here describe the premises).
Together with all and singular the tenements,
hereditaments, and appurtenances thereunto be-
longing or in anywise appertaining, and the re-
version and reversions, remainder and remain-
ders, rents, issues, and profits thereof: and also
all the estate, right, title, interest, property, pos-
session, claim, and demand whatsoever, as well
in law as in equity, of the said party of the first
part, of, in, and to the same, and every part and
parcel thereof, with the appurtenances :
To have and to hold the above-granted, bar-
gained, and described premises, with the appur-
tenances, unto the said party of the second part,
and his heirs and assigns, to his and their own
proper use, benefit and behoof, forever.
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 u.ito the said party of the second part,
or 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 men-
tioned in the saiJ condition according to the true
intent and meaning thereof, that then these pres-
ents, and the estate hereby granted, shall cease,
determine, and be void.
And the said A. B. , for himself and his heirs, ex-
ecutors, and administrators, does covenant and
agree, to pay unto the said party of the second
part, or his executors, administrators, or assigns,
the said sum of money and interest as mentioned
above and expressed in the condition of the said
bond ;
And if default shall be made in the payment of
the said sum of money above mentioned, or the
interest that may grow due thereon, or of any
part thereof, that then and from thenceforth it
shall be lawful for the said party of the second
part, or his executors, administrators, or assigns,
to enter into and upon all and singular the prem-
ises hereby granted or intended so to be, and to
sell and dispose of the same, and all benefit and
equity of redemption of the said party of the first
part, or his heirs, executors, administrators, or
assigns therein, at public auction ;
And put of the money arising from such sale,
to retain the principal and interest, which shall
then be due on the said bond or obligation, to-
gether with the costs and charges of advertise-
ment and sale of the same premises, rendering
the overplus of the purchase-money (if any there
shall be) unto the said A. B. , party of the first
part, or his heirs, executors, administrators, or
assigns, which sale, so to be made, shall forever
be a perpetual bar, both in law and equity, against
the said party of the first part, and his heirs and
assigns, and all other persons claiming or to claim
the premises, or any part thereof, by, from, or
under him or them, or any of them.
In witness whereof, the parties to these pres-
ents have hereunto set their hands (and seals), the
day and year first above written.
A. B. [Seaf.\
Sealed and delivered in ) C. D. [Sea/. ]
the presence of j
For form of ACKNOWLEDGMENT, see that title.
Mortgage or Real Property By Cor-
poration.
This (conveyance, or indenture, or) mortgage,
made this day of , between A. B., E. F.,
L. M., etc., the trustees of the society of the
church in the town of, etc., of the first part*
and C. D., of , etc., of the second part, wit-
nesseth:
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 fvllaivs the description}; together
with all and singular the hereditaments and ap-
purtenances thereunto belonging, or in anywise
appertaining.
This conveyance is intended (a< a mortgage) to se-
cure the payment of the sum of dollars, in
from the day of the date of these presents,
with annual interest; according to the con-
dition of a certain bond bearing even date here-
with, executed by the said party of the first part to
the said party of the second part; and the said trus-
tees of the society of the church in, etc.,
for themselves and their successors, do covenant
and agree to pay unto the said party of the sec-
ond part, his executors and administrators, or
assigns, the said sum of money, and interest, as
above mentioned, and as expressed in the con-
dition of the said bond :
And if default shall be made in the payment
of the said sum of money as above mentioned,
or the interest that may grow due thereon, or of
any part of either the said principal or interest,
that then, and from thenceforth, it shall be law-
ful for the said party of the second part, his ex-
ecutors, administrators, and assigns, to enter into
and upon all and singular the premises hereby
granted or intended so to be and to sell and dispose
of the same, and all benefit and equity of redemp-
tion of the said party of the first part, their suc-
cessors, or assigns therein, at public auction, ac-
cording to the act in such case made and pro-
vided:
And as the attorney of the said party of the
first part, for that purpose by these presents duly
authorized, constituted, and appointed, to make
and deliver to the purchaser or purchasers there-
of, a good and sufficient deed or deeds of convey-
ance in the law for the same, in fee simple ; and
out of the money arising from such sale, to re-
tain the principal and interest which shall then
be due on the said bond or obligation, together
with the costs and charges of the sale of the said
premises, rendering the overplus of the purchase-
money (if any there shall be) unto the said party of
the first part, their successors or assigns ; which
sales, so to be made, shall forever be a perpetual
bar, both in law and equity, against the said party
of the first part, their successors and assigns, and
against all other persons claiming, or to claim,
the premises, or any part thereof, by, from, or
under them, or any of them.
In witness whereof, the said parties of the first
part have hereunto set their hands and affixed
their corporate seal, the day and year first above
written. A. B. -,
E. F. I TRUSTEES OF,
L. M. f ETC. {Seal.}
etc. '
Sealed and delivered I
in presence of
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property To Cor-
poration.
This (conveyance, or indenture, or) mortgage,
made this day of , between A. B., of ,
etc., of the first part, and the mayor (or aldermcu,
CONVEYANCES.
*nd council? f ita :ity of , etc.), of the second
part, witneesewi .
That the said party of the first part, for and in
consideration 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
and by these presents does grant, bargain, sell,
alien, release, convey, and confirm unto the said
party of the second part, their successors and as-
signs, forever, all (here follows the description of the
premises conveyed) ; together with the tenements,
hereditaments, and appurtenances thereunto be-
longing, or in anywise appertaining; and also,
all the estate, right, title, interest, property, pos-
session, claim, and demand whatsoever, of the
said party of the first part, of, in and to the same ;
and the reversion and reversions, remainder and
remainders, rents, issues, and profits thereof:
To have and to hold the hereinbefore granted
and described premises, with the appurtenances,
unto the said party of the second part, their suc-
cessors and assigns, to their only proper use,
benent, and behoof, forever.
This conveyance is intended as a mortgage to
secure the payment of the sum of dollars, in
manner following, to wit : etc. ; according to the
condition of a certain bond bearing even date
herewith, executed by the said party of the first
part to the 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 aforesaid, as
above provided, then the party of the second part,
their successors and assigns are hereby empow-
ered 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 re-
tain 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.
And the said party of the first part does cove-
nant, promise, and agree, to and with the said
party of the second part, their successors and as-
signs, that he, the said party of the first part,
shall and will, well and truly pay to the said
party of the second part, their successors and as-
signs, the said sum of money, with the interest
thereon, at the time, and in the manner hereinbe-
fore mentioned, according to the condition of the
said bond.
In witness whereof, etc.
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Discharge
or Release.
See RELEASE, ETC., SATISFACTION, ETC., below.
The debt secured by the mortgage dated the
day of , and recorded with deeds,
book , page , has been paid to me by A.
B., and in consideration thereof I do discharge
the mortgage and release the mortgaged prem-
ises to said A. B., and his heirs.
Witness my hand (and seal), this day of .
C. D. [Seal.}
Executed and delivered )
in presence of j
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Roal Properly Discharge
or Release.
See RELEASE, ETC., SATISFACTION, ETC., below.
State of , county of , ss.
I,C. D., of , in county, State of , do
hereby certify that a certain mortgage, bearing
date the day of , made and executed by
A. B. , of , in county, State of , of and
upon the following described premises, to wit :
(describing them), and recorded in the office of
, in county, State of , in book of
mortgages, page , on the day of , at
o'clock, in the M., is paid. And I do hereby
consent that the same be discharged of record.
Dated the day of .
Executed in presence of) C. D. [Seal.}
w. s. ;
Fr form of ACKNOWLEDGMENT, see that fctle.
Mortgage of Real Property Discharge
and Satisfaction.
By a Corporation.
See RELEASE, ETC., SATISFACTION, BTC., below.
We, (give the legal name of the corporation),
a corporate body existing under and by virtue
of the laws of the State (or Commonwealth) of
, do hereby certify:
That a certain mortgage, bearing date the
day of , in the year , made and executed
by A. B., of and upon the following described
premises, to wit: (dcsiribitig them), and recorded
in the office of the register (or recorder) of, in, and
for the county of , in book of mortgages,
page , on the day of , is paid. .
In witness whereof, the said corporation hac
caused its corporate seal to be hereunto affixed,
this day of . ( Officer's signature.)
[ Corporate seal. }
Executed in presence of)
W. S. /
For form of ACKNOWLEPGMENT, see that title.
Mortgage of Real Property To Exec-
utors.
This (conveyance, or indenture, or) mortgage,
made this day of , between A. B., of ,
etc., of the first part, and E. X. and T. R., both
of , etc., executors of the last will and testa-
ment of D. D., deceased, of the second part, wit-
nesseth :
That the said party of the first part, for and in
consideration of the sum of dollars, to him
in hand paid by the party of the second part, at
or before the ensealing and delivery of these
presents, the receipt whereof .is hereby acknowl-
edged, has and by these presents does grant, bar-
gain, sell, alien, release, convey, and confirm unto
the said party of the second part, and the survi-
vors and survivor, and his and their assigns, for-
ever, all (here follows a description of the premises
mortgaged); 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, prop-
erty, possession, claim, and demand whatsoever,
as well in law as in equity, of the said party of
the first part, of, in and to the same, and every
part and parcel thereof, with the appurtenances :
To have and to hold the above-granted, bar-
gained, and described premises, with the appur-
tenances, unto the said party of the second part,
the survivors and survivor, and his and their as-
signs, to their only proper use, benefit, and be-
hoof, forever.
This conveyance is intended (as a mortgage) to
secure the payment of the sum of dollars, in
manner following, to wit : (give amounts, places,
times, etc., etc., of payment), according to the con-
dition of a certain bond, bearing even date here-
with, executed by the said party of the first part
to the party of the second part; and these pres-
ents shall be void if such payment be made.
And the said party of the first part, for himself
and his heirs, executors, and administrators, doth
covenant and agree to pay unto the said party
of the second part, and the survivors and survi-
vor, or hisortheir assigns, the said sum of money,
and interest, as above mentioned, and as ex-
pressed in the condition of the said bond ;
And if default shall be made in the payment of
the said sum of money above mentioned, or the
interest that may grow due thereon, or of any
part thereof, that then, and from thenceforth, it
shall be lawful for the said party of the second
part, the survivors or survivor, and his or their
assigns, to enter into and upon all and singular
the premises hereby granted, or intended so to
be, and to sell and dispose of the same, and all
benefitand equity of redemption of the said party
of the first part, his heirs, executors, administra-
tors or assigns therein, at public auction, accord-
ing to the act in such case made and provided.
And as the attorney, or attorneys, of the said
party of the first part, for that purpose by these
presents duly authorized, constituted, and ap-
pointed, to make and deliver to the purchaser or
23
35*
CONVEYANCES.
purchaser* thereof, a good and sufficient deed or
deeds of conveyance in the law for the same, in
fee simple, and out of the money arising from
such sale, to retain the principal and interest
which shall then be due on the said bond or obli-
gation, together with the costs and charges of
advertisement and sale of the said premises, ren-
dering the overplus of the purchase-money (if any
there shall be) unto the said party of the first part,
his heirs, executors, administrators, or assigns ;
which sale so to be made, shall forever be a per-
petual bar, both in law and in equity, against the
said party of the first part, his heirs and assigns,
and all other persons claiming or to claim the
premises or any part thereof, by, from or under
him, them, or any of them.
In witness whereof, etc.
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Extending
a Mortgage.
This (conveyance, or indenture, or) mortgage,
made this day of , by and between C. D.,
of , in county, State of , the owner
and holder of a certain promissory note (or bond)
for the principal sum of dollars, given by A.
B., of , in county, State of , and se-
cured by a mortgage of certain real estate in ,
in county, and State of , dated day
, and recorded in book , page , in mort-
gage record No. , for said county of ,
party of the first part, and the said A. B., party
of the second part, witnesseth :
That the said parties, for themselves and their
representatives, hereby mutually agree that the
time for the payment of the principal of said note
and mortgage debt shall be and the same is
hereby extended for the term of years from
the day of , and that the same is to bear
interest from said date at the rate of per cent.
per annum, payable on the day of and
the day of , in every year, until said prin-
cipal sum shall be fully paid.
And the said party of the second part hereby
covenants and agrees :
That he will not require the holders of said note
and mortgage to receive payment of said mort-
gage debt during said extended term ;
That he will punctually pay the interest now
due, and to grow due thereon, at the times and
at the rate aforesaid ;
That he will keep the mortgaged premises in
good repair, and insured against fire, and the
taxes thereon duly paid, according to the provi-
sions of said mortgage;
And that atthe expiration of said extended term
he will pay the said mortgage debt, with all in-
terest then due thereon.
It is expressly understood and agreed that no-
thing herein contained shall be construed to
impair the security of said party of the first part,
or his executors, administrators, or assigns, un-
der said mortgage, or to affect or impair the lien
on the real estate therein described which he has
by virtue of said mortgage, nor affect or impair any
rights or powers which he may have under the said
note and mortgage for the recovery of the mort-
gage debt, with interest, in case of non-fulfilment
of this agreement, or of any of the provisions
hereof, by said party of the second part.
In witness whereof, the said parties have here-
unto set their hands (and seals), the day and year
first above written. C. D. [Seal.]
Signed, sealed, and delivered 1 A. B. [.Scra/.j
:livered \
..N.S.;
i presence of W. T.
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Farther
Charge on Mortgaged Premises.
By Indorsement,
To all persons to whom these presents shall
come:
Whereas the within-named A. B. has advanced
and lent unto the within-named C. D. the further
sum of dollars, the receipt of which is here-
by acknowledged, and thereupon the said C. D.
has entered into a bond or obligation of even
date with these presents, to the said A. B., in the
penal sum of , with a condition thereunder
written for making void the same, upon payment
by the said C. D., his heirs, etc., unto the said
A. B., his executors, etc., of the sum of , with
interest for the same at the rate of per cent.
per annum, on the day.
Now know ye:
That for better securing unto the said A. B.,
his executors, etc., the payment of the said fur-
ther sum of , and the interest thereof, on thk
said day, according to the condition therein
expressed, he, the said C. D., does hereby, for
himself, his heirs, executors, administrators,
and assigns, covenant, promise, and agree
to and with the said A. B., his executors, etc.,
that all and singular the premises within
mentioned to be mortgaged (use the words of tk+
mortgage deed) to the said A. B. and his heirs
with their appurtenances, shall stand charged
with, and be a security unto him, the said A. B.
his executors, etc., as well for the payment of
the sum of , within mentioned, and the inter.
est thereof, as also for the payment of the said
further sum of , now lent and advanced as
aforesaid, and the interest thereof, and that the
said premises shall not be redeemed or redeem-
able, either in law or equity, until not only the
said sum of before lent, and the interest
thereof, but also the said further sum of now
lent, and the interest thereof, shall be fully paid
and satisfied unto the said A. B., his executois,
etc., according to the true intent and meaning of
the said bond or obligation, and of these presents.
In witness whereof, etc.
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Indemnity
to Mortgagee.
Know all men by these presents :
That I, A. B., of , etc., as a collateral se.
curity to C. D., for my full performance of
the covenant of indemnification hereinafter ex.
pressed, and according to the condition of this
conveyance, and in further consideration of the
sum of to me paid by the said C. D., the re-
ceipt whereof I do hereby acknowledge, have
given, granted, bargained, sold, and conveyed
unto the said C. D., his heirs and assigns, forever,
a certain piece or parcel of land, situate (here/ol-
lo-ws 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 always, nevertheless :
"Whereas A. R., of , etc., as administrator
de bonis non, of the goods and estate of D. D.,
late of , etc., has recovered judgment against
the said C. D., as administrator de bonis non, of
the goods and estate of D. X., late of , etc.,
for the sum of dollars ;
And whereas, pursuant to a certain bond, here-
tofore given by me to E. X., executrix of the last
will and testament of the said D. X., I, the said
A. B. , among other things, am holden and obliged
for the payment of all and any debts which
should appear against the said D. X.'s estate.
And whereas, at my request, and for my de-
fence against the said D. D.'s demand and judg-
ment, he, the said C. D., has undertaken to
review the said judgment, and to prosecute a
writ of review of the said D. D.'s action for that
purpose, at the next term of the supreme court,
to be holden at , etc., and, to prevent execu-
tion upon the said judgment, has given bond to
the said D. D., wherein he, the said C. D., is
principal, and I, the said A. B., and E. X. are
sureties,
These presents are on this condition
CONVEYANCES.
353
That if the said A. B., his heirs, executors, or
administrators, shall indemnify and save harm-
less the said C. D., his heirs, executors, and ad-
ministrators, against the said judgment, and
against every judgment, which shall be rendered
upon any writ of review, which shall be prose-
cuted as aforesaid, then this deed shall be void,
otherwise shall remain in full force:
And further, I, the said A. B., for myself, my
heirs, etc., hereby covenant with the said C. D.,
his heirs, etc., that I, my heirs, etc., shall and
will indemnify the said C. D., his heirs, etc.,
against the said bond of review, and any judg-
ment (as well the debt or damages, as the costs there-
on), which has been, or which shall be recovered
against him by the said D. D. as aforesaid, and
will save the said C. D., his heirs, etc., harmless
therefrom.
In witness whereof, etc.
For form of ACKNOWLEDGMENT, se that title.
Mortgage of Real Property Lease.
By an Assignee.
This (conveyance, or indenture, or) mortgage,
made this day of , between A. B., of ,
etc., of the first part, and C. D., of , etc., of
the second part :
Whereas, E. F. by a certain indenture of lease
bearing date the day of , did demise,
release, and to farm let, unto G. H., and to his
executors, administrators, and assigns, all and
singular the premises hereinafter mentioned and
described, together with the appurtenances, unto
the said G. H., and to his executors, administra-
tors, and assigns, for and during and until the
full end and term of years, from the day
of , and fully to be complete and ended, yield-
ing and paying therefor unto the said E. P., and
to his executors, or assigns, the yearly rent or
sum of dollars ; which said indenture of lease
and term of years therein mentioned and de-
mised, have been duly assigned to the said A. B.
And whereas, the said party of the first part is
justly indebted unto the said party of the second
part, in the sum of dollars, secured to be paid
by his certain bond or obligation, bearing even
date with these presents, in the penal sum of
dollars, lawful money as aforesaid, conditioned
for the payment of the said first mentioned sum,
with interest :
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, ac-
cording to the true intent and meaning thereof,
and also for and in consideration of the sum of
dollars, to him in hand paid by the said party
of the second part, at or before the ensealing and
delivery of these presents, the receipt whereof is
hereby acknowledged, has and by these presents
does grant, bargain, sell, assign, transfer, and set
over unto the said party of the second part, all
(here follows the description of the premises), with
all and singular the privileges and appurtenances
thereunto belonging or in anywise appertaining ;
and also all the estate, right, title, interest, term
of years to come and unexpired, property, posses-
sion, claim, and demand whatsoever, as well in
law as in equity, of the said party of the first
part, of, in, and to the said leased premises, and
every part and parcel thereof, with the appurte-
nances ; and also the said indenture of lease, and
every clause, article, and condition therein ex-
pressed and contained :
To have and to hold the said indenture of lease
and other hereby granted premises, unto the said
party of the second part, his executors, adminis-
trators, and assigns, to his and their only proper
use, benefit and behoof, for and during all the
rest, residue, and remainder of the said term of
years yet to come and unexpired ; subject, never-
theless, to the rents, covenants, provisions, and
conditions in the said indenture of lease men-
tioned :
Provided always, that these presents are upon
this express condition : That if the party of the
first part shall well and truly pay unto the said
party of the second part, the said sum of money
mentioned in the condition of the said bond or
obligation, and the interest thereon, at the time
and manner mentioned in the said condition, ac-
cording to the true intent and meaning thereof;
that then and from thenceforth these presents,
and the estate hereby granted, shall cease, deter
mine, and be utterly null and void ; anythin
hereinbefore contained to the contrary in an y
wise notwithstanding.
And the said party of the first part doth hereoy
covenant, grant, promise, and agree, to and wit.
the said party of the second part, that he snau
well and truly pay unto the said party of the sec.
ond part the sum of money mentioned in the con
dition of the said bond or obligation, and t'r ;
interest thereon, according to the condition
thereof; and that the said premises hereby con-
veyed now are .ree and clear of all incumbrancc
whatsoever, and tna'; ne has good right and law-
ful authority ^ convey 'cne same in manner anr
form as the came are nereby conveyed. And ii
default shall oe .nade in the payment of the saic
sum of money auave mentioned, or in the inter
est which shall accrue thereon, or of any part oi'
either, that then and from thenceforth it shall bo
lawful for the said party of the second part, ami
his assigns, to sell, transfer, and set over all the
rest, residue, and remaining term o f years, then
yet to come, and all other the right, title and in-
terest of the said party of the first part, of, in,
and to the same, at public auction, according to
law.
And as the attorney, or attorneys, of the id
party of the first part, for that purpose by these
presents duly authorized, constituted, and ap-
pointed, to make and deliver to the purchaser or
purchasers thereof, a good and sufficient deed or
deeds of conveyance in the law for the same, in
fee simple, and out of the money arising from
such sale, to retain the principal and interest
which shall then be due on the said bond or obli-
gation, together with the costs and charges of
advertisement and sale of the said premises, ren.
dering the overplus of the purchase-money (if an;f
there shall be) unto the said party of the first parl,
his heirs, executors, administrators, or assigns;
which sale so to be made, shall forever be a pei
petual bar, both in law and in equity, against th
said party of the first part, his heirs and assign!!,
and all other persons claiming, or to claim tha
premises, or any part thereof, by, from, or undr.'r
him, them, or any of them.
In witness whereof, etc.
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Life.
Support during, etc.
To Secure a Support to the Mortgagee during Life.
This (conveyance, or indenture, or) mortgage',
made this day of , between A. B.,of ,
etc., of the one part, and C. D., of , etc., of
the other part, witnesseth
That the said A. B., in consideration of the sum
of dollars, to him paid by the said C. D., the
receipt whereof the said A. B. hereby acknowl-
edges, does give, grant, bargain, sell, and convey
unto the said C. D., and his heirs and assigns, all
that, etc. (describing the premises), with the appur-
tenances, to have and to hold to the said C. D.,
and his heirs and assigns, to his and their soli
use and benefit forever.
(And the said A. B., for himself, his heirs, executors,
and administrators, doth covenant with the said C. D.,
his heirs and assigns, that he, the said A. B., immedi-
ately before the sealing and delivery hereof, is lawfully
seized in fee of the described premises ; that the same
are free from all incumbrances ; that the said A. B. hath
full power and lawful authority to convey the same as
aforesaid, and that he, the said A. B., his heirs, execu-
tors, and administrators, shall and will warrant and de-
fend the same to the said C. D., and his assigns, free
from the lawful claims and demands of all persons what-
soever.)
Provided always, that if the said C. D., his
heirs, executors, administrators or assigns, shall
well and sufficiently support and maintain the
a- Where the land is first conveyed from the mort-
gagee, the mortgagor should warrant against persons
claiming under himself only.
354
CONVEYANCES.
aid A. B. from the date of these presents, as
long as he shall live, with sufficient and conven-
ient boarding, lodging, clothing, washing, fuel
and all other necessaries and conveniences suit-
able for his comfortable support, and at such
place or places within this State (or Common-
wealth) as the said A. B. shall appoint, and give
reasonable notice from time to time, but the
expenses of removal to be borne by the said
A. B. after the first time, then the above convey-
ance or grant to be void, otherwise to be in full
force.
And the said C. D., for himself, his heirs, etc.,
doth hereby covenant with the said A. B., that
he, the said C. D., his heirs, etc., or some of them,
shall well and sufficiently support and maintain
the said A. B. from the date of these presents,
as long as he shall live, with sufficient and con-
venient boarding, lodging, clothing, washing,
fuel and other necessaries and conveniences,
suitable for his comfortable support, and at such
place within this commonwealth, as the said A.
B. shall from time to time appoint, and give
reasonable notice, etc.
And the said A. B. covenants with the said C.
D., his heirs, executors, administrators, and as-
signs, that so long as the said C. D.,his heirs,
etc., or any or either of them, shall faithfully per-
form, keep and observe the covenant and proviso
before mentioned, on the part of them, the said
C. D., his heirs, etc., to be performed and kept,
it shall be lawful for the said C. D., his heirs,
etc., peaceably to occupy and enjoy the premises
with the appurtenances, and receive the rents
and profits thereof, to his and their own use,
without the lawful interruption or disturbance of
the said A. B. , or any persons claiming under him.
In witness whereof, etc.
For form of ACKNOWLEDGMENT, see that title.
Mortgage, etc. Promissory Note.
Secured by Mortgage.
See BONDS, NOTES, ana BILLS, ante, pp. 149, 150.
$ . Place . Date .
days (or months, etc.) after date (or on the
day of ), I (or we, etc.) promise to pay to C.
D. dollars, at , with interest at the rate
of per cent, per annum, for value received.
This note is secured by a mortgage (or trust
deed) on (give memorandum of premises), of even
date herewith, from A. B. to C. D.
(Signed) A. B.
Mortgage of Real Property Purchase
Money.
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} ; being the same premises this day
conveyed to the said C. D. by the said A. B. and
W.,his wife ; and these presents are given to se-
cure the payment of part of the consideration
money of the said premises, together with all
and singular the hereditaments and appurte-
nances thereunto belonging, or in anywise apper-
taining.
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 ;
11 be
be made.
and these presents snail be void if such payment
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 seal) the day and
year first above written. [Signature (and seal.)}
Executed in presence of
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Release
of a Part.
See DISCHARGE, above ; SATISFACTION, below.
This (conveyance, or indenture, or} mortgage,
made this day of , between C. D.,of ,
in county, State of , party of the first part,
and A. B., of , in county, State of ,
party of the second part:
Whereas, the said party of the second part, by
indenture of mortgage, bearing date the day
of , for the consideration therein mentioned,
and to secure the payment of the money therein
specified, did convey certain lands and tene-
ments, of which the lands hereinafter described
are part, unto the said party of the first part ;
And whereas, the said party of the first part, at
the request of the said party of the second part,
has agreed to give up and surrender the lands
hereinafter described unto the said party of the
second part, and to hold and retain the residue of
the mortgaged lands as security for the money
remaining due on the said mortgage :
Now this indenture witnesseth :
That the said party of the first part, in pursu-
ance of the said agreement, and in consideration
of dollars to him duly paid at the time of the
execution and delivery of these presents, the re-
ceipt of which is hereby acknowledged, has and
by these presents does grant, release, quit-claim,
and set over unto the said party of the second
part, all that part of the said mortgaged land
(describing all that part of the mortgaged land which
it is intended to release, accurately and carefully, dis-
tinguishing it from that which is retained). To-
gether with the hereditaments and appurte-
nances thereto belonging ; and all the right, title
and interest of the said party of the first part, of,
in, and to the same, to the intent that the lands
hereby conveyed may be discharged from the
said mortgage, and that the rest of the lands in
the said mortgage specified may remain to the
said party of the first part as heretofore.
To have and to hold the lands and premises here-
by released and conveyed to the said party of the
second part, and his heirs and assigns, to his and
their use and benefit forever, free, clear, and dis-
charged of and from all lien and claim under and
by virtue of the indenture of mortgage aforesaid.
In witness whereof, the said party of the first
part has hereunto set his hand (and seal), the
day of . C. D.
Executed and delivered)
in presence of j
For form of ACKNOWLEDGMENT, see that title.
Mortgages of Real Property Release
and Quit-Claim.
See DISCHARGE, above ; SATISFACTION, below.
Know all men by these presents:
That I, C. D., of county, and State of ,
for and in consideration of one dollar, to me in
hand paid, and for other good and valuable con-
siderations, the receipt whereof is hereby con-
fessed, do hereby grant, bargain, remise, convey,
release, and quit-claim unto A. B. (or E. F.), of
county, and State of , all the right, title,
interest, claim, or demand whatsoever I may
have acquired in, through or by a certain mort-
gage, bearing date the day of , and re-
corded in the recorder's (or register's) office, of
, county, in book of , page ,
to the premises therein described, and which said
mortgage was made to secure a certain promis-
sory note (or bond) bearing even date with said
mortgage, for the sum of dollars.
Witness my hand (and se'al), this day of
. C. D. (Seal.}
For form of ACKNOWLEDGMENT see that titk.
CONVEYANCES.
355
Mortgage of Real Property Satis*
faction of Mortgage.
By Receipt Indorsed thereon.
9 . . Place . Date .
Received of C. D. (or E. F., the assignee of C. D.),
the within-named mortgagee, the sum of
dollars, in full satisfaction of the within mort-
gage. A. B.
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Satis-
faction of Mortgage.
Upon Real or Personal Property.
Know all men by these presents :
That the debt secured by mortgage upon the
following described property, situated in
, in county, in the State of , to wit :
Describing it), wherein A. B. is grantor, and C.
D. is grantee, and dated , a of which is
in volume , page , in the office of the
(register or recorder) of deeds of county, ,
has been fully satisfied, in consideration of which
laid mortgage is hereby released.
\Wit*li*\. etc.
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Security
for Indorser.
This (conveyance, or indenture, or) mortgage,
made the day of , between A. B., of ,
in the county of , and State of , of the first
part, and C. D., of , in the said county, of the
second part, witnesseth :
That the said party of the first part, for and in
consideration of the sum of dollars, grants,
bargains, sells, and confirms unto the said party
of the second part, and to his heirs and assigns,
all (here follows the description of the premises) ; to-
gether with all and singular the hereditaments
and appurtenances thereunto belonging or ia
anywise appertaining.
Whereas the said party of the second part, at
the request, and for the benefit of the said party
f the first part, has, on the day of the date of
these presents, indorsed a certain (note, Brother
security), made by the said party of the first part,
for the sum of dollars, bearing date , and
payable days after , to the order of ,
at .
This conveyance is intended to secure the party
of the second part for all principal and interest
money, costs, charges, and expenses which he
may be compelled to pay in consequence of the
failure of the said party of the first part to pay
and take up the said (note, or other security) at
maturity : and if the amount of the said (note or
other security) , principal and interest, shall be
paid by the party of the first part at maturity,
then these presents shall become void, and the
estate hereby granted shall cease and utterly
determine ;
But if default shall be made by the said party
of the first part in the payment of the said sum
of money^, or the interest, or of any part thereof,
at the time hereinbefore specified, and the same
be paid by or collected of the party of the second
part, the said party of the first part hereby
authorizes and empowers the party of the second
part, his heirs, executors, administrators and as-
signs, to sell the said premises hereby granted
at public auction, and convey the same to the
purchaser in fee simple, agreeably to the act in
such case made and provided ; and out of the
money arising from such sale, to retain such
sum, or sums of money, as may have been paid
by or collected of the said party of the second
part, as above mentioned, together with all costs
and charges, and pay the overplus (if any) to the
said party of the first part, his heirs, executors,
administrators, or assigns.
In witness whereof, etc.
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Security,
Sale, etc.
With Power of Sale.
This (conveyance, or indenture, or) mortgage,
made this day of , between A. B., of ,
etc. , party of the first part, and C. D. , of , etc. ,
party of the second part, witnesseth ;
That the said party of the first part, in considv
eration of the sum of dollars to him duly paid
before the delivery hereof, has bargained and
sold, and by these presents does grant and con-
vey to the said party of the second part, and his
heirs and assigns forever, all (here describe the
premises), with the appurtenances, and all the
estate, right, title, and interest of the said party
of the first part therein.
This conveyance is intended as a security for
the payment of (state what the amounts, f faces,
times, etc., etc., of payment), 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, then
the said party of the second part, or his execu-
tors, administrators, or assigns, are hereby ar-
thorized to sell the premises above mortgaged, or
so much thereof as will be necessary to satisfy
the amount then due, with the costs and expense*
allowed by law.
In witness whereof, the said party of the firs*
part has hereunto set his hand and seal, the day
and year first above written. A. B. [Seat.]
Executed and delivered in the)
presence of W. S. j
For form of ACKNOWLEDGMENT, see that title.
Mortgages of Real Property Security.
Sale, etc.
With Power of Sale.
This (conveyance, or indenture, 0~) mortgage,
made this day of , between A- B., of ,
party of the first part, and C. D., of , party of
the second part :
Whereas, the said party of the first part is
justly indebted to the said party of the second
part in (here describe the amount and terms of the
debt, or note, or bond).
Now this indenture witnesseth:
That the said party of the first part, for the bet-
ter securing the debt (or note, or bond) above de-
scribed, according to the true intent and meaning
thereof, and also for and in consideration of the
sum of one dollar to him in hand paid by said party
of the second part, at or before the execution and
delivery of these presents, the receipt of which 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, and to his heirs and assigns, forever,
all (here describe the premises mortgaged). Together
with all and singular the tenements, heredita-
ments and appurtenances thereunto belonging or
in anywise appertaining, and the reversion and
reversions, remainder and remainders, rents, is-
sues, 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, of, in,
and to the same, and every part and parcel there-
of, with the appurtenances:
To have and to hold the above-granted, bar-
gained, and described premises, with the appur-
tenances, unto the said party of the second part,
and his heirs and assigns, to his and their own
proper use, benefit, and behoof forever.
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 to the said party of the second part, or
his heirs, executors, administrators, or assigns,
the above-described debt (or note, or bond), accord-
ing to terms and tenor thereof, then this deed
(and also said debt, or note, or bond) shall be wholly
discharged and void ; and otherwise shall remain
in full force and effect.
And if default shall be made in the payment of
the said sum of money above mentioned, or the
interest that may grow due thereon, or of any
part thereof, that then and from thenceforth it
shall be lawful for the said party of the second
part, or his executors, administrators, and as-
signs, to enter into and upon all and singular the
premises hereby granted, or intended so to be,
and to sell and dispose of the same, and all bene-
fit and equity of redemption of the said party of
the first part, or his heirs, executors, adminisU*-
356
CONVEYANCES.
iors or assigns, therein, at public auction, accord-
Bg to the act in such case made and provided.
And as the attorney of the said party of the
first part, for that purpose by these presents duly
authorized, constituted, and appointed, to make
and deliver to the purchaser or purchasers there-
of, a good and sufficient deed or deeds of convey-
ance in the law for the same, in fee simple, and
out of the money arising from such sale, to retain
the principal and interest which shall then be
due on the said debt (or note, or bond i, 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
t le said party of the first part, or his heirs, ex-
e-utors, administrators, or assigns ; which sale,
so to be made, shall forever be a perpetual bar,
both in law and equity, against the said party of
the first part, or his heirs and assigns, and all
other persons claiming or to claim the premises,
or any part thereof, by, from, or under him, them,
or either of them.
In witness whereof, the parties to these pres-
ents have hereunto set their hands (and seals), the
day and year first above written. A. B. [Seal.]
C. D. [Seal.]
Signed, sealed, and acknowledged )
in presence of W. T., N. S. j
For form of ACKNOWLEDGMENT, see that title.
Mortgage of Real Property Security
oil Unliquidated Amount.
Use GENERAL FORMS, above.
To have and to hold the above-described prem-
ises, with the appurtenances, to the said party of
the second part, his heirs and assigns, forever.
Provided always, and these presents are upon
the express condition that if the said A. B., his
heirs, executors, or administrators, shall well
and truly pay, and save harmless and indemnify
the said C. D. and E. F., and each of them, of
and from all liabilities which they or either of
them may have at any time contracted to or for
said A. B., either as surety, indorser, guarantor,
or otherwise, whether now due or yet to grow
due, and shall save harmless the said C. D. and
E. F., and each of them, of and from all dam-
ages, costs and charges, on account of the same,
according to the conditions of a certain bond or
writing obligatory bearing even date herewith,
executed by the said A. B. to the said parties of
the second part, then these presents shall cease
and become of no effect ;
But in case default shall be made in the pay-
ment of all or any part of the said liabilities as
the same shall become due, at the time or times
limited for the payment thereof, then in such case
it shall be lawful, etc. (as in other forms, above).
Mortgage of Real Property Term of
Years.
Know all men by these presents:
That I, A. B., of , etc., in consideration of
dollars, to me paid by C. D., of , the re-
ceipt of which is hereby acknowledged, by these
presents do convey and mortgage unto the said
C. D., his executois, administrators, and assigns,
all those three several pastures, etc. (describing
them}.
To have and to hold the premises, with their
appurtenances, unto him, the said C. D., his ex-
ecutors, etc., from the date hereof, during the
full term of years, next ensuing.
Yielding and paying therefor yearly during the
said term, unto the said A. B., his heirs, execu-
tors, administrators, or assigns, one pepper corn,
if it be lawfully demanded on the day of .
And I, the said A. B., for myself, my heirs, etc.
(insert a covenant for quiet enjoyment during the
term), etc., etc.
Provided nevertheless, that if I, the said A. B.,
my heirs, executors, administrators, or assigns,
shall well and truly pay, or cause to be paid,
unto the said C. D., his executors, etc., the sum
of on the day of next ensuing the
date hereof, then this present demise and grant
shall be void, etc.
In witness whereof, etc.
form of ACKNOWLBUGMBXT, see that title.
MORTGAGES OF PERSONAL PROP-
ERTY-CHATTEL MORTGAGES.
See VARIOUS CLAUSES, post.
For forms of ACKNOWLEDGMENT, see that title.
Mortgage of Personal Property or
Chattel Mortgage.
Know all men by these presents :
That I, A. B., hereby sell and assign to C. D. all
the tools and materials now in my shop at .
This sale is intended as a security for the pay-
ment of dollars, with interest, on or before
the expiration of from the date hereof; which
payment, if duly made, will render this convey-
ance void.
Witness my hand, this day of .
[Signature of witness.] A. B.
Mortgage of Personal Property or
Chattel Mortgage.
Know all men by these presents :
That I, A. B.,of , acknowledge myself to b
indebted to C. D., of said , in the sum of
dollars, with interest from this date (or from the
day of ), and for the security of said sum
I do hereby mortgage and sell and assign to the
said C. D. all my property of every description,
situate, lying, and being in the house, corner of
street and avenue, in the city of ;
And I hereby authorize and empower the said
C. D. to take possession of said property and ef-
fects, he to sell the same, and appropriate the
proceeds to the payment of said debt and in-
terest.
Witness my hand and seal, this day of
. A. B. [Sea!.]
Mortgage of Personal Property or
Chattel Mortgage.
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 ,
by these presents do grant, etc., unto the said C.
D. all the goods and chattels, wares, effects, and
merchandise, mentioned and specified in the
schedule hereunder written:
To have and to hold all and singular the said
goods, etc., unto the said C. D., his executors,
administrators, and assigns, forever.
Provided, nevertheless, that if I, the aid A. B.,
my executors, administrators, or assigns, or any
of them, do and shall well and truly pay unto the
said C. D., his executors, etc., the su.n of ,
with legal interest for the same, on or before the
day of ,then these presents, and every
clause, article, and thing herein contained, shall
cease and be void ; otherwise to be in f'tll force.
In witness whereof, etc.
Mortgage of Personal Property or
Chattel Mortgage.
Know all men by these presents :
That I, A. B., of the town of .county of
, and State of , for and in consideiationof
dollars, to me in hand paid by C. D > 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-
<l-Swineburne Wills, pt. i,?2; Godol.pt. i, c. i,?2.
e-4 Kent. Comm. 576 : 2 Sharsw. Bl. Comm. 500; i
Jarman Wills, Perk. Ed. 130-136, and GENERAL STAT-
UTES. f-Swineburne Wills, pt. i, 12, pi. i; Godol-
phin, pt. i, c. 4, 9. 6. jjf-Genesis xlviii. 22 ; Gal. iii. 15 ;
Plutarch's Life of Solon; Roman Laws of the Twelve
Tables. b-i3 Barb. 106. i-Wigram Wills, n. j- 3 B.
& Aid. 489 ; 2 W. Bl. 1043 ; 4 Mass. 462 : 2 Nott. &
M'C. 472; 5 Conn. 168; 4 S. & R. 567. k-i Greenl.
Ev. 273 ; i Jarman Wills, Perk. Ed. Ch. 7, \ 2 n. 1-7
Johns. 394 ; 4 Wend. 474, 485 ; 9 Mass. 307 ; 4 Conn.
550 ; 5 Id. 262 ; 8 Vt. 373 ; i N. H. i ; 4 Id. 191 ; 2
Dall. 266 ; 4 S. & R. 297 ; 3 H. & M. 502 ; i Harr. &
M. H. 162; 4 Kent. Comm. 531. m-Ambl. 651; 2
Saeed, 305. 11-33 Penn. St. 9 ; 2 Sneed, 305 ; 4 Wheat.
erty, by will, to another.* The word may be
construed " devise." 1 A gift, by will, of per-
sonal property, is called a " bequest."
BLINDNESS. See TESTATOR CAPACITY,
below.
CANCELLATION of a will, with an intention
to revoke, is a revocation, and the destruction
or obliteration need not be complete^ but must
be by the testator or in his presence, and by his
direction and consent. k It must be done with
an intention to revoke ; and evidence is admis-
sible to show with what intention the act is
done. 1
CHARITIES are gifts to general public uses,
which may be extended to the rich as well as
the poor. They embrace gifts to the poor
of every class, including gifts to poor relations,
where the intention is manifest ; n for every de-
scription of college and school, and their in-
structors and pupils, where nothing contrary
to the fundamental doctrine of Christianity is
taught ; to all institutions for the advancement
of the Christian religion; to all churches,?
chapels, hospitals, orphan asylums.^ dispensa-
ries/ and the like ; to general public purposes, 1
as supplying water or light to towns, building
roads and bridges, keeping them in repair,
etc.," and to other charitable purposes general
in their character/
A CODICIL is an addition to, or qualification
of, a last will and testament.
All codicils are a part of the will, and are
to be so construed." A codicil duly executed,
and attached or referring to a paper defectively
executed as a will, has the effect to give operation
to the whole as one instrument.* There may
be numerous codicils to the same will; in such
cases the later ones operate to revive and re-
publish the earlier ones.? But in order to set
up an informally executed paper by means of
one subsequently executed in due form, refer-
ring to such informal paper, the reference must
be such as clearly to identify the paper. 1
It is not competent to provide by will for the
disposition of property to such persons as shall
be named in a subsequent codicil, not executed
according to the prescribed formalities in regard
to wills ; since all papers of that character, in
whatever form, if intended to operate only in
the disposition of one's property after death,
are of a testamentary character, and must be so
treated.'
CY PRES (as near as) is the rule of construc-
tion applied to a will (but not to a deed) by
518; i Sumn. C. C. 276; 10 Penn. St. 23; 35 N. H.
445; 28 Penn. St. 23. 0-7 B. Mon. 351, 481 ; 4 Ired.
Eq. 19 ; 30 Penn. St. 425. |>-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.
<io. 1-3 Ves. Ch. 257 ; 17 Id 481 ; 19 W. 547 ; i Rop.
Leg- q-3. j-7 Ves. Ch. 522 ; 19 Id. 73 ; i Rop. Leg. oo.
&M JJacon Abr. Curtesy (D) Legatee. U-i Wms. Ex.
more restricted meaning in order to carry out
the testator's intention.^
LAST WILL is a disposition of real estate to
take effect after death. It is strictly distinguish-
able from " testament," which is applied to
personal estate ; k but the words are generally
used together, " last will and testament," in a
will, whether real or personal estate is to be
disposed of.
LEGACIES are gifts by last will. The term is
more commonly applied to money or personal
property, although sometimes used with refer-
ence to a charge upon real estate.' An abso-
lute legacy is one without condition, to vest
immediately. 111 An additional legacy is one
given to a legatee to whom a legacy has al-
ready been given; it may be either by an in-
crease in a codicil of a prior legacy given in
the will, or to another legacy added to that al-
ready given by the will. An alternative legacy
gives two or more things without designating
which. A conditional legacy is a bequest
whose existence depends upon the happening
or not of some uncertain event, by which it is
to take place or be defeated. A general legacy
is one so given as not to amount to a bequest
of a particular thing or money of the testator,
distinguished from all others of the same kind.'
An indefinite legacy is a bequest of things
which are not enumerated or ascertained as to
numbers or quantities; for instance, a bequest
by a testator of all his goods, all his stocks in
the funds.<> 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. <l-
4 Dow. 93. e-i Jac. & W. Ch. 388. f- 4 My. & Cr.
299 ; 2 My. & K. 403.
CONVEYANCES.
of it be perishable, as long annuities, it shall be
sold and converted into personal property, for
the benefit of all concerned.' In personal prop-
erty there cannot be a remainder in the strict
sense of the word, and therefore every future
bequest of personal property, whether it be pre-
ceded or not by any particular bequest, or lim-
ited on a certain or uncertain event, is an ex-
ecutory bequest, and falls under the rules by
which that mode of limitation is regulated. 8 An
executory bequest cannot be prevented or de-
stroyed by any alteration whatsoever in the estate
out of which or after which it is limited : h and
this privilege of executory bequests, which ex-
empts them from being barred or destroyed, is
.he foundation of an invariable rule, that the
event on which an interest of this sort is per-
mitted to take effect is such as must happen
within a life or lives in being, and twenty-one
years and a fraction of another year, allowing
the period of gestation afterwards. 1 Legacies
may be made conditional ; in such case the con-
dition may be either precedent or subsequent ;
in the former case no interest vests in the legatee
until the performance of the condition, and in
the latter it is liable to be defeated by the fail-
ure or non-performance of the condition.!
No particular form of words is requisite to
constitute one a residuary legatee. It must ap-
pear to be the intention of the testator that he
shall take the residue of the estate, after pay-
ment of debts and meeting all the appoint-
ments of the will.* The assent of the executor
to a specific legacy is requisite to vest the title
in this legatee. 1 This will often be presumed
where the legatee was in possession of the thing
at the decease of the testator and the executor
acquiesces in his right.
Names. Mistakes in the name or de-
scription of legatees may be corrected when-
ever it can be clearly shown by the will itself
what was intended. The only instance in
which parol evidence is admissible to show the
intention of the testator as to a legatee imper-
fectly described is that of a strict equivocation ;
that is, where it appears from extraneous evi-
dence that two or more persons answer the de-
scription in the will. See COUSINS, above.
Nephews and nieces are terms which, in
the description of a legatee, will receive their
strict import, unless there is something in the
will to indicate a contrary intention. P
Wife. A bequest to " my beloved
wife," not mentioning her by name, applies ex-
clusively to the wife at the date of the will, and
is not to be extended to an after-taken wife.i
f-2 M. & K. 699, 701, 702 ; 7 Ves. 137 ; 4 M. & C. 298.
(Cf-See Feorne Cont. Rem. 401, n. h-8 Co. 96, a.; 10
Id. 476. i-FeomeCont. Rem. 431. j-2 Wi.is. Ex. 1131
et seq. k-3 Wms. Ex. 1310 et sey. l-i Wash. 308 : i
Bail. 504; I Harr. & J. 138 ; 2 Ired. Eq. 34 : 12 Ala.
N. S. 532; 4 Fla. 144 ; n Humphr. 559 ; 2 Md. Ch.
Dec. 162. m-See 4 Dev. 267 ; 3 Leigh, 682 ; 6 Pick.
26 ; I Call, 55. n-i Phill. Ch. 279, 288 ; 2 Younge &
C. Ch. 72 ; 10 Hare. Ch. 345 ; 12 Sim. Ch. 521 : 8 Md.
496 ; 9 Eng. L. & Eq. 269 ; 15 N. H. 317 ; 32 Id. 268 ;
4 Johns. Ch. 607; 33 Vt. 336; 7 Ired. Ex. 201. -8
Bingh. 244 ; 5 M. & W. 363 ; 2 Younge & C. Exch. 72 ;
n Ad. & E. 451 ; Wig. Wills, 2 Ed. 78. p-M Sim. Ch.
One not lawfully married may, nevertheless,
take a legacy by the name or description of the
wife of the one to whom she is reputed to be
married, 1 " but not if the reputed relation is the
motive for the bequest. 8
Payment. A legacy given generally, if no
time of payment be named, is due at the death
of the testator, although not payable until the
executor has time to settle the estate in dus
course of law.' Legacies are not by common
law due until one year after the decease of the
testator, in order to allow the executor time to
dispose of the estate and pay debts ; and some-
times, by special order of the probate court, this
is extended, from time to time, according to
circumstances. 11 Where legatees are under dis-
abilities, as infancy or coverture, the executor
cannot discharge himself by payment, except
to some party having a legal right to receive
the same on the part of the legatee, which in
the case of an infant is the legally appointed
guardian, and in the case of a married woman
is her husband ; but in the latter case the ex-
ecutor may decline to pay the legacy until the
husband make a suitable provision out of it for
his wife according to the order of the proper
court. 7 The proper course in such case is foi
the executor to deposit the money on interest
subject to the order of the court."
Translation is the bestowing of a legacy
which has been given to one, on another; this
is a species of ademption; but it differs from it
in this, that there may be an ademption without
a translation, but there can be no translation
without an ademption. 1
MIND AND MEMORY. See TESTATOR, below.
MOIETY is the half of anything: as if a testator
bequeath one moiety of his estate to A., and the
other to B., each shall take an equal part.'
MOVABLES. In a will " movables " is used
in its largest sense, but will not pass a growing
crop, nor building materials on the ground. 1
MYSTIC TESTAMENT is a will under seal." It
is a form of making a will which consists
principally in enclosing it in an envelope and
sealing in the presence of witnesses.
NUNCUPATIVE. See introduction to this
subject, above.
OLOGRAPH is a will that is entirely written,
dated, and signed by the hand of the testator
himself. 6
PENCIL is any instrument made of black
lead, red chalk, or other suitable substance, foi
writing. Any instrument for writing without
ink. A will written with a pencil cannot on
this account be annulled.
214; i Jac. Ch. 207; 4 Mylne & C. Ch. 60: 8 Beav.
Rolls. 247 ; 2 Yeates, 196 : 3 Barb. 466 : 3 Halst. 462.
q-i P. Wms. 992; i Russ. & M. Ch. 629; 8 Hare Ch.
131. r-i Keen Ch. 685; 9 Sim. Ch. 615. 3-4 Ves.
Ch. 802 : 4 Brown Ch. 90; 5 Mylne & C. Ch. 145. See
i Keen Reg. Cas. 685. t-See DEVISE, above. 11-5
Binn. 475; 5 Paige, 573: i Des. 112; 6 P.eav. Rolls,
298. v-See i P. Wms. 285; i Johns. Ch. 3: 9 Vi 41;
1 Drewe, 71. w-2 Wms. Ex. 4, Am. Ed. 1206-1220 x-
Bac. Abr. Legacies (C). y-Litt. 125; 3 C. B. 274, 283.
z-2 Wms. Ex. 1014; 3 Ak. Mart>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. <l-8 Ves. 44: i Johns. Ch. 153; 12 Vt. 589: Story
Conn. L. JJ 512-517. -4 Pick. 33 : 3 Bac. Abr. 34 E.r.
f-4 Pick. 33; i Wms. Ex. 201 : i Jarman Wills, 224. ff-
x Greenl. Ev. j$ 691, 692; i Jarman Wills, 2*6, and
note, h-9 Vcs. 381 : 19 Johns. 186; i Jarman Wills,
226, and note: and see j* 17 Ga. 364; 9 Pick. 350; 6
Rand. 33. i-8 Md. 15; n N. Y. 220; 30 Penn St. 218;
i Jarman Wills. 228, and notes ; but see 19 lohns. 386.
tor's lands in A.* 2. To set up a will which
has been n;voked.P
RESIDUK is that which remains of something
after taking away a part of it ; as, the residue
of an estate, a part which has not been par-
ticularly devised by will. A will bequeathing
the general residue of personal property passes
to the residuary legatee everything not other-
wise effectually disposed of; and it makes no
difference whether a legacy falls into the estate
either by lapse or as void at law, the next of
kin is equally excluded."!
The residuary clause is that clause in a will
by which the part of the property is disposed
of which remains after satisfying previous be-
quests and devises. 1 " The residuary estate is
what remains of the testator's estate after de-
ducting the debts and the bequests and devises.
See DEVISEE and LEGATEE, above.
SINGULAR NUMBER. In law the singular
number often includes the plural. A bequest
to " my nearest relation," for example, will be
considered as a bequest to all the relations in
the same degree who are nearest to the testator.'
A bequest made to " my heir " by a person whci
had three heirs, will be construed in ihe plural.
TERROR. See IN TERRORUM, above.
TESTAMENT. A testament is a solemn, au-
thentic instrument of writing, by which a per-
son declares his will as to the disposal of his
estate and effects after his death. A testament,
to be valid, must be made when the testator if.
of sound mind; and it must be subscribed,
witnessed, and published in such manner as
the law prescribes. Testaments are nuncupa-
tive or written. See the beginning of this
article, and LAST WILL, above.
TESTATE is the having made a valid will.
The condition of one who leaves a valid will at
his death.
TESTATOR is a person who makes and leaves
a testament or will at death. Jn general, all
persons may be testators ; but to this rule there
are various exceptions : I. Persons who are de-
prived of understanding cannot make vrills;
idiots, lunatics, and infants are among this
class. 2. Persons who have understanding,
but being under the power of others cannot
freely exercise their will ; and this the law pre-
sumes (in the absence of a statute to the con-
trary) to be the case with a married woman,
and therefore she cannot make a will without
the express consent of her husband to the par-
ticular will. When a woman makes a will
under some general agreement on the part of
her husband that she shall make a will, the
instrument is not properly a will, but a writing
j-i Green]. Ev.
also 2 Nott. & M'C. 400. k-i Phill
Green. Ch. 220; i Jarman Wills, 231, note, l-i Ves.
21, 570; 2 Kay_& J. Ch. 112; see
hill. Eccl. 149; i
ote. l-i Ves.
Ch. 440; 2 Rand. io~2 ; 9 Johns. 312. in-Com. 381 ; 3
i rown Parl. Cas. 85. n-i Ves. Sr. Ch. 437; 3 Bineh.
614: i Ves. Ch. 486; 4 Brown Ch. 2. o-Cro. Eliz.
493 ; see i P. Wms. 275. p-2 Bouv. Inst. nn. 2162-
2264. q-i5 Ves. Ch. 41* ; 2 Mer. Ch. 392. r-4 Kent
Comm. 541 ; 2 Wms. Ex. 1014, n. 2. s-i Ves. St. Ch.
357 : i Brown Ch. 293. t-i Russ. Cr. Cas. 384. U-
Domat. Book i, tit. i, i
CONVEYANCES.
in the nature of a will or testament. 3. Per-
sons who are deprived of their free will cannot
make a testament ; as, a person in duress."
Age, A testator must be of full age. See
DEMENTIA SENILE, and law of various States,
as given below.
Blindness is so far an incapacity that it re-
quires express and satisfactory proof that the
testator understood the contents of the will, in
addition to what is required in other cases.'
Deaf and dumb persons will labor under a
similar inconvenience, and especially in com-
municating with the witnesses, unless they
have been educated so as to be able to write.* 5
But the witnesses must be present with the tes-
tator, be within the possible cognizance of his
remaining senses. h
Delirium from disease or stimulus, while the
paroxysm continues to such an extent as to de-
prive a person of the right exercise of reason, is
a sufficient impediment to the execution of a
will. 1 But there is not the same presumption
ol the continuance of this species of menial
perversion, whether it proceed from the intoxi-
cation of stimulus or the delirium of fever, as
in ordinary insanity .J
Dementia senile. This is a defect of capac-
ity frequently in question in courts of justice in
testing the validity of wills. If the testator
has sufficient memory remaining to be able to
collect the elements of the transaction, viz. :
the amount and kinds of property he had,
and the number of his children, or other per-
sons entitled to his bounty, and to hold them
in mind sufficiently to form an understanding
judgment in regard to them, he may execute a
valid will. k Age itself is no sure test of inca-
pacity. 1 But when one becomes a child again,
he is subject to the same incapacities as in his
first childhood.
Idiots are wholly incapable of executing a
will, whether the defect of understanding is
congenital or accidental.
Lunatics are incapable of executing a last
will and testament, except during such lucid in-
terval as allows the exercise of memory and
judgment. It must be an absolute, but not
necessarily a perfect, restoration of reason
and reflection, and not a mere temporary remis-
sion. 11
Mind and memory. A testator must have a
sound and disposing mind and memory. In
other words he " ought to be capable of mak-
ing his will with an understanding of the nature
af the business in which he is engaged, a re-
collection of the property he means to dispose
e-2 Bl. Comm. 497; 2 Bouv. Inst. n. 2102, et sea. (-
i Rob. Eccl 278 ; 3 Strobh. 297 ; i Jarman Wills, 49.
|f-Wharton & btille, Met. Jur. \ 13. h- Richardson, J. ;
i Speei-N, 256,257; see i Wins Ex. 17,18. i-Ray
las. % 253, 254, 390 ; Taylor Med. Jur. 626; Wharton
& Stiil'e, ?? 36, 235 ; Rush. Mind. 282 ; 18 Ves. Ch. 12 ;
23 Eng. L. & Eq. 18; 17 Jur. 1045; i Ves. Sr. Ch. 19 ;
fc also 2 Aik. 167; i Bibb. 168, 406; 4 Hen. & M. 70.
j-3 HillfS. C.) 68; 4 Met. (Mass ) 545. k-Ray Ins. j)
743; Taylor Med. Jur 650; 21 Vt. 168. 1-2 Phill. 261,
*O2. Ill-i Wins. Ex. 35; 3 Madd. Ch. 191 ; 2 Hagg.
Eccl. 211 ; 6 Ga. 324. il-Tayl. Med Jur. 642; 3
Brown Ch. 441; Poth. Ob. (Evans 1 Ed.) App. 579;
of, of the persons who are the object of his
bounty, and the manner in which it is to be
distributed between them."
Monomania or partial insanity. This is a
mental or moral perversion, or both, in regard
to a particular subject or class of subjects, while
in regard to others the person seems to have no
such morbid affection.? It consists in the be-
lief of facts in regard to the particular subject
of the affection, which no sane person would
or could believe.' When it appears that the
will is the direct offspring of this morbid affec-
tion it should be held invalid, notwithstanding
the general soundness of the testator. 11
Persuasion. While the person is confine' 1
within those limits which leave the mind fret-,
persuasion may be used to induce another to
make his will, or even to make it in one's own
favor. But if such persuasion should so far
operate on the mind of the testator that he
would be deprived of a perfectly free will, it
would vitiate the instrument.*
THREATS. See IN TERRORUM, above.
TRANSLATION is the bestowing of a legacy
which has been given to one, on another; it is
a species of ademption, but it differs from it in
this, that there may be an ademption without a
translation, but there can be no translation
without an ademption.* See ADEMPTION,
above.
UNCERTAINTY. See CONTRACTS, CER
TAINTY, ante.
UNINTELLIGIBLE. When a contract, a law,
or a will is unintelligible, it has no force or
effect whatever. See CONTRACTS, title CON-
, STRUCTION.
WARNING. See IN TERRORUM, above.
"WHEN," in wills, standing by itself, is a
word of condition denoting the time at which
the gift is to commence. 11 The context of a will
may show that the word " when " is to be ap-
plied to the possession only, not to the vesting
of a legacy ; but to justify this construction there
must be circumstances, or other expressions in
the will showing such to have been the testa-
tor's intent.'
WORDS. It is a general rule that contracts
and wills shall be construed as the parties un-
derstood them ; every person, however, is pre-
sumed to understand the force of the words he
uses, and therefore technical words must be
taken according to their legal import even in
wills, unless the testator manifests a clear in-
tention to the contrary.*
Precatory words are expressions in a will
praying or requesting that a thing shall be
Wharton & Stille Med. Jur. 255 ; Rush Mind, 162, 163 ;
Ray Med. Jur. '6 279 ; Combe Ment. Der. 241 : 9 Ves.
Ch. 611; ii Id. 10 ; 13 Id. 87. 0-3 Wash. C. C. 585.
586; 4 Id. 262 ; i Green Ch. 82, 85 ; 2 Id. s$3, 6t'4 ; 26
Wend. 255, 306, 311, 312 ; 8 Conn. 265 , 9 Id. 105. p-
Tayl. Med. Jur. 626. ]-i Add. Eccl. ^79; 3 Id. 79. r-
6 Ga. 324; 7 Gill. 10 ; 8 Watts, 70 ; see also 6 Moore
Priv. Conn. 341, 349 ; 12 Jur. 947; Whart. & Stille Med.
Jur. 18. 8-3 S. & R. 269 : 5 Id. 207; ij Id. 323. I-
Bac. Abr. Legacies (C). 11-6 Ves'. Ch. 243 ; 2 Merriv.
Ch. 286. v-7 Ves. Ch. 422; 9 Id. 230 ; n Id. 489 ;
Coop. 145 ; 3 Brown Ch. 471. w-i Brown Ch. 33- 3
Id. 234 ; 5 Ves. Ch. 401 ; 8 Id. 306.
CONVEYANCES.
371
done. Although recommendatory words used
by a testator, of themselves, seem to leave the
devisee to act as he may deem proper, giving
him a discretion, as, when a testator gives an
estate to a devisee, and adds that he hopes,
recommends, has confidence, wish, or desire
that the devisee shall do certain things for the
benefit of another person, yet courts have con-
strued such precatory expressions as creating a
trust.* But this construction will not prevail
where either the objects to be benefited are
imperfectly described, or the amount of prop-
erty to which the trust should attach is not
sufficiently defined.'
ALABAMA.
CodlellM.
See text, above, and WRITTEN WILLS, ETC., below.
Unwritten or Nuncupative Wills
May be made during the last illness, of personal property
not exceeding in value the sum of five hundred dollars.
Written Wills and Testaments.
Every will must be in writing, unless the person mak-
ing the same is prevented by the extremity of his last
sickness, when personalty only can be willed.
Age and Mind. All persons of the age of twenty-
one years, and of sound mind, may devise lands and
any interest therein, by their last will.
All persons of the age of eighteen years may dispose
of all their personal property by their last will.
Revocation and repeal may be by burning, cancel-
ling, destroying, or obliterating by the testator himself
with intention to revoke, or by some one in his
presence, or by his direction, or by a new will or codicil,
or other writing, duly executed or proved.
Execution. No will (excepting nuncupative wills, of
not exceeding five hundred dollars' worth of personal
property, is effectual unless the same is in writing, signed
by the testator, or some person in his presence, and by
his direction, and attested by at least two witnesses, who
must subscribe their names thereto, in the presence of
the testator.
Probate or proof. See text, above.
Repeal. See ALTERATION, ETC., above.
Signature. See EXECUTION, above.
Witnesses. See EXECUTION, above.
See GENERAL FORMS, below.
ARKANSAS.
Codicils.
See text, above, and WRITTEN WILLS, ETC., below.
Unwritten or Nuncupative Wills.
Unwritten or nuncupative wills may be made during
the last illness, and may bequeath estate not exceeding
in value five hundred dollars.
Proof must be by two witnesses.
Written Wills and Testaments.
Age and mind. All persons of the age of twenty-
one years, and of sound mind, may devise lands and any
interest therein, by their last will.
All persons of the age of eighteen years may dispose
of all their personal property by their 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. Every will must be in writing, etc.
No will (excepting nuncupative wills, of not exceeding
five hundred dollars' worth of property) is effectual un-
less the same is in writing, signed by the testator, or
some person in his presence, and by his direction, and
Attested by at least two witnesses, who must subscribe
their names thereto, in the presence of the testator.
No informally signed and attested will can be pleaded
in bar of one subscribed in due form.
Probate or proof. See text, above.
Repeal. See ALTERATION, ETC., above.
Signature. It must be subscribed by the testator at
the end of the will, or by some person for him at his re-
x-8 Ves. Ch. 380 ; 18 Id. 41 ; Bac. Abr. Legacies (B).
y-i Brown Ch. 142 ; i Sim. Ch. 542, 546.
quest. Such subscription must be made by the testator
in the presence of each attesting witness, or acknowl-
edged by the testator to each of the attesting witnesses
to nave been made and subscribed as aforesaid. At the
time of such subscription and acknowledgment the tes-
tator must declare the instrument so subscribed to be his
last will and testament. See WITNESSES, below.
Witnesses. There must be at least two attesting
witnesses, each of whom must sign his name as a wit-
ness at the end of the will, at the request of the testator.
Where the entire body and signature of the will is in
the handwriting of the testator, it may be established by
the unimpeachable evidence of at least three disinter-
ested witnesses to the handwriting and signature of tli*
testator, without subscribing witnesses.
See GENERAL FOKMS, below.
CALIFORNIA.
Codicils.
See text, above, and WRITTEN WILLS, ETC., below.
Unwritten or Nuncupative Wills.
No nuncupative will shall be good where the estate
bequeathed exceeds the value of one thousand dollars ;
nor unless the same be proved by two witnesses who
were present at the maKing thereof, nor unless it be
proved that the testator at the time of pronouncing the
same did bid some one present to bear witness that such
was his will, or to that effect; nor unless it was made at
the time when the decedent was in actual military ser-
vice in the field, or doing duty on shipboard at sea, and
in either case in actual contemplation, fear, or peril of
death, or the decedent must have been at the time in
expectation of immediate death from an injury received
the same day.
A nuncupative will must be reduced to writing within
thirty days, and proved within six months after the same
was uttered.
Written Wills and Testaments.
Age and mind. Every person of sound mind, and
over eighteen years of age, may dispose of all his or her
estate, real or personal.
Alteration and repeal, as in Alabama.
Execution. No will (except such nuncupative will
as is above mentioned) is valid, unless it is in writing,
duly signed and attested, or proved Must be executed
at least thirty days before the death of the testator lor
charitable purposes. Charitable bequests cannot
exceed one-third of the estate of one leaving legal
heirs
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 express direction. See WIT-
NESSES, below.
Witnesses. It must be attested by two or more wit-
nesses, subscribing their names to the will, in the pres-
ence of the testator, and in the presence of each other.
See GENERAL FORMS, below.
CANAI>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 v<jid).
Whereas since the making of my said will, my
CONVEYANCES.
eldest son, S., is dead, having left issue a third
son, named O. , now living, and the within-named
N. is also dead; Now I hereby give and devise
all, etc., unto my said grandson, G. S., etc.
Codicil to Will General Form.
Revocation.
Whereas I, A. B., of , have made my last
will and testament in writing, bearing dat, etc.,
and have thereby made, ordained, constituted
and appointed, my brother-in-law, B. L., and my
cousin, C. N., executors of my said will:
Now I do by this my writing (which I declare to
be a codicil to my said will, and direct to be taken as
part thereof) will and direct that my said brother-
in-law, B. LM shall not be an executor of my said
will, and do hereby revoke my appointment of
him as such ; but that in his room and stead my
cousin, D.M., of , shall be one of the execu-
tors of my said will, jointly and together with
my said cousin, C. N.
And I do hereby accordingly make, ordain,
constitute, and appoint them, the said D.M. and
C. N., joint and sole executors of my said will,
as fully and effectually, to all intents and pur-
poses, and in all respects, as if they only and no
other person or persons had been by me origin-
ally, in and by my said will, constituted and ap-
pointed executors thereof, etc.
In witness whereof, I, the said A. B., have this
day of hereunto set my hand (and seal)
unto this, which I declare to be a codicil, and de-
sire the same added to my last will and testa-
ment aforesaid.
Signed, etc.
Codicil to Will General Form.
Ratification, etc.
This is a codicil to be added to the last will and
testament of me, A. B., of , which will bears
date on or about, etc.
First, I do hereby ratify and confirm my said
will in all respects, save so far as any part there-
of shall be revoked or altered by this present
codicil, and in particular, save so far as the same
relates to the disposition thereby made of my
residuary personal estate, in favor of my eldest
on, S. , as to which particular I do hereby re-
voke and alter my said will ;
And all the rest and residue of my personal
estate and effects, by my said will given and be-
queathed unto my said son, S., I do hereby give
and bequeath unto, etc.
And I give and bequeath unto my brother, B.
B., the sum of, etc., etc.
And I do hereby revoke all former and other
codicils by me at any time heretofore made.
In witness whereof, to this present writing,
which I hereby declare to be a codicil to my last
will and testament, and which I direct to be
added thereto, and to be taken as part thereof, I
have set my hand and seal this day of ,
in the year .
Signed, sealed, published, and declared by the
said A. B., as and for a codicil to his last will and
testament, and to be taken as part thereof, in the
presence of three several persons, whose names
are hereunder subscribed as witnesses to the
signing, sealing, and publishing the same, which
said three persons did so hereunder subscribe
their names at the request and in the presence
of the said A. B. , and in the presence of each
other. W. I.
T. N.
E. S.
UNWRITTEN, VERBAL, OR NUNCU-
PATIVE WILLS.
Unwritten or Verbal Will Memoran-
dum Made and Signed by Witnesses.
i. The will of A. B., of , made and declared
by him on , in the presence of us, who have
hereunto subscribed our names as witnesses
hereto, " My will is," etc. (reciting the very words).
Another.
A. B. , his will by word of mouth, made and de-
clared by him, on the day of , in the pres-
ence of us, who have hereunto subscribed our
names as witnesses hereto : My will is that, etc.
Another.
Memorandum: That on the day of , A.
D. , A. B., of, etc., being sick, of the sickness
whereof he died on the same day (or on or about
the day of following, as the case may be), at
his dwelling-house in, etc. (or at , where he had
been for his health and was taken suddenly ill), did
make and declare his last will and testament,
nuncupative, in these or the like words following,
that is to say : " I give," etc.
These words, or to the like effect, the said A. B.
declared in the presence of the subscribers, with
intention that the same should be his last will
and testament, whereof he desired them, or
some of them, to bear witness.
Another.
Nuncupative will of A. B., deceased :
On the day of , A. D. , A. B., being
in the extremity in his last sickness, in his habi-
tation or dwelling, situated in street, in ,
where he had resided for more than ten days next
before the making of his will (or at the residence or
dwelling of A. B., situated in street, No. , in
, where said A. B. was surprised by sickness, being
from his own house in , and died before returning
thereto ; or on board the ship , said A. B. being a
mariner at sea ; or at , said A. B. being a soldier in
actual military service), in the presence of the sub-
scribers, did declare his last will and testament
in the following words, or to that effect, viz. :
" He mentioned that he had about hundred
dollars in the Savings Fund, and hun-
dred dollars in the hands of E. F."
He then said that " I want E. F. to act as trustee
and executor and put it out at interest for the sole
use of my mother during her life, and, after her
death, to go to her children. My household goods
and other property I wish to be left in my mother's
possession for her sole use."
At the time the said A. B. pronounced the fore-
going will he was of sound and disposing mind,
memory, and understanding, and did bid us, who
were present, to bear witness that such was his
will.
Reduced to writing, this day of , A. D.
. W. T.
N. S.
Unwritten or Verbal Will Affidavit
of Witnesses.
State , county of , ss.
Personally appeared before me, the undersigned,
W. T. and N. S., who, being duly sworn (or af-
firmed), according to law, did depose and say, that
they were present, on the day of , at the
habitation or dwelling of A. B. (situated in
street, in , or otherivise, as the case may be), in the
time of his last illness, and did then and there
hear the said A. B. utter what is contained in the
above writing ; that he did bid them bear wit-
ness that it was his last will ; and that at the time
of so doing he was of sound mind, memory, and
understanding, to the best of their knowledge
and belief.
( The paragraph following should be omitted in the
case of a mariner or. soldier or person dying from,
home ) :
Also, that he had resided for more than ten
days, next before the making of his will, at the
above residence. W. T.
N. S.
Sworn (or affirmed) and subscribed before me,
this day of .
(Probate officer's signature and titlt.)
Convict. See CRIMINAL LAW.
Conviction. See OIMINAL LAW.
Convoy. See MARITIME LAW.
Co-Oblisor. See CONTRACTS.
Cool Blood. See CRIMINAL LAW.
Cooling 1 Time. See CRIMINAL LAW.
Coparcenary. See ESTATES.
Coparceners. See DESCENT.
Copartner. See PARTNERSHIP.
Copartnership. See PARTNERSHIP.
Copy. See EVIDENCE.
Copyhold. See ESTATES.
Copyholder. See ESTATES.
COPYRIGHT.
397
COPYRIGHT. See ASSIGNMENTS; CONTRACTS,
BTC.
COPYRIGHT is the sole liberty of printing,
reprinting, publishing, completing, copying, ex-
ecuting, finishing, and vending any original
book, map, chart, dramatic or musical compo-
sition, engraving, cut, print, photograph or
negative thereof, or of a painting, drawing,
chromo, statue, statuary, and of models or de-
signs intended to be perfected as works of the
fine arts, upon complying with the provisions
of the law of copyright ; and in case of a dra-
matic composition of publicly performing or
representing it, or causing it to be performed or
represented by others. Also, the right to drama-
tize or translate one's own work.'
Copyright is not of a simple, but a complex
nature, involving two conditions : one of pub-
lication, the other of exclusion.*
Statutes of copyright do not grant monopo-
lies ; they are only protective legislation against
trespass on the rights of authors. Not that
writers are a more important body than many
others, but because it gives the State more
trouble to keep thieves off their productions
than of those of other skilled laborers, and also
because it needs superior intelligence to see
that ideas and woven words can be made prop-
erty, and that they must be, or else their authors
outlawed, degraded, and starved, and the com-
munity surfer in the end.
In order to acquire a valid copyright in a
work it is necessary that it should be original.
If any part of the composition is copied or
adopted by the writer from a prior existing
work, of course the title fails with respect to
this, as the writer cannot be the author of what
he has adopted from another." 1 The law does
not require that the subject of a book should
be new, but that the method of treating should
have some degree of originality. 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. 6
The law rests upon no code of comparative crit-
icism. It protects alike the humblest efforts at
instruction or amusement, the dull productions
of plodding mediocrity, and the most original
and imposing displays of intellectual power. 1
It will secure to every person the property
in every genuine product of their own mental
labor, whether that product take the form of
compilation, abridgment, new arrangement, or
a wholly original work, if indeed there can be
ny such thing as a wholly original work.
The law will be liberally construed in favor
iof authors; and, leaving their comparative mer-
its to be settled by critics at the tribunal of pub-
lic opinion, it will protect and encourage their
labors ; the fruits of their literary toil are secured
to them by the highest title, in order that they
-Laws U. S. 1870, July 8, Vol. 16, p. 213, Ch. 330, 2
85; R.S. 1873-4, Title LX.,Ch. 3, p. 965, 4948; 14 M-
& W. 318. b-3 DeG. & Sm. 674. c-i Morgan, 19. d-
Copinger on Copyright, ao. e-i East. 358, 361 ; 3
Swanst. 673 ; J W. Bl. 321, 331 ; 5 Ves. 24 ; 8 Id. 223, n.
215; 16 la. 269; 2 Beav. 6; 7 C. B. 4; 4 Bingh. 234: 2
Sim. & Stu. i ; 3 K. & J. 708 ; 3 Story, 768; 2 Blatchf.
may keep open the springs of thought and
feed the intellectual life of the nation.*
ABRIDGMENTS. Writers of abridgments
have in general been favorably regarded by
both the courts of law and equity . h "Abridg-
ments may with great propriety be called a new
book, because not only the paper and print, but
the invention, learning, and judgment of the
author is shown in them, and in many cases are
extremely useful, though in some instances
prejudicial, by mistaking and curtailing the
sense of the author." A fair abridgment is
always entitled to protection. 1 To constitute a
true and proper abridgment of a work the
whole must be preserved in its sense, and then
the act of abridgment is an act of the under-
standing, employed in copying a large work
into a smaller compass, and rendering it less
expensive and more convenient, both to the time
and use of the reader, which make an abridg-
ment in the nature, of a new and meritorious
work. An abridgment, when the understard-
ing is employed in retrenching unnecessary and
uninteresting circumstances, which rather
deaden the narration, is not an act of plagiarism
upon the original work, nor against any prop-
erty of the author in it, but an allowable and
meritorious work.J
A mere selection or different arrangement of
parts of the original work, so as to bring it into
smaller compass, will not be held a bona Jide
abridgment. There must be a real, substantial
condensation of the materials, and intellectual
labor and judgment bestowed thereon, and not
merely the facile use of the scissors, or extracts
of the essential parts constituting the chief value
of the original work. k The abridgment must
not only contain the arrangement of the book
abridged : the ideas must also be taken from its
pages. It must be in good faith an abridgment,
not a treatise interlarded with citations. To
copy certain passages from a book, omitting
others, is in no sense a just abridgment; the
judgment is not exercised in condensing the
views of the author not condensed. 1 Between
a compilation and an abridgment there is a
clear distinction : a compilation consists of
selected extracts from different authors; an
abridgment is a condensation of the views of
the author. The former cannot be extended so
as to convey the same knowledge as the origi-
nal work; the latter contains an epitome of
the work abridged, and consequently con-
veys substantially the same knowledge. The
former cannot adopt the arrangement of th
works cited ; the latter must adopt the arrange-
ment of the work abridged. The former in-
fringes the copyright if the matter transcribed
when published shall impair the value of the
original work ; a fair abridgment, though it
may injure the original, is lawful. 10
46; 5 McLean, 32. As to musical compositions ste I
LawR. (6,8), 411; i Y. &Co). 288. f-s Blatchf. 87. if.
See Id. h-But see u W. 877; i H. & M. 747 ; 4 Me-
Lean, 308, 309; Curtis Copyright, 272. 273. i-a Atk.
143. J-Lofft. 775. li-a Story, 107. 1-4 McLean, MX.
in- Id. 314 ; see 2 Story, 100; 8 Jur. 183; 4 Eip. 169;
17 Ves. 426.
COPYRIGHT.
ACCESSIONS are those productions and com-
positions of a kind for which in the course of
a literary production an author employs others
to assist him. In such cases the product of
their individual labor belongs to him who is
the author and proprietor of the whole." To
constitute a bona fide accession an author must
>iy 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 (<?r retail) bookseller's price deducting
therefrom a commission of , they taking the
risk of the credit they shall give on the same.
That in case all the copies of any edition of said
work shall not be sold within years after the
time of their publication, the said D. & F. shall
be at full liberty to dispose of the remaining
copies so unsold, either by public auction or pri-
vate contract, or in such manner as they may
deem most advisable, so that the account may be
finally settled and closed.?
In witness, etc.
COPY DEFINITION OF, ETC. A copy (of an
engraving, cut, print, photograph, painting,
drawing, chromo, etc., etc.) is that which comes
so near to the original as to give every person
seeing it the idea created by the original.*
Trifling variations are not material, 11 whether
reduced to the size of an engraving, or still
more diminished in a photograph, 8 or enlarged
to a painted dioramic copy.' It is for the jury
to consider whether the main design of the
plaintiff's engraving had been copied, and
whether the defendant's engraving was sub-
stantially a copy of the plaintiff's.
COPYISTS. The mere copyist, or the slavish
imitator, who produces old materials substan-
tially in their own forms, without new combina-
tion, is entitled to noprotection underthestatute. u
CRIMINAL PUBLICATIONS. " No author or
printer who fairly and conscientiously promul-
gates opinions, with whose truth he is im-
pressed, for the benefit of others, is answerable
as a criminal. A malicious and mischievous
1'itention is, in such a case, the broad boundary
lietvveen right and wrong: it is to be collected
from the offensive levity, scurrilous and oppro-
brious language, and other circumstances,
\\ hether the act of the party was malicious."*
DliLAY. If any delay occurs in the assertion
"f the title to copyright infringed, the delay
must be accounted for to the satisfaction of the
court; otherwise, no assistance will be given. w
p-See 6 D. M. & G 22-! q 5 B. & Aid. 743 r-i4
C. B (N. S )3i7; gM StVf. 6gi. -i 4 C. B. (N. S.)
742, 743. 1-6 Sim. 207. r-5 Blatchf. 87 v-n S & R.
394. w-See i R. ;^ "!. -<i : Taml. 295; 2 Russ. 385,
493; 3 Beav. i^, -i U 6; 5 DeG. & S. 80, 84; n
DICTIONARIES. In dictionaries there may
be a certain degree of skill exhibited as to or-
der and arrangement, or ingenuity exhibited in
the selection of phrases and illustrations, which
are the best exponents of the sense in which a
word is to be used ; there may also be great la-
bor in the logical deduction and arrangement
of the word in its different senses, when the sense
of the word departed from its primary signifi-
cation. On the other hand there is a large
mass of words that admit of only one accepta-
tion, and can be translated only one way, and
the large mass of dictionaries are composed of
words of that description ; hence the new dic-
tionary must, of necessity, contain much of the
information and the results obtained from its
predecessors. 1 Where words are of such a
nature that the information contained in them
must of necessity, if it be correct, be exactly
the same in both, the test frequently applied by
the courts to determine whether the second is a
mere unlaborious production of the first, or has
been compiled by original effort from common
sources, is this : to examine the inaccuracies
which appear in both works, and see whether
they are identical ; if so, the inference of piracy
is almost invariably drawn.?
See CALENDARS, COURT GUIDES, ETC., ETC.
above; DIRECTORIES, below.
DIGESTS, ETC. The digest of a report usually
included in and known as the head note is a
species of property that will receive protection.
The head note, or the side or marginal note of
a report is a thing upon which much skill and
exercise of thought is required : it may be con-
sidered in itself a species of brief and condensed
report an abstract of the decision conveying
the principle upon which it is founded, and the
pith and substance of the case. 1
The right of selecting passages from books
of reports (including entire judgments) in trsa-
tises upon particular subjects is not disputed.
Had it been, the greater part of our law libra-
ries would be much thinned, and we deprived
of many valuable works, as a great portion
consists of mere transcripts from books of re-
ports." See COMPILATION, ETC., above.
Digests of legal decisions ace somewhat of
the nature of abridgments. They give, under
headings arranged alphabetically, a summary
of the legal points decided in each case referred
to, and if such arrangement and summary are
the product of skill and mental labor on the
part of the compiler, and the compiler is guilty
of no infringement of the copyright in the pub-
lished reports, he is entitled to a copyright ; but
if the compiler's labor is purely mechanical, and
he only arranges in alphabetical order the mar-
ginal or head notes of cases contained in pub-
lished reports, he is guilty of infringing the
copyright in such reports. 6
Wood, 877: 32 L. J 539, Ch., and analogous patent
cases ; 12 Beav. 3 ; 4 L J 26 Ch ; i Kay, 416, 417 L
R 18, Eq 444- X-Per Vice-Chancellor Wood,6W R.
352. y-i6 Ves. 271, 27? : 6 W R 352; LnwR.oEq
324 z-i6 C. B 49' : i Jur. (N. S.) 443 ; j Y. & C. 301.
a-5 Ves. 709. l-i6 C. B. 484.
4<H
COPYRIGHT.
"A digest, undoubtedly, may be made from
the published reports without necessarily sub-
jecting the compiler to the charge of piracy ;
for instance, where the party applies the exer-
tion and skill of his own brain in extracting
the principal or the substance of the decisions
before him, dressing it up in his own language,
so as to produce an original work, not a mere
stringing together of marginal or side notes
which the labor and intelligence of the authors
have fashioned ready to the compiler's hand."
DIRECTORIES, GUIDE BOOKS, MAPS, ETC.
In the case of a directory, dictionary, guide-
book, map, or the like, where there are certain
common objects of information, which must, if
described correctly, be described in the same
words, a subsequent compiler is bound to set
about doing for himself that which the first
compiler has done. The compiler may not cut
out slips from the former work and go and see
whether they are accurate, and if so, copy them
verbatim into his own work, but he is quite
justified in referring to the former book in
order to guide himself to persons on whom it
would be worth while to call. d
DIVISIBILITY, ETC., OF COPYRIGHT. Copy-
right is not divisible,* though the term' may
be divided."
ENGRAVINGS, ETC. Where the subject from
which the engraving is taken is common and
open to all, the first engraver of a print of it is
not entitled to restrain any one else from mak-
ing an engraving of the same subject, provided
it be made from the original subject and is not
a copy of the first engraving ; but he can pre-
vent another from copying his own engraving. h
EXECUTION. Copyright in a published print
is not the subject of seizure or sale by execu-
tion, although it may be reached by creditors'
bill, and applied to the payment of the debts
of the author. 1 But in case of such a remedy
it would be necessary for the court to enforce
a transfer to the purchaser in conformity with
the requirements of the copyright act in order
to invest such purchaser with a complete title
to the property J
Whether this right extends to the publishing
an unpublished work of an author, or other-
wise making the same available, is very doubt-
ful."
A manuscript 1 in the author's hands, or a
book half-printed, or in the process of publica-
tion, 1 " cannot be taken in assignment or exe-
cution.
See ASSIGNMENT, above.
GRATUITOUS DISTRIBUTION. A multiplica-
tion of copies for the purpose of gratuitous
distribution is as much an infringement of the
proprietor's copyright as if the multiplication
had been made for the purpose of pecuniary
profit."
C-5 Ves. 709. d-Law Rep. 5 Ch. App. 279 ; tt L. T.
(N. S.) 78 . see t Am. L Reg. 229 ; Law R. 7 Eq. 34 ;
19 L. T. (N S.) 550 e-4 Ho L. Cas. 815. f-6 C. B.
458. |f-3 Bliss. 208. ll-4 Bingh. 246; 3 Ves & B. 78
i-i4 How. U. S. 528. J-i7 How. U. S. 447- k-See 4
Burr. 2311; Ambl. 695; 10 Mod. 518. l-Bell Comm.
38; 4 Burr. 3311, 3396, 2397; Godsoo Pat. & Cop. (a
IGNORANCE. Copyright is like patent in this
respect, that if it is infringed ignorance will not
avail as a defence in the one case any more
than in the other.
IMMORAL OR LIBELLOUS WORKS. The
law will not assist one in the recovery of ic-
muneration for his labor on such works.'
IMPORTATION. Copyright may be infringed
by the importation for sale or hire of copies
printed abroad.
INFRINGEMENTS OF COPYRIGHT.
Copyright may be invaded ;i
1. By reprinting the whole work verbatim.
2. By reprinting a part of a work verbatim.
3. By imitating the whole or a part, or bjr
reproducing the whole or a part with colorable
alterations.
4. By reproducing the whole or a part under
an abridged form.
5. By reproducing the whole or a part under
the form of a translation.
COPYING, ENGRAVING, ETCHING, IMPORT-
ING, PRINTING, PUBLISHING, SELLING, VARY-
ING, WORKING, ETC., OK COPYRIGHT MATTER,
WITHOUT CONSENT OF PROPRIETOR IN WRIT-
ING SIGNED IN PRESENCE OF TWO OR MORE
WITNESSES.
Sec. 4965. If any person, after the re-
cording of the title of any map, chart,
musical composition, print, cut, engrav-
ing, photograph, or chromo, or of the de-
scription of any painting, drawing, statue,
statuary, or model or design intended to
be perfected and executed as a work of
the fine arts, as provided by this chapter,
shall, within the term limited, and without
the consent of the proprietor of the copy-
right first obtained in writing, signed in
presence of two or more witnesses, en-
grave, 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 imported, shall sell or expose
to sale any copy of such map or other
article, as aforesaid, he shall forfeit to the
proprietor all the plates upon which the
same shall be copied, and every sheet
thereof, either copied or printed, and shall
further forfeit one dollar for every sheet of
the same found in his possession, either
printing, printed, copied, published, imported,
or exposed for sale ; and in case of a paint-
ing, statue, or statuary, he shall forfeit
ten dollars for every copy of the same in
his possession, or by him sold or exposed for
sale ; one-half thereof to the proprietor and the
other half to the use of the United States.'
The forfeiture or penalty provided for by this
section may be enforced by action under this
section in the circuit or district court under the
Ed.) 430: Curtis Copyright, 85, 218. m-Maughara
Literary Property, 177, n. 4. n-tt C. B. 177: 9 Sc.
Sess. Cas.(2dSer.)748. O-1J.&H.527. p-Ry. &M.
337. q-Shortl. 95 ; Curtis, Ch. 9. - r-Laws U. S. 1870,
July 8, Vol. 16, Ch 230, J 100, p. 214. Rev. 1873-74;
citing i Story, 19; 3 Id, 115; IJlatchf. 39; Id., 85; i
McLean, 306,
COPYRIGHT.
405
rules of practice of the State wherein the for-
feiture or penalty is sought to be enforced.
The penalty for an infringement of copyright
in engravings, maps, charts, and other -subjects
set forth in this section, is only recoverable
within two years. But every distinct act of
printing for sale is a new infraction for the pur-
pose of the limitation.
IMPORTING, PRINTING. PUBLISHING, SKLL-
TNG, ETC., OF COPYRIGHT MATTER, WITHOUT
i HE CONSENT OK PROPRIETOR, IN WRITIVG
SIGNED IN PRESENCE OK TWO OR MORE Wi v-
N ESSES.
Sec. 4964. Every person who, after th*
recording of the title of any book as pre^
vided by this chapter, shall wiihin the te-m
limiled, and without the consent of the
proprietor of the copyright first obtained
in writing, signed in presence 01 two or
more witnesses, print, publish, or import,
or, knowing the same to be so p-inted, pub-
lished, or imported, shall seU or expose to
sale any copy of such book, shall forfeit
every copy thereof to such proprietor, and
shall also forfeit and pay such damages
as may be recovered in a civil action by
such proprietor in any court of competent
jurisdiction.*
"Any copy of such book " under this section
may be understo<xl to mean a transcript or copy
of the entire book, and no less, and courts
will only adjudge such penalty for the copies
found in the possession of the defendant. v
Where any wrong has been committed in re-
spect to a literary work, and the complainant
does not ask for an injunction to protect his
common law rights, or the violation of his copy-
right, but only prays for an accounting, the re-
dress must be sought at law for damages, and
not in equity. The asking of an injunction is
what constitutes the process equitable.*
PUBLICLY PERFORMING OR REPRESENTING
DRAMATIC COMPOSITION, ETC., WITHOUT CON-
SENT OF PROPRIETOR.
Sec. 4966. Any person publicly per-
forming or representing any dramatic
composition for which a copyright has
been obtained, without the consent of the
proprietor thereof, or his heirs or assigns,
shall be liable for damages therefor;
such damages in all cases to be assessed at such
sum, not less than one hundred dollars for the
first, and fifty dollars for every subsequent per-
formance, as to the court shall appear to be
just. 1
A previous acting or representing a play will
not deprive the author of the right afterward to
take out a copyright.^
An action may be maintained by the author,
although he or his assignee has only filed his
S-i'See J 104-4968, post ); 8 Law Rep. 412; i W. L
Jour 240. t-Id f. 99, Rev. 1873; 4 Id $ 4964; citing
i Story, 19 ; a Id 115 , 2 Blatchf. 39 ; Id. 85 ; 4 McLean,
306; 2 Woodb. & Min. 497. 11-12 Monthly L. Rep.
340. T-7 How. 811 : i N. Y. Leg. Obs. 198. w-3 Edw.
Ch. iio-ni. X-Id. ? 101, Rev. 1873; 4 Id. \ 4966;
citing 5 Blatchf. 87; 6 Id. 256. y-i3 Monthly L. Rep.
IN. S.) 401. c-Id. a-Id. b-9 Am. L. &ef. 421;
title-page, and has not published the work or
play.
An assignee of an exclusive right of per-
forming a dramatic comjK)sition within certain
limits may maintain an action for injunction
to restrain its representation and performance
within such limits,' if he has complied with all
the acts required by law to secure a copyright . b
PRINTING OR PUBLISHING MANUSCRIPT
WITHOUT AUTHOR'S OR PROPRIETOR'S CON
SENT.
Sec. 4967. Every person who shall
print or publish any manuscript whatever,
without the consent of the author or pro-
prietor first obtained (if such author or pro-
prietor is a citizen of the United States, or
resident therein), shall be liable to the author
or proprietor for all damages occasioned, by
such injury.
An author has a common law right in his
manuscript until he relinquishes it by contract
or some other equivocal act. d And a surrep-
titious publication of an important part of a
manuscript is as much within the statute as if
the manuscript were complete. Indeed the
whole of a manuscript need not be printed. 6
INTENTION TO PIRATE. The existence of
an animus furandi (intention to steal) is
deemed essential to piracy. f This animus fu-
randi must not be understood to mean a de-
liberate design to steal the product of another's
labor and surreptitiously appropriate it to one's
own use and credit; the offence of piracy may
be committed bona fide, with no dishonest in-
tention, and without any idea on the part of
him who commits it that he is infringing a
copyright. " It is enough that the publication
complained of is in substance a copy whereby
the work vested in another is prejudiced.* In
a book of avowed extracts from the poetical
writings of others," if A. takes the property of
B. the animus furandi is inferred from the
act."
The cases in which the animus furandi test
properly applies is that difficult class relating
to dictionaries, road books, and the like, where
a certain amount of common material is used by
different persons, and the matter at issue is
" piracy or no piracy." 1
INTESTACY. Where the owner of copyright
in any published or unpublished production
dies intestate, the copyright in such production
devolves by operation of law upon his executor
or administrator, who, as such, possesses all the
rights that the original owner enjoyed.^
JOINT OWNERS OF A COPYRIGHT may make
a contract between themselves as to the print-
ing and publishing of a work, and neither will
be permitted to set up against the other his
contra 13 Monthly L. Rep. (N. S.) 401. e-Id. ? 103 ;
Rev. 1873-74; citing 8 Pet. 657; 4 McLean, 300; 23
How. Pr. 207. d-s McLean, 36, 38 ; 8 Pet. 957 ; i N.
Y. Leg. Obs. 409 ; 18 How. 170; 32 How. Pr. 198. e-
5 McLean, 39-4 : s ee 9 Am - L - R e g- 45- f-4 Esp-
169 ; but see i J. & H. 527. ff-i Campb. 98. h-n
Sim. 38; see I W. L. Jour. 240; i Giff. 98; similaj
cases, 16 L. T. (N. S.) 51 ; L- Rep. 3 Eq. 718. i-J. *
H, 527. J-Shortl. 149.
4 o6
COPYRIGHT.
original rights as a joint owner in violation of
such contract. 1
LEGAL FORMS. A person is entitled to copy-
right in practical forms and styles of writs and
instruments introduced by acts of the general
assembly or legislature, those acts giving only
general descriptions of the forms to be used.
" It is said that owing to the particular nature
of the styles they cannot be the subject of copy-
right, because they are drawn up precisely after
the form prescribed in the statute, and because
any styles relating to the same subjects as those
given by the complainer must, if the directions
of the statutes and phraseology of conveyancers
were used, be expressed in the same manner
exactly as those proposed by the complainer.
Now it may be quite true, that if the statute
had supplied certain forms by which the opera-
tions intended to be thereby regulated were to
be done, if the statute had contained, as stat-
utes sometimes do, an appendix exhibiting cer-
tain schedules of forms which it was only ne-
cessary for any one to copy in order to avail
himself of the provisions of the act, then I hold
that the reprinting of such forms in a separate
publication would not give him a copyright in
those forms; but in the case here it is different,
for the statute only gives very general directions
and descriptions of the styles that are to be
used. The schedules are very general in their
terms, and it is no doubt of great practical im-
portance to suit these general directions to each
case falling under the statute as it may arise.
The preparing and adjusting of such writings
require much care and exertion of mind. As
to invention, that is a different thing : it does
not require the exercise of original or creative
genius, but it requires industry and knowl-
edge.'"
LETTERS PRIVATE. The copyright of pri-
vate letters forming literary compositions is in
the composer and not in the receiver, who has
only a special property in them. " Possibly the
property of the paper may belong to him, but
this does not give a license to any person what-
ever to publish them to the world, for at most
the receiver has but a joint property with the
writer." b
Letters and communications sent expressly or
impliedly for publication to editors or proprie-
tors of legal publications become the property
of such editor or proprietors, and cannot law-
fully be published by any other person obtain-
ing possession of them.
LIBRARIAN OF CONGRESS.
See ASSIGNMENT, above; REQUISITES, ETC.,
>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 <j/" the article), the title or description
of which is in the following words, to wit: (here
insert title or description), the right whereof ho
claims as author (originator, or proprietor, as ike
case may be), in conformity with the laws of the
United States respecting copyrights.
L. C., Librarian of Congrus.
3. Notice of Copyright.
Sec. 4962. No person shall maintain an
action for the infringement of his copy-
right unless he shall give notice thereof
by inserting in the several copies o' evory
edition published on the title-page or the
page immediately following, if it be a book;
or if a map, chart, musical composition, print,
cut, engraving, photograph, painting, drawing,
chromo, statue, statuary, or model or design in-
tended to be perfected and completed as a
work of the fine arts, by inscribing upon
some visible portion thereof, or of the sub-
stance on which the same shall be mounted,
4758. p-Id. Jgx; Rev. 1873-4; Id. {91. q-i BlatchC
620.
COPYRIGHT.
the following words, viz. : " Entered ac-
cording to act of Congress, in the year
, by A. B., in the office of the
Librarian of Congress, at Washington ; "
or, at his option the word "Copyright," to-
gether with the year the copyright was entered,
and the name of the party by whom it was taken
out, thus: " Copyright, 18 , by A. B."
Where a work consists of a number of vol-
umes, the insertion of the notice on the page
next following the title-page of the first volume
of the work is a sufficient compliance with the
statute.* The author may insert the same no-
tice in another edition without impairing the
copyright.
The record or notice must be accurate in
point of date, for an error in this would be a
fatal defect in the author's or proprietor's copy-
right^
Sec. 4963. Every person who shall in-
sert or impress such notice, or words of
the same purport, in or upon any book, map,
chart, musical composition, print, cut, engrav-
ing, or photograph, or other article, for which
he has not obtained a copyright, shall be
liable to a penalty of one hundred dollars,
recoverable one-half for the person who shall
sue for such penalty, and one-half to the use
of the United States.*
SALE OF COPYRIGHT. Where an author
sells the copyright of a work published under
his own name, and covenants with the pur-
chaser not to publish any other work to preju-
dice the sale of it, another publisher (who has
no notice of this covenant) may be restrained
from publishing a work subsequently purchased
by him from the same author, and published
under his name on the same subject, but
under a different title, and though there be no
piracy of the first book. 1
Where no such covenant has been entered
into, and the publisher has agreed with the
author for an edition of history or the like, and
the work is completed, a continuation of such
work by the author, independently or with
another publisher, is no violation of the pre-
vious contract.'
If an author sells his copyright in a work
for a limited term, the publisher may, except
in case of actual fraud, continue, after the
expiration of the term, to sell copies of the
work printed during its continuance.*
A contract for the sale of a copyright is en-
forceable in equity.'
See TRANSFER OF COPYRIGHT, below.
SALE OF EDITION, ETC. Where an author
has sold an edition of a given number of copies
to one publisher, he is not at liberty before they
are sold to publish the same work himself or
through another publisher in such a manner as
-Lws 1874, June 18, Vol. 18, Ch. 301, \ i, p. 78; 5
Blaichf. 362. t-i N. Y. Leg. Ohs. 198. u-ld. 199. V-
Biaichf 82. w-Laws 1870, July 8. Vol. 16, Ch. 230,
go8,p. 214; Rev. 1873-4, Title LX.,Ch. 3. ? 4963, citing
i Watchf. 154, x-2 Sim & Stu. i ; i L. T. (Ch. ) 90 ; 10
BfcM. 133. y-See 2 Sess. Cas. 719 ; (N. E.) 671. z-
M> 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<ib. & M. 42. f-2 W. & it. 46. g-ld. 23. h-
l<\. 44. i-i Blatchf. 627, xi. J-L. Rep. 2 Ch. App
.507 ; 16 L. T. (N. S.) > 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
<l-3 N. Y. 479. 0-2 Kent Comm. 275 . Ang. & A.
Corp. 9, 20 ; i Baldw. C. C. 222. f-Glover Manic. Corp.
i- ff-4 Wheat. 668; 9 Id. 007. li-See MUNICIPAL COR-
PORATIONS, above, i-4 Wheat. 424. J-Const U. S.
Art. 1,5 10 ; 4 Wheat. 518. Under this clause of the
constitution it has been settled that the charter of a pri-
raNe corporation, whether civil or eleemosynary, is an
executed contract, between the government and the cor-
part of the corporation, by death or otherwise,
if the charter or act of incorporation provide
no mode by which such loss may be supplied ;
by the surrender of its corporate franchise to,
and the acceptance of the surrender by the sov-
ereign authority ; and, lastly, by the forfeiture
of its charter by the neglect of the duties im-
posed, or abuse of the privileges conferred by
it ; and forfeiture being enforced by proper legal
process.
Although the charter of a public corporation
may be altered or repealed at pleasure, the
charter of a private corporation, whether granted/
by the king previous to the revolution, or by the
legislature of any of the States since, is, unless
in the latter case express power be for that pur-
pose reserved, within the protection of that
clause of the constitution of the United States
which among other things forbids a State from
passing any " law impairing the obligation of
contracts/'^ A corporate franchise, however,
as to build and maintain a toll bridge, may, by
virtue of the power of eminent domain, be con-
demned by a State to public uses, upon just
compensation, like any other private prop-
erty.* /
ADMISSION. In trading and joint stock
corporations no vote of admission is requisite,
for any person who owns stock therein, either
by original subscription or by conveyance, is in
general entitled to, and cannot be refused, the
rights and privileges of a member. 1 All that
can be required of the person demanding a
transfer on the books is to prove to the corpora-
tion his right to the property. In a mutual
insurance company a person may become a
member by insuring his property, paying the
premium and deposit money, and rendering
himself liable to be assessed according to the
rules of the corporation.
AMOTION (the removal of an official
agent of a corporation before the expiration of
the term for which he was appointed, from a
station assigned to him") may be exercised
with or without an express reservation for just
cause ;P and in the case of mere ministerial
officers appointed during the mere pleasure of
those appointing them.i Mere acts which are
a cause for amotion do not create a vacancy
till the amotion takes place.' The causes for
amotion may be: I. Such as have no immedi-
ate relation to the office, but are in themselves
of so infamous a nature as to render the of-
fender unfit to execute any public franchise, but
indictment and conviction must precede amo-,
lion for such causes. 2. Such as are on'y.
against his oath and the duty of his office as a'
corporator, and amount to breaches of the.
tacit condition annexed to his office. 3. Such
poration, and that the legislature cannot repeal, impair,
or alter it against the consent, or without the default of
the corporation ; judicially ascertained and declared. Id.
U-6 How. 507. 1-3 Mass. 364 ; Dougl. 524; i M. & R.
529. ill-See 8 Pick. 90. n-2 Mass. 315. 0-8 T. R.
356; i East. 562 : 6Conn. 532. -|-i Burr. 539; Dough
149. j-Willcock Mumc. Corp. 253; 21 Mo. 22; see i
Ventr. 77; a Show. 70; n Mod. 403; 9 Wend. 394. r-
2 Green. 333.
CORPORATIONS
419
as are an offence, not only against the duty of
hi* office, but also a matter indictable.'
See DlSFRANCHlSEMENT, below.
BODY CORPORATE OR POLITIC.
These terms are undoubtedly correct though
very early terms applied to corporations.*
BY-LAWS, ORDINANCES, OR
RULES. The power to make by-laws is
usually conferred by express terms of the char-
ter creating the corporation ; though, when not
expressly granted, it is given by implication;
it is incident to the very existence of a corpora-
tion. Where there is an express grant, limited
to certain cases and for certain purposes, the
corporate power of legislation is confined to
the objects specified, all others being excluded
by implication.* The power of making by-
laws is to be exercised by those persons in
w horn it is vested by the charter ; but if th.it
instrument is silent, it resides in the members
of the corporation at large."
The Constitution of the United States and
<>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 <jf deeds and other
writings in his possession.
The right to discovery is not unlimited ; as,
for instance, the defendant is not bound to
make a discovery which would subject him to
punishment, nor, ordinarily, to discover the
titles upon which he relies for his defence ; nor
is the plaintiff" entitled to require the production
of all papers which he may desire to look into.
The limits of the right deserve careful consid-
eration. The discovery, when had, may be the
foundation of equitable relief in the same suit,
in which case it may be connected with all the
classes of cases in which relief is sought ; or it
may be for the purpose of being used in some
other court, in which case the jurisdiction is
designated as an assistant jurisdiction.
2. Where courts of law do not, or did not
recognize any right, and therefore could give
no remedy, but where courts of equity recog-
nize equitable rights, and of course give equit-
able relief. This was denominated exclu-
sive jurisdiction. Of this class are : trusts,
charities, forfeited and imperfect mortgages,
penalties, and forfeitures, imperfect considera-
tion, etc. In most of the cases which fall
under this head, courts of law exercise a con-
current jurisdiction.
3. Where the courts of equity administer
equitable relief for the infraction of legal rights
in cases in which courts of law, recognizing the
right, give a remedy according to their princi-
ples, modes, and forms, but the remedy is
deemed by equity inadequate; this is called
concurrent jurisdiction. It embraces fraud,
mistake, accident, administration, legacies, con
tribution, and cases where justice and con-
science require the cancellation or reformat vn
of instruments, or the recission, or the spe\ iiU
performance of contracts.
4**
EQUITY.
The courts of law relieve against fraud, mis-
take, and accident where a remedy can be had
according to their modes and forms ; but there
are many cases in which the legal remedy is
made equal to the purposes of justice. The
modes of investigation and the peculiar reme-
dies of the court of equity are often of the
greatest importance in this class of cases.
Transfers to defeat or delay creditors and pur-
chasers without notice of an outstanding title
come under this head of fraud. The court
does not relieve in all cases of accident or
mistake.
In many cases the circumstances are such as
to require the cancellation or reformation of
written instruments, or of specific performance
of contracts, instead of damages for the breach
of them.
4 Where the court of equity administers the
remedy because the relations of the parties are
such that there are impediments to a legal rem-
edy, as, for instance, in cases of partnership, joint
tenancy, marshalling of assets, and the like.
From the nature of a partnership there are im-
pediments to suits at law between the several
partners and the partnership in relation to mat-
ters involved in the partnership; and impedi-
ments of a similar character exist in other
cases.
5. Where the forms of proceeding in the
courts of law are not deemed adequate to the
due investigation of the particulars and details
of the case. This class includes accounts,
partition, dower, ascertainment of boundaries.
6. Where, from a relation of trust and con-
fidence, or from consanguinity, the parties do
not stand on equal ground in their dealings
with each other, as, the relations of parent
and child, guardian and ward, attorney and
client, principal and agent, executor and ad-
ministrator, legatees and distributees, trustee
and cestui qui trust, etc.
Cases of this class are sometimes considered
under the head of constructive fraud.
7. Where the court grants relief from con-
siderations of public policy, because of the
mischief which would result if the court did
not interfere. Of this class are marriage
brokerage agreements, contracts in restraint
of trade, buying and selling public offices,
agreements founded on corrupt considerations,
usury, gaming, and contracts with expectant
heirs.
Cases of this class are sometimes considered
under the head of constructive fraud.
8. Where a party, from incapacity to take
care of his rights, is under the special care of
the court of equity, as infants, idiots, and luna-
tics, which is exercised through committees or
guardians.
9. Where the court recognizes an obligation
on the part of a husband to make provision for
the support of his wife, or to make a settlement
upon her, out of the property which comes to
her by inheritance or otherwise. This juris-
diction is not founded upon either trust or
fraud, but is originally derived from the maxim
" that he who asks equity should do equity."
10. Where the equitable relief appropriate
to the case consists in restraining the commis-
sion or continuance of some act of which the
defendant administered by means of a writ of
injunction.
1 1 . Where the court aids in the procuration
or preservation of evidence of the rights of a
party, to be used, if necessary, in some subse-
quent proceeding, the court administering no
final relief.
PLEADING. A suit m equity is ordinaniy
instituted by a complaint or petition, called a
bill, and the defendant is served with a writ
of summons, called a subpoena, requiring him
to appear and answer.
The forms of proceedings in equity are such
as to bring the rights of all persons interested
before the court; and, as a general rule, all
persons interested should be made parties to the
bill, either as plaintiffs or defendants. There
may be amendments of the bill, or a supple-
mental bill ; which is sometimes necessary
when the case is beyond the stage for amend-
ment. In case the suit fails by the death of the
party, there is a bill of reviver, and after the
cause is disposed of there may be a bill of re-
view.
The defence is made by demurrer, plea, or
answer. Discovery may be obtained from the
plaintiff, and further matter may be introduced
by means of a cross bill, brought by the defend-
ant against the plaintiff, in order that it may be
considered at the same time.
If the plaintiff elects, he may file a replica-
tion to the defendant's answer.
The final process is directed by" the decree,
which being a special judgment can provide
relief according to the nature of the case.
This is sometimes by a perpetual injunction.
There may be a bill to execute, or to im-
peach a decree.
PRACTICE. The rules of evidence, except
as to the effect of the answer and the taking
of the testimony, are, in general, similar to the
rules of evidence in cases of law. But to this
there are exceptions.
The answer, if made on oath, is evidence
for the defendant so far as it is responsive to
the bill for discovery, and as such it prevails,
unless it is overcome by something more than
what is equivalent to the testimony of one wit-
ness. If without oath, it is a mere pleading,
and the allegations stand for proof.
If the answer is incomplete or improper, thtf
plaintiff may except to it, and it must be so
amended as to be made sufficient and proper.
The case may be heard on the bill and answer
if the plaintiff so elects, and sets the case down
for hearing in that mode.
If the plaintiff desires to controvert any of
the statements in the answer, he files a replica-
tion by which he denies the truth of the alle-
gations in the answer, and testimony is takea
The testimony was formerly taken upon inter
EQUITY ESTATES.
4*9
togatoriea filed in the clerk's office, and pro-
pounded by the examiner; this practice is
extensively modified. If any of the testimony
k improper, there is a motion to suppress it.
The case may be referred to a master to state
the accounts between the parties, or to make
such other report as the case may require.
The examination of parties may be in the
master's office. Exceptions mav be taken to
his report.
The hearing of the case is before the equity
judge, who may make interlocutory orders or
decrees, and who pronounces the final decree
or judgment. There maybe a re-hearing, if
sufficient cause is shown.
Erasure. See WRITING.
Error. See PRACTICB.
Escape. See CRIMINAL LAW ; ARREST.
Escheat. See REAL PROPERTY.
Escrow. See CONVEYANCES.
ESTATE. See PROPERTY, ETC.
ESTATE includes: i. In its widest sense
everything of which real or personal property
may consist.' 2. In its more limited sense it
applies to lands.
ALIENATION. See CONVEYANCES.*
BOUNDARIES. See REAL PROPERTY.
CONTINGENT ESTATES depend upon events
which may or may not happen ; as, an estate
limited to a person not in being, or not yet
born. 1
COPARCENARY ESTATES are those where
several persons hold as one heir, whether male
or female ; they have three unities of time, title,
and possession, but the interest of the copar-
ceners may be unequal.*
CURTESY. Estates by the curtesy are those
to which the husband is entitled upon the
death of his wife, in the lands and tenements
of which she was seized in fee simple or entail
during their marriage, provided they have had
lawful issue born alive and possibly capable of
inheriting her estate. 1 " It is the freehold estate
for the term of his natural life.
EXECUTED ESTATES are those whereby the
present interest passes to and resides in the
tenant, not dependent upon any subsequent
circumstance or contingency. They are also
called estates in possession. 4
EXECUTORY ESTATES are those interests
which depend for their enjoyment upon some
subsequent event or contingency, as an execu-
tory devise, executory remainder, etc.
FEE SIMPLE ESTATES are those given to one
and their heirs absolutely without any end or
limit, etc. See CONVEYANCES, ante.
FEE TAIL ESTATE. See CONVEYANCES,
ante.
FUTURE ESTATES commence in possession
at a future day, either without the intervention
X-8 Ves. Ch. 504; 16 John*. 587; 4 Met. Mass. 178;
3 Cranch. 97. y-Alienatioa is particularly applied to
a!' solute convtyances of real property, i N. Y. 290, 294.
z-Crabbe Real Prop. J 946. a-i Washb. R. Prop. 474 ;
2 Sharsw. Bl. Comm. 188; 4 Kent Comm. 366. b-i
Washb. R. Prop. 138; a Crabbe R. Prop. J 1074; Co.
Litt. 30 a; i Sharsw. Bl. Comm. 126; Greenl. Cruise
Dig. 153; 4 Kent Comm. 373, n. a. c-i Washb. R.
Prop. 127. tl-2 Sharsw. Bl. Comm. 162, and vested
of a precedent estate, or on the determination
by lapse of time, or otherwise, of a precedent
estate created at the same time, thus excluding
reversions, which cannot be said to be created
at the same time because they are a remnant of
the original estate remaining in the grantor.
INHERITANCE Are those estates which may
descend to one's heirs.* All freehold estates
are estates of inheritance, except estates for
life.'
INSOLVENT ESTATES are in general the
subject of statutory regulation.
JOINTURE is a joint estate limited to both
husband and wife.* It is a competent livelihood
of freehold for the wife of lands and tenements,
to take effect, in profit or possession, immedi-
ately after the death of the husband, for the
life of the wife at least ; to make a good join-
ture the following circumstances must concur :
I. It must take effect, either in possession or
profit, immediately from the death of the hus-
band. 2. It must be for the wife's life, or for
some greater estate. 3. It must be limited to
the wife herself, and not to any other person in
trust for her. 4. It must be made in satis-
faction for the wife's whole dower, and not of
a part of it only. 5. The estate limited to the
wife must be expressed or averred to be in
satisfaction of her whole dower. 6. It must
be made before marriage. A jointure attended
with all these circumstances is binding on the
widow, and is a complete bar to her dower;
or, rather, it prevents the existence of dower.
But there are other modes of limiting an estate
to a wife which are good jointures, provided
the wife accepts them after the death of the
husband. She may, however, reject them, and
claim her dower. h
JOINT TENANCY is the estate which subsists
between several persons in any subject of
property in equal shares by purchase. 1 The
right of survivorship is the distinguishing char-
acteristic of this estate.^
LEGAL ESTATES are those the right to which
may be enforced in a court of law ; they are
distinguished from equitable estates, the right
to which can be established only in a court of
equity. k
LIFE ESTATES are freeholds, not of inheri-
tance, but which is held by the tenant for his
own life, or the life or lives of others, or for an
indefinite period, which may endure for the life
or lives of persons in being; and not beyond
the period of a life. 1 Where the measure of
duration is the tenant's own life it is called an
estate " for the tenant's own life." When the
measure of duration is the life of another per-
son it is called an estate "per autre vie " (for
another's life). These estates may be created
estates, e-t Washb. R. Prop. 51 ; Steph. Comm. 218.
f-Crabbe R. Prop. J 945. |f-2 Bl. Comm. 137. b-
Cruise Dig. Tit. VII; 2 Bl. Comm. 137. I-t Washb.
R. Prop. 406; Williams R. Prop. 112; i Bl. Comm.
180. j-Litt. \ 280. k-Bouv. hist. n. 1688. l-i Washb.
R. Prop. 88 ; Crabbe R. Prop, g 1020 ; i Greenl. Cruise
Dig. 102 ; Co. Litt. 42 a; Bracton Lib. 4, Ch. 28, j 207.
in-i Washb. R. Prop. 88 ; 2 Sharsw. Bl. Comm. iao;
Co. Litt. 41 b ; 4 Kent Comm. 33, 24.
ESTATES.
by net of the laws, or of the parties. The chief
incidents to estates for life are a right to take
therefrom the necessary timber and natural
material for fuel, fencing, repairs, and agricul-
tural purposes, and a freedom from injury by a
sudden termination or disturbance of the es-
tate. Under-tenants have the same privileges
as the original tenant, and acts of the original
tenant which would destroy his own claim to
these privileges will not affect them. Their
right, however, does not, of course, as against
the superior owner, extend beyond the life of
the original tenant.
PARTICULAR ESTATES are those which are
carved out of larger estates, and which pre-
cedes a remainder ; as, an estate for life to A.,
remainder to B. in tail. This precedent estate
is called the particular estate.?
REMAINDER. See REAL PROPERTY.
REVERSION is the residue of an estate left in
the grantor to commence in possession after the
determination of some particular estate granted
out by him.' It is the residue of an estate
which always continues in him who made a
particular grant.* 1
SEIZIN. See CONVEYANCES; REAL PROP-
ERTY.
SEPARATE ESTATES are those which belong
to one only of several persons ; as, the separate
estate of a partner, which does not belong to
the partnership. 1 A separate estate of a mar-
ried woman is that which belongs to her, and
over which her husband has no control. It
may be either lands or chattels, or both.*
SEVERALTY. Estates in severally are those
held by a tenant in his own right only, without
any other being joined or connected with him
in point of interest during the continuance of
his estate."
SUFFERANCE. An estate at sufferance is the
interest of a tenant who has come rightfully
into possession of lands by permission of the
owner, and continues to occupy the same after
the period for which he is entitled to hold by
such permission.* This estate seldom occurs,
but is recognized as so far an estate that the
landlord must enter before he can bring eject-
ment against the tenant." If the tenant has
personally left the house the landlord may break
in the doors, 1 and the modern rule seems to be
that the landlord may use force to regain pos-
session, subject only to indictment if any injury
is committed against the public peace.'
UNITY. In a joint estate there must exist
four unities: I. That of interest, for a joint
n-See 10 Penn. St. 323. 0-2 Sharsw. Bl. Comm. 122 ;
1 Rolle Abr. 727; i Washb. R. Prop. 88, et sey. ; 21
Flintoff. R. Prop. 232 ; i Greenl. Cruise Dig. 102, et iff.
p-2 Bl. Comm. 165; 2 Kent Comm. 226; i6VinerAbr.
.116; Com. Dig 32; 5 Id. 346. q-2 Sharsw. Bl. Comm.
176, Co. Liu 22; Crabbe R. Prop. ? 2345. r-Plowd.
151 ; i Greenl. Cruise Dig. 817; Co. Litt. 22 6, 142 b.
;-? Botiv. Inst. n. 1519. 1-4 Barb. 407; i Const. 452;
2 Bouv. Inst. n. -\oa6. n-2 Bl. Comm. 179 ; Cruise Di?.
479, 48. 079: i Washb. R. Prop. 112. v-i Washb. R.
Prop. 392 ; a 61. Comm. 150 ; Co. Litt. 57, b. ; Smith
J.andi. & T. 217; Crabbe R. Prop. ? 1543. W-3 T. R.
M2; 8 Id. 403; i M. & G. 644. x-i Bingh. 58 ; 17
Pick. *6j, 366. y-7 T. R. 431 ; i Cush. 482 ; 7 Met.
tenant cannot be entitled to one period of <lur.i-
tion or quantity of interest in lands and the
other to a different; one cannot be tenant for
life, and the other for years. 2. That of titles,
and therefore their estates must be created by
one and the same act. 3. That of time, for
their estates must be vested at one and the same
period, as well as by one and the same title ;
and, 4. That of possession. Hence joint ten-
ants each have an entire possession, as well of
every parcel as of the whole. 1
Co-parceners must have the unities of inter-
est, tille, and possession.
Tenancies in common require only the unity
of possession.*
WILL. Estates strictly at will are of unfre-
quent occurrence, being generally turned into
estates for years, or from year to year, by the
decisions of the court or by statute. b See
SUFFERANCE, above; YEARS, below.
YEARS. Estates for years are interests in
lands by virtue of a contract for the possession
of them for a definite and limited period of
time. Such estates are frequently called terms.
The length of time for which the .estate is to
endure is of no importance in ascertaining its
character, unless otherwise declared by statute. 4
ADMINISTRATION is the manage-
ment of the estate of an intestate person, under
a commission from the proper authority, is
called administration. The management of the
estate of an intestate, or of a testator who has
no executor.*
The term is generally applied as denoting
the management of an estate by an executor,
and also the management of the estates of in-
ebriates, intestates, lunatics, minors, non com-
potes mentis, spendthrifts, testators, etc., in
those cases where guardians and trustees have
been appointed by authority of law to take
charge of such estates in place of the legal owners.
ADMINISTRATION AD INTERIM. Where any
considerable time has elapsed since the decease
of the testator or intestate, letters of adminis-
tration may be granted at once, even where a
will is supposed to exist, to continue only till
the executor shall prove the will, or some other
steps shall be taken to compel its production.'
See ADMINISTRATION TO COLLECT AND PRE-
SERVE, ETC., below.
AUXILIARY OR ANCILLARY ADMINISTRA-
TION is subordinate to the principal adminis-
tration, for collecting the estates of foreigners.
It is taken out in the country where the assets
are locally situate.* For the authority of a per-
Mass. 147 ; 14 Mees. & W. 437 ; 4 Johns. 150; i W.
S. 90; i Washb. R. Prop. 390, 396; 7 M. & G. 316; 13
jnhns. 235 ; 13 Pick. 36. Z-2 Bl. Comm. 179-182 ; Co.
Litt. 188. a-2 Sharsw. Bl. Comm. 192; 2 Bouv. Inst.
nn. 1861-1883. *>* 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, <><! 100-311 ; 1 6 Johns. 14-?. c-i Greenl. Ev.
\ 367 ; i Phill. Ev. with Cowen & H. Notes, 3d Ed. 4 ;
3 C. & P. 598 ; i Mood. Cr. Cas. 86 ; 10 Mass. 22^ ; 16
Johns. 143. h-2o Ind. 44. l-i Pet C. C. 356; 4 Munf.
2 73I 3 Wend. 337. J-i Greenl. Ev. g 249. It-Id. |J
250-252 (A.) 1-See i Greenl. Ev. 329- -564. 111-13 Vt.
370; see 30 Barb. 338 ; sold. 379; 47 Id. 419 ; sMurph.
L. & Eq. 314. 11-17 Jur. 559 ; 22 L. Jour. (N. S.) Ex.
319 ; 19 E. L. & E. 35j, and see i E. D. Smith, 153 ; 28
Barb. 484; 21 Id. 158. O-i Bosw. 655; 7 Ab. 74; i
Rob. 607; i Bosw. 614; zSandf. 669. p-23 Barb. 444.
q-Id. ; 3 E. D. Smith, 275 ; 10 U. Can. Q. B. 321 ; a
Code R. 143. r-23 Barb. 444; 3 E. D. Smith. 275: so
U. Caa. Q. B. 321 ; Code R. 143.
454
EVIDENCE.
or impeached in the same manner as any other
wilness. T
Defendants cannot testify for themselves un-
less allowed by statute. But where a material
witness for the defendant is indicted jointly with
the defendant, and no evidence is given against
him, he will be acquitted at once, and may be
a witness for the other defendant."
EXAMINATION OF WITNESSES. An oral
examination is an examination in the presence
of the jury or tribunal which is to decide the
fact, or act upon it; the testimony being heard
by the jury or tribunal from the lips of the
witness.
Examinations of witnesses are had viva voce,
by questions and answers.
On motion, in civil and criminal cases, WK-
nesses will generally be excluded from the
court room while others are undergoing exami-
nation in the same case; this, however, is not
a matter of right, but within the discretion of
the court. 1
Witnesses are required to testify from their
own knowledge and recollection, yet they are
permitted to refresh their memory by reference,
while on the stand, to papers written at or very
near the time of the transaction in question
even though they were not written by them-
selves, and though the writing in itself would
be inadmissible in evidence.'
Being once in attendance, a witness may, in
general, be compelled to answer all questions
which may legally be put to him. 1 Yet there
are exceptions to this rule. Me is not com-
pellable where the answer would have a ten-
dency to expose him to a penal liability, or any
kind of punishment, or to a criminal charge.*
But the court decides as to the tendency of the
answer, and will instruct the witness as to his
privilege. b The question whether an answer
would have this tendency is to be determined
by the oath of the witness." And, in point of
fact, out of the necessity of the case, it is a
matter which the witness may be said practi-
cally to decide for himself. The witness may
answer if he chooses ; and if he do answer
after having been advised of his privileges, he
must answer in full ; and his answer may be
nsed in evidence against him for all purposes. 4
Whether a witness be compellable to answer
to his own degradation or infamy is question-
able ; but a witness cannot refuse to testify
simply because his answer would tend to dis-
grace him \ it must be seen to have that effect
certainly and directly. 9 He cannot refuse to
give testimony which is material and relevant
to the issue, for the reason that it would dis-
grace him ; f but he may refuse where the ques-
T-8 Abb. 302 ; 30 Barb. 338. w-Holt. N. P. 273 ; qC.
&P.83. X-i Stark. 1733; i Greenl. Ev.?432 ; 2 Phill.
Ev. 395 ; 4 Carr. & P. 585 ; 7 Id. 632 ; 2 Swanst. 1237 ;
3 Wis. 214. y-i Greenl. Ev. ?? 436-44 : 2 Phill. Ev.
411-416 ; 2 Cow. & H. notes . 337 ; I Stark. Ev. 128 ;
o Pick. 441 ; 2 C. & P. 275 ; loN. H. 544. -Seeante.
B-i Greenl. Ev. W 451, 453 ; 2 Phill. Ev. 417. b-a Phill.
Ev. 417; 4 Gush. 594; i Denio, 319. -17 Jur. 393.
d-i Greenl. Ev. 3J 45', 453 : ' Stark. Ev. 144 ; 2 Phill.
Jtv. 425; 4 Wend. 252; n Gush. 437; it Vt. 491 ; 20
tion (being put on cross-examination) is not
relevant and material, and does not in any way
affect the credit of the witness.* Whether a
witness, when a question is put on the cross-
examination which is not relevant and material
to the issue, yet goes to affect his credit, will
be protected in refusing to answer simply on
the ground that his answer would have a direct
and certain effect to disgrace him, is a matter
not clearly agreed upon. There is good
reason to hold that a witness should be com-
pelled to answer in such a case. h But the
whole matter is one that is largely subject to
the discretion of the courts. 1 And there seems
no doubt that a witness is in no case competent
to allege his own turpitude, or give evidence
which involves his own infamy or impeaches his
most solemn acts, if he be otherwise qualified
to testify.!
Cross-examination. After a witness has
been examined in chief, the other party has a
right to cross-examine him. k
One of the principal objects of the cross-
examination of a witness is to ascertain the full
extent of his knowledge as to the facts to
which he testifies. It is certainly one of the
most efficacious tests which the law has de-
vised for the discovery of the truth ; and
greater latitude is allowed in the manner of
putting questions, and a witness may be so
led as to bring him directly on the point as to
the answer; but not to go to the length of
putting into the witness' mouth the very words
which he is to answer, 1 or echo back again.
Leading questions, however, are allowed upon
cross-examination. Nor are the rules against
questions not relevant and material to the issue-
always enforced upon cross-examination i
stage of the trial at which great latitude in the
form and subject-matter of questions is gener-
ally allowed, in order that juries may be fully
apprised of " the situation of the witness with
respect to the subject of litigation, his interest,
his motives, his inclination, and prejudices, his
means of obtaining correct and certain knowl-
edge of the facts to which he bears testimony,
the manner in which he has used those means,
his powers of discernment, memory, and de-
scription." Yet witnesses cannot be cross-
examined as to collateral and irrelevant mat-
ters for the purpose of contradicting them by
other evidence." Their testimony as to such
matters is always conclusive against the party
questioning. " If, by an unfortunate or un-
skilful question put on cross-examination, a
fact be extracted which need not have been
evidence upon an examination in chief, then it
becomes evidence against the party so cross-
N. H. 450. C-i Greenl. Ev. ^454; i M. & M. 108 ; 4
Wend. 250; 2lred. 346. f-i Greenl. Ev. J 456. {; i
Greenl. Ev. ? 458; 3 Campb. 519; I3N.H-92; i Gray
108. h-i Greenl. Ev. \ 459 ; i Stark. Ev. 144-147 ;' ?
Phill. Ev. 421-431 ; i Carr. & P. 85 ; a Swanst. 216 ; >
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. <S 435 ; R. & M. 126. fo-i Campb.
43; i Stark. loo. c-i Stark. Ev. 150; 2 Phill. Ev. 407;
i Greenl. Ev. ?? 442, 443. d-i C. & P. 418 ; 4 Esp. 67.
e-3 Campb. 519. f-g Ind. 106. |f-3 Bouv. lust. .
3224, et stg, Il-i Stark. Ev. 147 ; i Gteenl. Ev. '$ 442,
443. 1-Stark. Ev. pt. iv, 1753: i Greenl. Ev. $401,
402. j-i Greenl. Ev. 462; 2 Phill. Ev. 433; 2 Cow. &
H. Note, n, 300; 5 Blackf. 217; 6 Id. 496; 7 Id 186 ; 8
Id 148 ; 8 Ind. 314 ; 9 Id. 264 ; 4 Id. 194 ; 20 Ohio, 87.
k-3 Jones L. 428. 1-4 Comst. 49;. ni-4 Blackf 395;
4 Ind. 222 ; 6 Id. 502. w-Bac. Abr. v . (F.); 4 lad
456
EVIDENCE FRAUD.
There is no difference in evidence between
sealed and unsealed writings ; and every writ-
ing not sealed has the same force and effect
that it would have if sealed.
Proof of handwriting is made by the testi-
mony of a witness who saw the paper or signature
actually written, or one who has by sufficient
means acquired such a knowledge of the gen-
eral character of the handwriting of the party
as will enable him to swear to his belief that
the handwriting of the person is the handwrit-
ing in question.
An instrument in writing must be proved by
at least one subscribing witness.? If there be
none, by competent proof that the signature of
the person whose name is undersigned is gen-
uine.i A knowledge of a party's handwriting
may be derived from a fixed correspondence
between the parties, and by letters, r and where
the witness has directed letters to the parties
and received answers,' and by a clerk employed
to inspect franks.* The opinions of persons
accustomed to the examination of handwriting,
of the genuineness of a signature, by comparing
it with papers in the party's handwriting, already
filed in the case, may be permitted. Proof of
the death of the attesting witness ; T or his in-
sanity;* his residence beyond the jurisdiction
of the court ; that his name is unknown ; or
that he cannot be found after diligent inquiry;
in all these cases the execution of the instru-
ment may be proved by other evidence.*
If the adverse party, pending the cause,
agrees to admit the execution, other proof is
not necessary.'
Ex Parte. See PRACTICE.
Ex Post Facto. See LAW.
Examined Copy. See EVIDENCE.
Exceptions. See CONTRACTS ; PRACTICE.
Exchange. See BONDS, NOTES AND BILLS MER-
CANTILE LAW.
Exclusive. See TIME.
Excuse. See PRACTICE.
Execute. See CONVEYANCES.
Executed Consideration. See CONTRACTS ;
CONSIDERATION.
' Execution. See PRACTICE.
Executive. See OFFICE AND OFFICERS.
Executor. SeeEsTATF.s: PERSONS.
Exemplary. See DAMAGES.
Exemption. See EXECUTION; PRACTICE.
Exhibit. See PRACTICE.
Expatriation. See CITIZEN.
Experts. See EVIDENCE.
Extinguishment. See CONTRACTS.
Extortion. See CRIMINAL LAW.
Extract. See COPYRIGHT.
Eyewitness. See EVIDENCE; WITNESSES.
Facts. See EVIDENCE.
Factors. See BAILMENTS.
False Imprisonment. See IMPRISONMENT.
False Pretences. See CRIMINAL LAW.
Falsehood. See FRAUD.
Family. See PERSONS. RELATIONS.
Farmer. See OCCUPATION.
Farrier. See OCCUPATION.
Father. See PERSONS, RELATIONS.
Fathom. See WEIGHTS AND MEASURES.
Fault. See CONTRACTS.
Fear. See CRIMINAL LAW.
O-i Phill. Ev. 441 , Starkie Ev. : 2 Johns. Cas. 211 ;
5 Johns. 144 , 10 Id. 134 ; i Dall. 14 ; 2 Me. 33 ; 6 S. &
R 568;iNott & M'C 554; i Id. 400; Anth. N. P.
77; 4 Gray, 167; 5 Cush. 205; 7 Com. Dig. 447; Bac.
Abr. Et/iaenie (M) Dane Abr. Index, p-4 Johns. 641 ;
* John*. C*(. 330; 2 East. 250. q-iz Shepl. 254 ; 2$
Fee Simple. See CONVEYANCE* : DEBUS.
Fee Tail. See CONVEYANCES ; DEEDS.
Feloniously. See CRIMINAL LAW.
Felony. See CRIMINAL LAW.
Female. See PERSONS.
Fence. See REAL PROPERTY.
Ferae Naturae. See ANIMALS.
Ferry. See HIGHWAYS.
Fieri Facias. See PRACTICE.
Figures. See CONTRACTS ; PRACTICE.
Final Decree. See PRACTICE; JUDGMENT.
Final Judgment. See PRACTICE; JUDGMENT.
Final Process. See PRACTICE; PROCHbs.
Firm. See PARTNERSHIP. <
Fish. See ANIMALS.
Fishery. See REAL PROPERTY ; WATER.
Fixing Bail. See PRACTICE.
Fixtures. See LANDLORD AND TENANT.
Flag. See INTERNATIONAL LAW.
Flight. See CRIMINAL LAW.
Foet icide. See MEDICAL LAW.
Fo?tlis. See MEDICAL LAW.
Foot. See WEIGHTS AND MEASURES.
Forcible Entry or Detainer. See PRACTICE.
Foreclosure. See PRACTICE.
Foreign. See PRACTICE.
Foreign Attachment. See PRACTICE.
Foreign Judgment. See PRACTICE.
Foreign I.au x. See LAWS.
Forfeiture. See CONTRACTS ; CRIMINAL LAW.
Forgery. See CRIMINAL LAW.
Form. See PRACTICE.
Formality. See CONTRACTS.
Former Recovery. See PRACTICE ; JUDGMENT.
Fortuitous Event. See ACCIDENT.
Forwarding Merchants. See AGENTS; BAIL-
MENTS.
Franchise. See CORPORATIONS.
FRAUD. See AGENCY; CONTRACTS; CONVEY-
ANCES. ETC.
FRAUD is the unlawful appropriation of
another's property with knowledge, by design,
and without criminal intent. Fraud is some-
times used as a term synonymous with " covin,"
"collusion," and deceit, but improperly so.
" Covin " is a secret contrivance between two
or more persons to defraud and prejudice
another of his rights. " Collusion " is an
agreement between two or more persons to de-
fraud another under the forms of law, or to
accomplish an illegal purpose. Deceit is a
fraudulent contrivance by words or acts to de-
ceive a third person, who, relying thereupon,
without carelessness or neglect of his own,
sustains damage thereby.' Actual or positive
fraud includes cases of the intentional and suc-
cessful employment of any cunning, deception,
or artifice used to circumvent, cheat, or deceive
another. 1 " For instance, the misrepresentation
by word or deed of material facts, by which
one exercising reasonable discretion and confi-
dence is misled to his injury, whether the mis-
representation was known to be false, or only
not known to be true, or even made altogether
innocently; the suppression of material facts
which one party is legally or equitably bound,
to disclose to another; all cases of unconscien-
tious advantage in bargains obtained by impo-
sition, circumvention, surprise, and undue in-
fluence over persons in general, and especially
Wend. 159 ; 3 Ohio, 42 ; 6 Hill, 303 ; B. N. P. 264 : i
P. Wms. 471. r-t Bl. 384; i Ph. Ev. 467; 2 C. & P.
21. s-R. & M. 190. t-2 Ph. Ev. 714. n-ipOhio, 426.
V-7 T. R. 265: '2 Mod. 607. w-gCampb. 283 ; 9 Ves.
381. x-i Greenl. 572; i Ph. Ev. 455: 6 East. 84 :
East. 183 ; i Stark. 90. -Co, Litt. 357, b. b-i Story
Ro. Jur. \ 186.
FRAUD.
457
ver those who are by reason of age, infirmity,
idiocy, lunacy, drunkenness, or other incapacity
unable to take due care of and protect their
own rights and interests ; bargains of such an
unconscionable nature and of such gross in-
equality as naturally lead to the presumption
of fraud, imposition or undue influence, when
the decree of the court can place the parties in
statu quo ; cases of surprise and sudden action
without due deliberation of which one party
takes advantage; fraudulent awards, with in-
tent to do injustice ; fraudulent prevention of
acts to be done for the benefit of others under
false statements or false promises ; frauds in
relation to trusts of a secret or special nature;
frauds in verdicts, judgments, decrees, and
other judicial proceedings, and frauds upon
creditors and other persons standing upon a
like equity, are cases of actual fraud. Legal
or constructive fraud includes such contracts or
acts as, though not originating in- any actual
design or contrivance to perpetrate a fraud, yet
by their tendency to deceive or mislead others,
or to violate private or public confidence, are
prohibited by law. Thus, for instance, con-
tracts against some general public policy or
fixed artificial policy of the law; cases arising
from some peculiar confidential or fiduciary re-
lation between the parties where advantage is
tuken of that relation by the person in whom
the trust or confidence is reposed, or by third
persons ; agreements and other acts of parties
which operate virtually to delay, defraud, and
deceive creditors; purchases of property, with
full notice of the legal or equitable title of other
persons to the same property (the purchaser be-
coming by construction particeps criminis with
the fraudulent grantor). 4
To constitute fraud: I. It must be such an
ppropriation as is not permitted by law. 2. It
must be with knowledge that the property is
another's, and with a design to deprive him of
it. 3. It is not itself a crime, for want of a
criminal intent, though it may become such in
cases provided by law. 8
Fraud, in its ordinary application to contracts,
includes any trick or artifice employed by one
person to induce another to fall into or detain
him in an error ; so that he may take an agree-
ment contrary to his interest ; and it may con-
sist in misrepresenting or concealing material
facts, and may be effected by words or by ac-
tions. While, on the one hand, courts have
aimed to repress the practice of fraud ; on the
other, they require that before relieving a party
from a contract on the ground of fraud, that it
should be made to appear that on entering into
such a contract he exercised a due degree of
-i Story Eq. Jur. c. 6. d-i Story Eq. Jur. c. 7. e-
Liverm. Pen. L. 739. f-Vigilantibus nan dormienti-
tus luccurunt leges The laws assist the vigilant, not
the careless. Tayl. L. Gloss. ST-Per Tindal, C. J. ; 2
Scott. 588, 594 ; 4 Barn. & C. 506, 512 ; Per Parke, B
4 M. & W. 115, 122. h-6 Clark & F. Ho. L. 232 ; Cor
Contr. 38 ; Per Tindal, C. J. ; 3 Mann. & G. 446, 450
i-9 B. & C. 387 ; Per I.ittledale, J . J-i Fonblanque Eq
(3d Ed.) 66, .; 6th Ed. 122, and notes ; Newl. Contr
|j ; i W. Bl. 465 ; Dougl. 450 ; 7, Burr. 1909 ; 3 Ves
caution.' A misrepresentation as to a fact, the
truth or falsehood of which the other party has
an opportunity of ascertaining, or the conceal-
ment of a matter which a person of ordinary
sense, vigilance, or skill might discover, does
not in law constitute fraud. Misrepresentation
as to the legal effect of an agreement does not
avoid it as against a party whom such misrepre-
sentation has induced to enter into it, every
man being presumed to know the legal effect
of an instrument which he signs, or of an act
which he performs. An intention to violate,
entertained at the time of entering into a con-
tract, but not afterwards carried into effect, does
not vitiate the contract.* But when one person
misrepresents or conceals a material fact which
is peculiarly within his own knowledge, or, if
it be also within the reach of the other party,
is a device to induce him to refrain from in-
quiry and is shown that the concealment or
other deception was practised with respect to
the particular transaction, such transaction will
be void on the ground of fraud. h And even
the concealment of a matter which may disable
a party from performing the contract is a fraud. 1
EFFECT OF FRAUD. Fraud when
sufficiently proved and ascertained, avoids a
contract (specialty or transaction), ab initio,
whether the fraud be intended to operate
against one of the contracting parties, or against
third parties, or against the public,! and this
though the fraud does not appear on its face.*
I. The fraud must be material to the contract
or transaction which is to be avoided on account
of it; for if it relate to another matter, or to
this only in a trivial and unimportant way, it
affords no ground for the action of the court.
Thus a misrepresentation by the vendor of a
horse, as to the place where he bought it, is
not such a material fraud as will avoid the sale
of the horse. 1 2. It must relate distinctly and
directly to this contract ; and it must affect its
very essence and substance. 3. The fraud
must work an actual injury. If it be only an
intended fraud, which is never carried into
effect, or if all be done that was intended, but
the expected consequences do not result from
it, the law cannot recognize it. n And if there
be a fraud, and it be actually injurious, the in-
jured party can recover only the damage di-
rectly attributable to the fraud, and not an
increase of this damage caused by his own indis-
cretion or mistake in relation to it ;P and if no
damage be caused by the fraud, no action lies.'
4. And 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
full belief of its truth ; for otherwise it was his
& B. Ch. 42 ; 3 Chitty C. L. 155, 306, 698 ; i Sch. & L.
209; Verplank Contr. passim. ; Domat. L. Civ. p. 1,1,
4 t, 6, ? 3, . 2. fe-3 T. R. 418 ; 2 Starkie Ev. 586 ; 3
Chitty Contr. 81, 222. 1-5 Dow. 159; i Barb. 471. m-
4 Scott N. R. 13 ; 3 Mann. & G. 446 ; i Exch. 798. n-
4 M. & W. 115 ; 15 C. B. 207; 29 Eng. L. & Eq. 261 ;
15 C. B. 597; 29 Eng. L. & Eq. 290; 25 Penn. St. 413;
55 Id. 504. 0-12 East. 632 ; 9 Ired. 5^7; 5 Cush. 23.
p-5 C. & P. 363. q-2 Mass. 112; 15 Me. 143; n Vt.
615; j Dev. 69. r-u Wend. 374; 4 Ga. 95,
458
FRAUD.
own fault or folly, and he cannot ask the law
to relieve him from the consequences. 1 Where
a party is obliged to rely upon the statements
of another, and not only may but should repose
peculiar confidence in him, this is in the nature
of a special trust, and the law is very jealous of
a betrayal of this trust and visits it with great
severity. So all transactions with feeble per-
sons, whether they are so from age, sickness,
or infirmity of mind, are carefully watched.'
On the other hand, if the statement be false in
fact, and injurious because false, if it were be-
lieved to be true by the party making it, it is
not a fraud on his part." If the statement be
in fact false, and be uttered for a fraudulent
purpose, which is in fact accomplished, it has
the whole effect of fraud in annulling the con-
tract, although the person uttering the state-
ment did not know it to be false, but believed
it to be true. T If the falsehood be known to
the party making the statement, malice or self-
interest will be inferred."
The fraud of an agent, by a misrepresenta-
tion which is embodied in the contract to
which his agency relates, avoids the contract.
But the party committing the fraud cannot in
any case himself avoid the contract on the
ground of fraud.*
In general, concealment is not in law so
great an offence as misrepresentation. Con-
cealment to be actionable must of course be of
such facts as the party is bound to communi-
cate.' 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.* Men differ in opinion ; and if any
one relies on mere opinion, instead of ascer-
taining facts, it is his own folly.
Misrepresentation need not be made by the
party whom it benefits, in order to constitute a
fraud against him. And it is for this reason
that if A. trust B. upon the fraudulent recom-
mendation of C., A. is not left to his action for
damages against C. for the deceit, but the fraud
of C. invalidates the contract between A. and
B., and gives A. the same right to retake the
goods as if the fraud had proceeded directly
from B. himself.* It may be his by adoption. 1 *
A principal may commit a fraud by an agent ;
or may even be affected by the fraud of his
agent, although personally honest.
Material misrepresentations, which go to the
substance of a contract, avoid that contract,
8-138. & Marsh. 363; 5 How. (Miss.) 165; 7 Blackf.
102; 4 B. & C. 506; 8 Blackf. 277; 5 Hill, 303; 2 Bibb.
602 ; 2 Ired. 32 ; i Dev. 6p ; 34 Penn. St. 365. t-2
Johns. Ch. 238; i Knapp, 77. u-5 Q. B. 820: 2 East.
92 ; i C. B. 951 ; 8 Exch. 725 ; 20 Eng. L. & Ex. 470 ;
14 M. & W. 651 ; i Met. i ; 4 Id. 151 ; 7 Cranch. 69 ; 8
Johns. 25 ; i Smith (Ind.) 102 ; i Carter, 178 ; I Har-
ring. (Del.) 131 ; 6 Barr, 316 ; 13 How. 198 ; 7 Vt. 67 ;
ii How. Pr. 242, 254; i Holt, 387; 2 Man. & G. 475.
T-II M. & W. 401. w-i2 Met. 549 ; 9 Q. B. 197 ; 6
Barr, 310. x-Chitty Contr. 590, and cases cited, y-3
Eng. L. & Eq. 17 ; 3 Conn. 413 ; 5 Ala. 596; i Yeates,
307; 5 Penn. St. 467; 8 N. H. 463: 16 Me. 30; i
Strobh. 220 ; i Dev. 351 ; 18 Johns. 403 ; 6 Humph. 36.
fc-j Blskf. 18 ; 3 BuUtr. 94 ; 18 Me. 418 ; 7 Scott, 341 ;
whether they are caused by mistake, and occur
wholly without fault, or are designed and
fraudulent. 4 This principle is carried so far,
that if one acquires property by a purchase
founded upon his misrepresentations, especially
if they are not only false but fraudulent, he
acquires no right in the property, but the seller
may retake it in the same manner as if it had
been stolen ; that is, with all reasonable neces-
sary force.* The obtaining goods under false
pretences, under color of purchasing them, or
otherwise, does not change the property.'
Where a sale is fraudulently procured by the
vendee, he may be sued by the vendor, before
the expiration of the credit agreed on to be
given. B
A fraudulent party cannot himself assert his
fraud, and claim as his right any advantages
resulting from it ; for no man can be permitted
to found any rights upon his own wrong ; h
and if both parties are in fault the law will not
interfere between them : and this is so, if both
parties be actually fraudulent, although the
beginning, and the greater fraud, may be on
one side or the other. 1
The fraud may be proved by parol evidence,
or any circumstances, however contrary to
apparent facts or statements in the written
instrument^ This rule does not contravene
the general one against the admissibility of
parol testimony against written, as the effect
and result of such evidence is, that the instru-
ment never had any operation ; and on grounds
of policy and necessity this rule may be sup-
ported.* The mode of proving fraud must
depend upon the facts of each particular
case.
Fraud gives no action in any case without
damage, 1 and in matters of contract it is merely
a defence ; it cannot in any case constitute a
new contract. It is essentially ad hominem*
(to the interests or passions of the party).
STATUTE OF FRAUDS. No action
shall be brought in any of the following cases,
(unless made in writing and signed by the
party to be charged thereby, or by some person
thereunto by him legally authorized) :
1 . To charge an executor or administrator,
upon any special promise, to answer damages
out of his own estate ; or,
2. To charge any person, upon any special
promise, to answer for the debt, default, or
miscarriage of another; or,
3. To charge any person, upon any agree-
1 Simmons, 89; 6 Scott, 540; 3 B. & C. 623. -2i Vt.
120. b-3 Sumner, 8 ; 10 S. & Marsh. 169 ; 2 Barr, 105 ;
2 Ellis & B. 476 ; 20 Eng. L. & Eq. 120 ; 5 Bing. N. C.
97; 3 Scam. 170; 17 Ohio, 16. C-2i Vt. 129, and cases
therein reviewed. <l-3 Mo. 477 ; 4 How. (Miss.) 435 ;
4 Scam. 569 ; Coxe, 48 : i Woodb. & M. 90 ; Id. 342;
2 Id. 246; 3 Story, 700; 4 B. Mon. 601. e-i8 Vt. 504.
f-7 Taunt. 59; 6 Mod. 114. Jf-i Esp. 430; 2 Id. 523.
ll-9 B. & C. 532; 5 Mass. 116; 19 Me. 281 ; 2 Harring.
(Del.) 198 ; 6 Q. B. 166 ; 18 Me. 231 ; Cro. J. 270; 2 B.
& A. 367 ; i W. Bl. 363. i-i McLean, 460; i Ohio St.
262 ; 20 Wend. 24 ; i Falrf. 71 ; 27 Miss. 13. J-B. N.
P. 172 ; 2 B. & A. 370. k-3 B. & C. 623. 1-3 T. R.
56. ni-7 Ves. Ch. 211 ; a Miles, 299. n-4 T. JR.. 3371
338.
FRAUD.
459
ttient or promise, made in consideration of
marriage; or,
4. Upon any contract for the sale of lands, or,
5. Upon any agreement that is not to be per-
formed within one year from the making there-
of, unless the promise, contract or agreement,
upon which such action shall be brought, or
some memorandum or note thereof, shall be in
writing, and signed by the party to be charged
therewith, or by some person thereunto by him
lawfully authorized ; excepting, however, leases
rot exceeding the term of three years.*
The consideration of any such promise, con-
tract, or agreement, need not set forth in such
writing, but may be proved. P
No action shall be maintained, to charge any
person by reason of any representation made
concerning the character, conduct, credit, abil-
ity, trade, or dealings of any other person, un-
less such representation be made in writing,
and signed by the party to be charged thereby,
or by some person thereunto by him legally
authorized."!
It is obvious that the general purpose of the
above section is to permit no party to bind him-
self except by a written promise signed by
him; because this will secure an exact state-
ment and the best evidence of the terms and
conditions of the promise. r
What is a sufficient signing. A substantial
signing of the agreement is sufficient, although
it is not literal and formal.' Hence if the
agreement be not itself signed, but a letter
alluding to and acknowledging the agreement
is signed, this is sufficient.* It is not, however,
enough that the agreement be written by the
party himself, unless he also signs it." If, how-
ever, he writes his name in any part of the
agreement, it may be taken as his signature ; v
but not otherwise." Where one is in the habit
of using instruments with his name printed in
them, this will be his signature. 1 And so if he
writes it in pencil.' The agreement need not
be signed by both parties, but only by him who
is to be charged by it ;* and he is estopped
from denying the execution of the instrument
on the ground that it wants the signature of the
other party. The signature may be made by
an agent, a but the agency must be an agency
for this purpose. 6 The agent may be authorized
by parol.*
0-29 Car. II. Ch. 3, \ 4. p-Id. p. 351, ? 2. q-Id. ?
6. T-Brown Stat. Frauds, <i 346. 8-3 Atkins, 503. t-3
Bro. Ch. 161, 318 ; 2 B. & P. 238 ; 5 Esp. 190 ; i Campb.
513; 3 Taunt. 169; 3 Beav. 469; 5 Exch. 907; 6 Cow.
445 ; i Cray, 409 ; Cheves, 68 ; 8 Ala. 546 ; i Bing. 9.
U-i P. Wins. 770 ; 3 Merriw. 2 ; 12 J. B. Moore, 216 ; 10
Ohio, 399 ; 4 Scott (N. R.) 486 ; 3 Johns. 399 ; 7 Minn.
368. \-i Rus. & M. 625 ; 2 M. & W. 653 ; 12 Johns.
102; 14 Id. 484; 3 Merriw. 53; 13 Mass. 87 ; i Esp.
190; 2 B. & P. 238. w-iCox,2i9; 3 Pick. 83; lojur.
789. x-3 Esp. 180; 2 B. & P. 238; 2 M. &S. 286. y-
12 Johns. 102 ; 74 Id. 484 ; 2 Speers, 292 ; i Strobh. Eq.
347; 5 B. & C. 234. -Vin. Abr. tit. C. and A. (L) pi.
17; 7 Ves. 265; 9 Id. 351 ;
i Jac. & W. 426; 2 Bing.
Taunt. 169; 2 M. & S.
(N. C.)735: 6 East. 307; 3
286 ; 3 Johns. Cas. 60 ; 14 Johns. 484; 16 Wend. 460;
7 Blackf. 452; 13 Mass. 87 ; 2 Nott. & M'Cord, 207 ; 3
Greenl. 409 ; 4 Russ. 298 ; 5 Sanf. 101. a-19 Pick. 502 ;
6 Foster, 327; 12 Simons, 28 ; 2 Chitty, 205; i N. H.
s84 ; 13 M. & W. 743 ; $ Bing. (N. CO 603 ; 3 Merriw.
The agreement must contain all that belongs
essentially to the agreement, 4 and more thar>
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<x, 219; 12 Johns.
156 ; 20 N. Y. 463 ; 13 Jnd. 475 : 8 Fla. 161 ; 15 Johns.
409,124; 3 Caines, 226, 234: 2 M'Cord, 406. n-iz N.
H. 474; 2 Gallis. 45; 22 Pick. 291 ; 2 Cush. 475 ; I
Kern. 406. O-i Pall. 265; 2 Wend. 501; 4 Cow. 496;
5 Id. 187; 6 Id. 193; 5 Vt. 177; i Speers, 209; i Rice,
ai ; 2 Blackf 313; i Bibb. 443 ; 20 Ark. 410. p-i4Vin.
Abr. 458, pe. 8 ; 3 Atk. Ch. 579 ; 9 Watts, 510. q-i
Marring. 106; 3 W. & S. 437. r-3 Dev. & B. 70; 5
Humph. 406; 19 Ark. 690; 13 Mo. 252. s-Bunb. 119;
6 Mod. 138; i Str. Ch. 649 ; 2 Ld. Raym. 733 ; 2 Burr.
1081; 5 Ves. Ch. 533; 158. & R. 264: i M'Cord, 370;
6 Daaa, 70; x Hcmpst. C. C. 155 ; 18 Ala. (N. S.) 300;
cisely what he is to pay, and when he is to pay
it m on an unsettled claim, after a demand of
payment." But inteiest is not due for unliqui-
dated damages, or on a running account, where
the items are all on one side, unless otherwise
agreed upon ; on the arrears of an annuity se-
cured by a specialty,? or given in lieu of
dower ;"> 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/<w/, " when interest will
he barred." t-i6 Vt. 297. n-i Eq. CAS. Abr. 287 ;
Fonbl. Eq. b. i, c. i. \ 4, note a; 31 Vt. 679 ; 34 Penn.
St. 210. V-i Johns. Ch. 14; Cam. & N. 361 : 13 Vt.
430. w-2 Salk. 449 ; G. Cooper. Ch. 231 ; 5 Paige, 98 ;
3 Ham. 18; 4 Rand. 406. x-2 Anst. 496; 5 B. & Aid.
34 ; 2 Ves. 15 ; 3 Camp. 466 : i Stark. 487 ; i Bnld. 536;
3 Camp. 467. y-'3 E. L. & E. 140; i Johns. Ch. 620;
j Id. 497; 7 Vf. & S. 48: 18 Pick, i; 7 Yerg. 172; 2
lowed,* though not after mutual dealings have
ceased. g In cases where it is expressly stipu-
lated that interest shall be payable at certain
fixed times, it has been held that interest may
be charged upon the interest from the time it
is payable.*
Where a partner has overdrawn the partJie*--
ship funds, and refuses, when called upon 'c
account, to disclose the profits, recourse woi?W
be had to compound interest as a substitute for
the profits he might reasonably be supposed to
have made. 8 And when executors, adminis-
trators, or trustees convert the trust money to
their own use, or employ it in business or
trade, or fail to invest, they are chargeable with
compound interest.'
In an action to recover the annual interest
due on a promissory note, interest will be
allowed on each year's interest until paid.'
An infant's contract to pay interest on inter-
est will be binding upon him when it is for his
benefit. 11
CpMPUTING INTEREST. In cast-
ing interest on notes, bonds, etc., upon which
partial payments have been made, every pay-
ment is to be first applied to keep down the in-
terest; but the interest is never allowed to
form a part of the principal so as to carry in-
terest. 1 When a partial payment exceeds the
amount of interest due when it is made, it is
correct to compute the interest to the time of
the first payment, cast interest on the remainder
to the time of the second payment, add it to
the remainder, and subtract the second pay-
ment, and in like manner from one payment to
another, until the time of judgments*! And
the same rule applies to judgments.*
Where a partial payment is made before the
debt is due, it cannot be apportioned part to the
debt and part to the interest. As, if there be
a bond for one hundred dollars, payable in one
year, and at the expiration of six months fifty
dollars be paid in, this payment shall not be
apportioned part to the principal and part to
the interest, but at the end of the year interest
shall be charged on the whole sum, and the
obligor shall receive credit for the interest of
fifty dollars for six months. 1
FOREIGN INTEREST. The rate of
interest of the place of performance is to be
M'Cord Ch. 200 ; 12 Ala. 354 : 6 Dana, 3 ; 14 111. T : 16
How. 535. z-3 N. H. 40: 5 Paige, 98. a-2 Salk. 459;
i Ves. Jr. 99; i Johns. Ch. 13; 5 Paige, 98; 8 Mass.
455 ; 2 Cush. 92 ; 2 B. Men. 336 ; 4 Rand. 406 ; 7 Greenl.
48 : 4 Yeates, 220. b-2 Johns. Ch. 210, 214 : 3 Wash.
C. C. 350; 3 Cal. 231. -3 Wash. C. C. 396, 402: it
Met. 210. d-i Tayl. 231 : Cam. & N. 357; 2 Nott &
M'Cord, 38 ; 2 Hill. (S. C.) 408 ; 3 Rich. 125 ; i N. H.
179; 2 Cush. 92 : 7 Greenl. 48; i Am. L. Cas. 341, 371.
e-2 Johns. Ch. 113. f-i Pick. 528; i Johns. Ch. 610.
jf-2 Mass. 568 ; 8 Id. 445 : i N. H. 179 ; 16 Vt. 45 : see
as to charging compound interest the following cases : i
Johns. Ch. 550; Cam. & N. 361 ; i Binn. 165 ; 4 Yeates,
220; i Hen. & M. 4: 3 Id. 89; Vin. Abr. 4=7, Int. (C.);
Com. Dig. Chancery (3 S. 3): i Hate & W. Sel. Dec.
371. h 2 T. R 388. i-2 Wash. C. C. 167; i Halst.
408: 2 Hayw. 17: 17 Mass. 417; i Dall. 378; see 14
Conn. 44S- J-i Pick. 194 ; 4 Hen. & M. 431 ; 8 S. & R.
458 ; 2 Wash. C. C. 167; see 3 Wash. C. C. 350, 39 fi :
Cow. 86. Jt-3 N. H. 169, S S. &. R. 4ia. l-i Dalt
470
INTEREST.
allowed where such place is specified," other-
wise of the place of making the contract."
But the rate of interest of either place may be
reserved ; and this provision will govern, if an
honest transaction, and not a cover for usury.
LIMITATION OF INTEREST.
When the money due is tendered to the person
entitled to it, and he refuses to receive it, the
interest ceases.* Where the plaintiff is absent
in foreign parts beyond the seas, evidence of
that fact may be given in evidence to the jury
on the plea of payment, in order to extinguish
the interest during such absence.'
Whenever the law prohibits the payment of
the principal, interest during the prohibition is
not demandable. r
If the plaintiff has accepted the principal,
he cannot recover the interest in a separate
action. 1
To THE PENALTY OF BOND. It is a gen-
eral rule that the penalty of a bond limits the
amount of the recovery.* But in some cases
the interest is recoverable beyond the amount
of the penalty." The recovery depends on
principles of law, and not on the arbitrary dis-
cretion of a jury.*
The exceptions are : Where the bond is to
account for moneys to be received ; w where the
plaintiff is kept out of his money by writs of
error, 1 or delayed by injunction;* if the re-
covery of the debt be delayed by the obligor ;*
if extraordinary emoluments are derived from
holding the money;* or the bond is taken only
as a collateral security; 1 * or the action be on a
judgment recovered on a bond. But these
exceptions do not obtain in the administration
f the debtor's assets, where his other creditors
might be injured by allowing the bond to be
rated beyond the penalty. 4
RISK OR SERVICE. A lender may
charge an extra price for the risk he incurs, if
that risk is distinct and different from the mere
personal risk of the debtor being unable to
pay; for nothing of this kind is any justification
whatever for more than legal interest. But
where repayment of money loaned is made to
depend upon the happening of contingent events,
there the lender may lake, beside interest for
the sum loaned, enough more to insure him
against the casualty which might destroy his
claim; that is, as much more as the risk is
m-io Wheat. 367; 4 Pet. in : 20 Johns, tea ; 8 Pick.
04 ; 6 Paige. 627 ; 3 N. Y. 266 ; 12 La. An. 815 ; I B.
Mon. 29; 2 W. & S. 327 ; 23 Vt. 286; 21 Ga. 135; 22
Tex. 108 ; 7 Ired. 424 : 5 Clark & F. Ho. Lds. 1-12. 11-
> 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.<i Jibbs. r
Salt pans. g Shrubs planted for sale. 1 Soap
works, Vats." Steam engine.* Stills.' Trees
planted for sale. 1 Varnish housed
LANDLORDS. The principal obligation
on the part of the landlord, which is, in fact,
always to be implied as a necessary condition
to his receiving any rent, is, that the tenant
shall enjoy the quiet possession of the premises,*
which means, substantially, that he shall not be
turned out of possession of the whole or any
material part of the premises by one having a
title paramount to that of landlord, or that the
landlord shall not himself disturb or render his
occupation uncomfortable by the erection of a
nuisance on or near the premises, or otherwise
oblige him to quit possession. 1 * But if he be
ousted by a stranger, that is, by one having no
title, or after the rent has fallen due, or if the
molestation proceeds from acts of a third per-
son, the landlord is in neither case responsible
for it." Another obligation which the law im-
poses on the landlord, in the absence of any
express stipulation in the lease, is the payment
of all taxes and assessments chargeable upon
the property, or any ground-rent or interest
upon mortgages to which it may be subject.
Every landlord is bound to protect his im-
mediate tenant against all paramount claims.
And if a tenant is compelled, in order to pro-
tect himself in the enjoyment of the land in
respect of which his rent is payable, to make
payment which ought, as between himself and
his landlord, to have been made by the latter,
he may call upon the landlord to reimburse
him, or he may deduct such payment from the
rent due or to become due. d But the landlord
is under no obligation to make repairs, or to
rebuild in case the premises should be burned ;
r.or does he guarantee that they are reasonably
fit for the purposes for which they were taken.
And it is not in the power of a tenant to make
repairs at the expense of his landlord, unless
there be a special agreement between them
authorizing him to do so ; for the tenant takes
the premises for better or for worse, and can-
not involve the landlord in expense for repairs
without his consent. 6 Even if the premises
have become uninhabitable by fire, and the
j-?2 E. L. & E. 422 ; S. C. 16 C. B. 637. k-i7 S. &
R. 413; 6 Bing. 437; 10 Pick. 500, 504. l-io Pick. 500,
^04. nt-3 Atk. 13. 11-3 Atk. 13; Ambl. 113. O-i Salk.
"',68. 3 Atk. 38. p-Ambl. 113." q-? Esp. n. r-2 B. &
Aid. '165. s-i H. Bl. 259, . t-2 East. 88 ; i Met. 27.
u-i Salk. 368. v-2 Dev. L. 376 ; 4 Watts, 330. w-s
Cowen, 323; 3 Mo. 207. x-2 East. 88; i Met. 27. y-
2 East. 88. a-There is an implied covenant on the part
of the lessor to put the lessee into possession, and that
he shall quietly enjoy. 4 Bing. N. C. 678; 5 Id. 183;
Hob. 12. 10 Mod. 142; Shepp. Touchst. ; 4 Rep. 80,
b. ; 3 M. & P. 57 ; 26 E. L. & E. 568. But unless the
lease be under seal there is no implied covenant for good
title, but only for quiet enjoyment. 20 E. L. & E. 374 ;
S. C. 8 Exch. 013. b-3 East. 401 ; 6 Dowl. & R. 349 ;
8 Cow. 747; 7 Wend. 281 ; 13 N. Y. 151 ; a DCT. 388;
landlord having insured them has recovered
the insurance-money, the tenant cannot compel
him to expend the money so recovered in re-
building, unless he has expressly engaged to do
so; nor can he, in such an event, protect him-
self from the payment of rent during the uiv
expired balance of the term/ unless exempted
therefrom by statute or the terms of the lease.
The uninhabitableness of a house is not a
good defence to an action for rent.* And if
the landlord expressly covenanted to repair,
the tenant cannot quit and discharge himself
of the rent because the repairs are not made,
unless there is a provision to that effect. 11 And
if a landlord is bound by custom or by express
agreement to repair, this obligation, and the
obligation of the tenant to pay rent, are inde-
pendent of each other, so that the refusal or
neglect of the landlord ta repair is no answer
to a demand for rent. 1
TENANT. The tenant, upon taking pos-
session, is at once invested with all the rights
incident to the possession ; is entitled to the
use of all the privileges and easements appur-
tenant to the tenement, and to take such reason-
able estovers and emblements as are attached
to the estate. He may maintain an action
against any person who disturbs his possession,
or trespasses on the premises, though it be the
landlord himself.J As occupant, he is answer-
able for any neglect to repair highways, fences,
or party walls, it being generally sufficient, ex-
cept where a statute otherwise provides, to
charge a man with such repairs by the name of
occupant. He is also liable for all injuries pro
duced by the mismanagement of his servants,
or by a nuisance kept upon the premises, or
by an obstruction of the highway adjacent to
them, or the like ; for, as a general rule, where
a man is in possession of property, he must so
manage it that other persons shall not be injured
thereby . k
One of the principal obligations which the
law imposes upon every tenant, independent of
any agreement, is to treat the premises in such
a manner that no substantial injury shall be
done to them, and so that they may revert to
the landlord at the end of the term unimpaired
by any wilful or negligent conduct on his part.
In the language of the books, he must keep
the buildings wind-and-water-tight, and is
bound to make fair and tenable repairs, such
as the keeping of fences in order, or replacing
doors and windows that are broken during his
4 Mass. 349 ; 5 Day, 282. e-i T. R. 671 ; 3 Johns. 471 ;
7 Wend. 281 : 4 Dev. 46; 5 Hill, 599; 6 Mass. 246; 13
East. 72 ; 12 Wend. 529 ; 25 Barb. 594. d-6 Taunt. 524 ;
12 East. 469 ; s Bingh. 409 ; 3 B. & Aid. 647 ; 7 B. & C.
285 ; 3 Ad. & E. 331 ; 3 M. & W. 607 ; 5 B. & Aid. 521.
e-6 Cow. 475 : 3 Duer, 464 ; i Sauna. 320; 7 East. 116;
i Ry. & M. 357 ; 7 Mann. & G. 576. f-8 Paige, 437 ; i
Sim. Ch. 146; i T. R. 314; see 3 Rob. (La.) 52. i-io
M. & W. 321 ; 12 Id. 68; 5 Bing. N. C. 501 ; 12 E. L.
& E. 173 ; 4 Comst. 126 : i Sneed, 613 ; 3 Duer, 464 ; 7
Hill, 83. h-7 Mann. & G. 576. i-Bro. Abr. D.pl. 18 ;
27 H. 6, 10, a. pi. 16; Reporter's . to Mann. & G. 576
J-iDenio, 21; Cro. Car. 325 ; 3 Wils. 461 ; 2 H. Bl.
924 ; 2 B. & Ad. 97 ; 3 Cr. & R. 557. K-3 T. R. 766 ,
3 6. B. 449 ; i Scott (N . R.) 392 ; 4 Taunt. 649 ; 5 B. &
C. 553 ; 6 M. & W. 499.
LANDLORD AND TENANT.
475
occupation. If it is a furnished house, he must
preserve the furniture, and leave it, with the
linen, etc., clean, and in good order. 1 But he
is not bound to any ornamental repair, as paint-
ing, papering, etc., although so broad a cove-
nant on his part as " to leave the premises in
good and sufficient repair, order, and condi-
tion," might cover these repairs. If he ex-
pressly agrees to keep the premises in repair,
and to deliver them up in good repair, he is not
justified in permitting them to remain out of
repair by the fact that they were so when he
received them." But the age and character of
the premises must be considered in determining
the proper extent of the repairs. If the land-
lord is under no legal obligation to repair, and
the tenant voluntarily makes them, the landlord
is not bound to repay him for the expense.?
But there would be a sufficient consideration to
sustain a subsequent promise by the landlord.
A tenant is not bound to rebuild premises which
have accidentally become ruinous during his oc-
cupation, nor is he answerable for ordinary wear
and tear, nor for an accidental fire, nor to put a
new roof on the building, nor to make what are
usually called general or substantial repairs;
neither is he bound to do painting, whitewash-
ing, or papering, except so far as they may be
necessary to preserve exposed timber from de-
cay .1 With respect to farming leases, a tenant
is under a similar obligation to repair, but it
differs from the general obligation in this : that
it is confined to the dwelling-house which he
occupies the burden of supporting the out-
buildings and other erections on the farm being
sustained by either the landlord or the tenant,
in the absence of any express provision in the
lease, by the particular custom of the country
in which the farm is situated. He is always
bound, however, to cultivate the farm in a good
and husbandmanlike manner, to keep the fences
in repair, and preserve the timber and orna-
mental trees in good condition; and for any
violation of any of these duties, he is liable to
be proceeded against by the landlord, and this
whether the act be committed by the tenant or
a stranger." 1
The tenant's general obligation to repair also
renders him responsible for any injury a stranger
may sustain by reason of his neglect to keep the
premises in a safe condition; as, by not keep-
ing the covers of his vaults sufficiently closed,
so that a person walking in the street falls
through, or is injured thereby. If he repairs
or improves the building, he must guard against
accident to the passers-by in the street, by erect-
ing a suitable barricade, or stationing a person
there to give notice of the danger;" for any un-
1-5 C. & P. 239 ; 7 Id. 327 ; 4 T. R. 318 ; 18 Ves. Ch.
331 ; 2 Esp. 590; 4 Mann. & G. 95 ; 12 M. & W. 827.
lll-io B. & C. 12 ; i Marsh. 567 ; 6 M. & W. 458 ; 8 Id.
790. n-i6 M. & W. 541. o-Id. 4 Bing. N. C. 451; 7
A. & E 36; 2 Man. & R. 186. p-6 Cowen, 475. q-6
T.R.650; 6C.&P.8; 12 Ad. & E. 476 ; i Marsh.
567; 10 B. & C. 312. r-Co. Litt. 53 ; 6 Taunt. 300; 5
fohns. 373; 13 East. 18 ; 3 Mood. 536; 2 Dougl. 745; i
Taunt. 198 ; i Denio, 104. 8-4 T. R. 318; 28 Barb.
194; 6 N. Y. 48; 4 Id. 222. t-iS. &R. 217; 6 East.
437; 6 C. & P. 636; i Denio, 524; Tayl. Landl. &Ten.
reasonable obstruction which he places in the
highway adjoining his premises, he may be in-
dicted for causing a public nuisance, or obstruct-
ing the highway, as well as rendered liable to
an action for damages, at the suit of any indi-
vidual injured. The law will tolerate such a
partial and temporary obstruction of the street
as may be necessary for business purposes ; as,
in receiving and delivering goods from a ware-
house, or coals or fuel on the sidewalk, or the
like : provided, always, that the public con-
venience does not suffer from it.'
The tenant's chief duty, however, is the pay-
ment of rent, the amount of which is either
fixed by the terms of the lease, or, in the
absence of an express agreement, is such a
reasonable compensation for the occupation of
the premises as they are fairly worth. If there
has been no particular agreement between the
parties, the tenant pays rent only from the time
he has had the beneficial enjoyment of the
premises; but if he has entered into an express
agreement to pay rent during the term, no
casualty or injury of the premises by fire or
otherwise nothing, in fact, short of an evic-
tion will save him from such payment," in
the absence of a statute or agreement exempt-
ing him in such event. But if he has been de-
prived of the possession of the premises, or
any part thereof, by a third person under a title
superior to that of the landlord, or if the latter
annoys his tenant, erects or causes the erection
of such a nuisance upon or near the premises,
as renders his occupation so uncomfortable as
to justify his removal, he is, in either case,
discharged from the payment of rent. T But it
is no answer to a demand for rent that the
premises are not in a fit and proper state and
condition for the purposes for which they were
hired. w If, therefore, the premises are burned
down, and the tenant is under no obligation to
rebuild (not having agreed to keep in repair),
or are destroyed by the act of God or the pub-
lic enemies, yet he is bound to pay rent there-
after. 1 Unless the lease contains a provision
that the rent shall cease or proportionately
abate while the premises remain wholly or in
part unfit for use.
The obligation to pay rent may be appor-
tioned; for, as rent is incident to the reversion,
it will become payable to the assignees of the
respective portions thereof, whenever that re-
version is severed by an act of the parties, or
of the law. But the tenant's consent is neces-
sary for the apportionment when made by the
landlord, unless the proportion of rent charge-
able upon each portion of the land has been
settled by the intervention of a jury.* A ten-
? 192. n-4 Paige Ch. 355 ; 18 Ves. Ch. 415 ; i Harr. &
J. 42 ; 16 Mass. 240; 3 Denio, 464 ; 3 Bos. & P. 420; 6
T.R.65o; 24 Wend. 454; Aleyn, 26 ; 4 Harr. & J.
564; i Bay, 499. v-2 Wend. 561 ; 12 Id. 529 : 4 Cow.
58; 8 Id. 727; 4 N. Y. 217; 2 Ired. 350; 30)110,364;
4 Rawle, 329 ; Co. Litt. 148, b. ; 2 East. 576; i Cowp.
242; 6 T. R. 458. w-12 M. & W. 68; 7 Mann. & 6.
576; i Ch. Cas. 83. x-Dallas, 210 ; 16 Mo. 214; 6
Mass. 62 ; i Harr. & Johns. 42; 4 Id. 546; i Bibb.
S36; s Barb. 601. y-22 Wend. 121; 2 Barb. 643' j
Denio, 454; i Dowl. & R. 291 ; 5 B. & Aid. 876.
LANDLORD AND TENANT LAW.
ant, however, cannot get rid of or apportion
his rent by transferring the whole or a part of
his lease ; for if he assigns it, or underlets a
portion of it, he still remains liable to his land-
lord for the whole.' Instances of an appor-
tionment by act ot law occur where there is a
descent of the reversion among a number of
heirs, or upon a judicial sale of a portion of
the premises belonging to them respectively.
So, if a man dies, leaving a widow, she will
have a right to receive one-third of the rent,
while the remaining two-thirds will be payable
to his heirs, 1 unless the apportionment be made
different by statute.
A tenant cannot dispute his landlord's title.
For he is estopped from changing by his own
act the character and effect of his tenure.*
And whenever a tenant disclaims his tenure, or
denies his landlord's title, or claims adversely
to him, or attorns to another as having title
against him, he forfeits his estate. But where
the lease was obtained by the fraud of the land-
lord, the tenant may defend against an action
brought on the lease by impeaching the land-
lord's title. b But this fraud must be practised
directly against the tenant. A disclaimer by a
tenant will work a forfeiture only when it
amounts to a renunciation of his character as
a tenant, which may be either by setting up a
title in another, or claiming title himself."
THIRD PERSONS. The rights and
liabilities of landlords and tenants are not con-
fined to the immediate parties to the con-
tract, but attach to all persons to whom the
estate may be transferred, or who may succeed
to the possession of the premises either as
landlords or tenants. This principle follows,
as a necessary consequence of that privity of
estate which is incident to the relation of land-
lord and tenant. A landlord may not violate
his tenant's rights by a sale of the property ;
neither can a tenant avoid his responsibilities
by substituting another tenant in his stead
without the landlord's consent. The purchaser
of the property becomes in one case the land-
lord, and is entitled to all the rights and reme-
dies against the tenant or his assignee which
the seller Had, while in the other case the as-
signee of the lessee assumes ail the liabilities
of the latter, and is entitled to the same pro
tection which he might claim from the assignee
of the reversion ; but the original lessee is not
thereby discharged from his obligations. 4
Language. Sec EVIDENCE, " Interpreter."
Lapse. See DEVISE ; LEGACY ; PATENT.
Larceny. See CRIMINAL LAW.
Last Sickness. See EVIDENCE, " Confession."
Last Will. See CONVEYANCES, "Wills."
Latent Ambiguity. See BONDS, NOTES, AND
BILLS; CONTRACTS.
Launch. See MERCANTILE LAW.
y-Cro Eliz. 633 ; 24 Barb. 333. -Cro. Eliz. 742 .-
15 Wend 464; Cro. Jac. 160; Co Litt. 148 ; i M. &
W. 747. a-n A. & E. 307, 10 Bing. 549; 4 M. & Sel
347; 2 Bing. 54; 7J. B Moore, 289; Holt, 489; 3 Pe-
ters, 43 ; 13 Ired. L. 498 ; 14 111 135 ; i Cal. 470 ; 16 E.
L & E. 232; S C.i E. & 6.630: 2 N.J. 261; ii
Humph. 183; $ Md. 404. fo-6 Binn. 45; Penn. St.
IS4: i Rawle. 4*i; 14 S. & R. 382. c-i Man. & G
LAW. See EQUITY; EVIDENCE; IGNORANCE;
KNOWLEDGE; PLEADING; PRACTICE, ETC., ETC.
LAW is a rule of civil conduct prescribed by
the supreme power in a State.* A rule or en-
actment promulgated by the legislative authority
of a State ; a long established local custom
which has the force of such an enactment.'
The rules and methods by which society com-
pels or restrains the action of its members.
The aggregate of those rules and principles of
conduct which the governing power in a com-
munity recognizes as the rules and principles
which it will enforce or sanction, and accord-
ing to which it will regulate, limif, or protect
the conduct of its members.
Arbitrary law is a law, or provision of law,
so far removed from consideration of abstract
justice that it is necessarily founded on the
mere will of the law-making power, so that it
is rather a rule established than a principle de-
clared. The principle that an infant shall be
bound by his contract is not arbitrary ; but the
rule that the limit of infancy shall be twenty-
one years, not twenty nor twenty-two, is arbi-
trary. The term is also sometimes used to sig-
nify an unreasonable law one that is in viola-
tion of justice. Irrevocable laws are those which
have not in their nature or in their language some
limit or termination provided, and are, in theory,
perpetual : but the perpetuity is liable to be de-
feated by subsequent abrogation. It has some-
times been attempted to secure an absolute per-
petuity by an express provision forbidding any
abrogation. But it may well be questioned
whether one generation has power to bind its pos-
terity by an irrevocable law.* Municipal law is a
system of law proper to any single State, nation,
or community. Positive law is the system natu-
rally established by a community in distinction
from natural law. A prospective law or statute
is one which applies only to cases arising after
its enactment, and does not affect that which is
already past. A retrospective law or statute is
one that turns backward to alter that which is
past, or to affect men in relation to their con-
duct before its enactment. These are also
called retroactive laws. In general, whenever
a retroactive statute would take away vested
rights, or impair the obligation of contracts, it
is so far void. 11 But laws which only vary the
remedies, or merely cure a defect in proceed-
ings otherwise fair, are valid. 1 A penal law is
one which inflicts a penalty for its violation. A
private or special law is one which relates to
private matters which do not concern the pub-
lic at large. A public or general law is one
which affects the public either generally or in
some classes.
ADMIRALTY relates to maritime affairs,
maritime causes, civil and criminal.
'35: 23 Pe
enn. St. 131. d-i? Johns. 239; 3 Harr. &
M'H. 387 ; 24 Barb. 365 ; 13 Wend. 136 19 Id. 68 : 8
Ves. Ch. 95 . i Ves. & B. Ir. n , 4 T. R. 5(9. e-i Step.
Comm. 25. f-io Pet. 18. g -See this subject discussed
by Bentham Works, vol. ii, pp. 402-407 ; and see Dwar-
ris Stat. 479. h-3 Call. 391. i-io S. & R. 102, 103;
15 Id. 72; 2 Pet. 380, 627 ; 8 Id. 88; 11 Id. 420; ec
Ex POST FACTO LAW./OJ/
LAW.
477
Admiralty jurisdiction (is exercised in the
first instance by the United States District
Courts, from which causes may be removed in
certain cases to the United States Circuit Court,
and ultimately to the Supreme Court of the
United States.
ADMIRALTY JURISDICTION IN CIVIL CASES
extends to average 1 bonds of bottomry, respon-
dentia,* charter parties, 11 contracts of affreight-
ment between different States or foreign ports, 1
contracts with material men.J contracts for
conveyance of passengers, k maritime contribu-
tions/ damages occurring at high seas, 1 hypoth-
ecation of ship and cargo,* jettisons/ pilotage," 1
cases of prize or ransom, respondentia,* seiz-
ures under the laws of impost, navigation, or
trade, surveys of ship and cargo ,P seamen's
wages,' trespasses occurring at high seas.'
ADMIRALTY JURISDICTION IN CRIMINAL
CASES extends to all crimes or offences com-
mitted on the high seas or beyond the jurisdic-
tion of any country. 8
CIVIL LAW. The term civil law is
generally used to designate the Roman Juris-
prudence, yus civile Romanorum* In its
most extensive sense the term Roman law
comprises all those legal rules and principles
which were in force among the Romans, with-
out reference to the time when they were
adopted, but in a more restricted sense we
understand by it the law compiled under the
auspices of the Emperor Justinian, and which
are still in force in many of the states of mod-
ern Europe, and to which all refer as authority
or written reason.
CODE LAW. A code is a body of law
established by legislative authority of the State,
and designed to regulate completely, so far as
a statute may, the subject to which it relates.
When it is considered how rapidly statutes
accumulate as time passes, it is obvious that
great convenience will be found in having the
statute law in a systematic body, arranged ac-
cording to subject-matter, instead of having it
unorganized scattered through the volumes
in which it was from year to year promulgated.
But this transposition suggests amendments for
the purpose of harmonizing inconsistencies,
supplying defects brought to notice, and also
the introduction of a system of all other rules
which are recognized as the unwritten or com-
mon law of the State. Still, however success-
fully a code might be supposed to embody all
existing and declared law, so as to supersede
all previous sources, it cannot be expected to
provide prospectively for all the innumerable
cases which the diversity of affairs rapidly
engenders, and there must soon come a time
f-6 McLean C. C. 573 ; 7 How. 720 ; 19 Id. 162 ; 21
Bost. L. Rep. 87, 96. g-i Curt. C. C. 340; 3 Sumn. C.
C. 228 ; i Wheat. 96; 4 Cranch. 328 ; 8 Pet. 353 ; 18
How. 63. h-i Sumn. C. C. 551 ; 2 Id. 589 ; 2 Story C
C. 81. 1-2 Curt. C. C. 271 ; 2 Sumn. C. C. 567; Ware
Dist. Ct. 188, 263, 32 ; 6 How. 344. j-4 Wheat. 438
sec 20 How. w ; 21 Bost. L. Rep. 601. It-i6 How
469 ; i BlatcM C. C. 56, 569 ; i Abb. Adm. 48 ; i
Newb. Adm. 494. 1-2 Parsons' Mart. L. ; see 2 Sumn
C. C. x. m-J Mas. C. C. 508; 10 Pet. 108; ia How
when it must be studied in a light of numerous
explanatory decisions resting in the reported
cases upon the same or a similar statute. These
discussions have called attention to a subject
formerly little considered, but which is of fun-
damental importance to the successful prepara-
tion of a code the matter of statutory expres-
sion. There is no species of composition which
demands more care and precision than that of
drafting a statute. The writer needs not only
to make his language intelligible, but he must
make it incapable of misconstruction. When
it has passed to a law, it is no longer his intent
that is to be considered, but the intent of the
words which he has used, and that intent is to
be ascertained under the strong pressure of an
attempt of the advocate to win whatever possi-
ble construction may be most favorable to his
cause. The true safeguard is found not in the
old method of accumulating synonyms and by
an accumulation of particulars, but rather by
concise but complete statement of the full prin-
ciple in the fewest possible words, and the
elimination of description and paraphrase by
the separate statement of necessary defini-
tions. One of the rules to which the New
York revisers generally adhered, and which
they found of very great importance, was to
confine each section to a single proposition.
In this way the intricacy and obscurity of the
old statutes were largely avoided.'
COMMERCIAL LAW; LAW MERCHANT;
MERCANTILE LAW. See titles, ACCOUNTS;
AGENCY ; BAILMENTS ; BONDS, NOTES, and
BILLS; INSURANCE; INTEREST, ante.
COMMON LAW. Common law is that
system of law, or form of the science of juris-
prudence, which has prevailed in England and
the United States of America, in contradistinc-
tion to other great systems. Those principles,
usages, and rules of action applicable to the
government and security of persons and of
property which do not rest for their authority
upon any express or positive declaration of the
will of the legislature." The law of any coun-
try : to denote that which is common to the
whole country in contradistinction to laws and
customs of local application.
The most prominent characteristic which
marks its contrast with other great systems of
the law, and perhaps the source of its distinc-
tion, lies in the fact that in the common law
neither the stiff rule of long antiquity on the
one hand, nor on the other the sudden
changes of an arbitrary power are allowed as-
cendency, but, under the sanction of a constitu-
tional government, each of these is set off
against the other; so that the will of the peo-
299; see 2 Paine C. C. 131 ; 9 Wheat, i, 207; R. M.
Charlt. 302, 314 : 8 Met. Mass. 332 ; i Bost. L. Rep. 20.
H-3 Ball. 6. o-U. S. Rev. Statutes. p-Story Const.
# 1665 ; 5 Mas. 465 ; 10 Wheat. 411 ; see 2 Parsons'
Marit. L. 511, n. <|-2 Parsons' Marit L. 509. r-a
Id. ; see 2 Sumn. C. C. i. 8-2 Parsons' Marit. L. t-
The reader who wishes to pursue this subject will see
Coode's Treatise on Legislative Expression (Loud.
1845); Gael. Legal Composition (Lend. 1840). u- 1
Kent. Comm. 492.
478
LAW.
pie, as it is gathered both from long established
custom and from the expression of the legisla-
tive power, gradually forms a system just, be-
cause it is the deliberative will of a free peo-
ple stable, because it is the growth of centu-
ries progressive, because it is amenable to the
constant revision of the people.
Perhaps the most important of these nar-
rower senses is that which it has when used in
contradistinction to statute law, to designate
unwritten as distinguished from written law.
It is that law which derives its force and
authority from the universal consent and im-
memorial practice of the people. It has never
received the sanction of the legislature by an
express act, which is the criterion by which it
is distinguished from statute law. When it is
spoken of as the lex non scripta, it is meant
that it is law not written by authority of law.
The statutes are the expression of law in a
written form, which form is essential to the
statute. The decision of a court which estab-
lishes or declares a rule of law may be reduced
to writing, and published in the reports; but
this report is not the law : it is but evidence of
the law ; it is but a written account of one
application of a legal principle, which princi-
ple in the theory of the common law, is still
unwritten. However artificial this distinction
may appear, it is nevertheless of the utmost
importance, and bears continually the most
wholesome results. It is only by the legisla-
tive power that law can be bound by phrase-
ology and by forms of expression. The common
law eludes such bondage ; its principles are not
limited, nor hampered by the mere forms in
which they may have been expressed, and the
reported adjudications declaring such principles
are but the instances in which they have been
applied. The principles themselves are still un-
written, and ready, with all the adaptability
of truth, to meet every new and unexpected
case; hence, it is said that the rules of the
common law are flexible/ It naturally results
from the inflexible form of the statute or written
law, which has no self-contained power of
adaptation to cases not foreseen by legislators,
that every statute of importance becomes, in
course of time, supplemented, explained, en-
larged, or limited by a series of adjudications
upon it, so that at last it may appear to be
merely the foundation of a larger superstruc-
ture of unwritten law. It naturally follows,
too, from the less definite and precise forms in
which the doctrine of the unwritten law stands,
and from the proper hesitation of courts to
modify recognized doctrines in new exigencies,
that the legislative power frequently intervenes
lo declare, to qualify, or to abrogate the doc-
trines of the common law. Thus the written
V-i Gray, 263 ; I Swanst. 42 ; 5 Cow. 587, 628, 632.
W-See i Bishop Crim. L. ? 15, note 4, \ 45. x-4 Den.
405: 3 Abb. Pr. 23. y-8 N. Y. 535. -i Gall, ao; i
Baldw. C. C. 554, 858; 3 Wheat. 223 ; 3 Pet. 446. -
3 Pel. 446.- i Baldw. C. C. 554. b-2 Pet. 144 ; 8 Id.
659 ; 9 Cranch. 333 ; 9 S. & R. 330 ; i Blackf. 66, 82,
206; i Kirb. Comm. 117; 5 Harr. & J. 356; 2 Aik.
and unwritten law, the statutes of the present
and traditions of the past, interlace and react
upon each other. Historical evidence support
the view which these facts suggest, that many
of the doctrines of the common law are but the
common law form of antique statutes, long
since overgrown and imbedded in judicial
decisions.
In this country the common law of England
has been adopted as the basis of jurisprudence
in all the States except Louisiana. Many <.f
the most valued principles of the common lav/
have been embodied in the constitution of the
United States, and the constitutions of the
several States ; and, in many of the States, the
common law and the statutes of England in
force in the colony at the time of our independ-
ence, are, by the State constitution, declared
to be the law of the State until repealed.*
Hence, where a question in the courts of one
State turns upon the law of a sister State, if no
proof of such laws is offered, it is, in general,
presumed that the common law as it existed at
the time of the separation of this country from
England prevails in such State. 1 The term
" common law," as thus used, may be deemed
to include the doctrine of equity .* But the
term is also used in the amendments to the
Constitution of the United States (Art. 7), in
contradistinction to equity, in the provision
that, " In suits at common law," etc., the
" common law " here mentioned is the com-
mon law of England, and not of any particular
State.* The term is used in contradistinction
to equity, admiralty, and maritime law.* The
common law of England is not in all respects
to be taken as that of the United States, or of
the several States; its general principles are
adopted only so far as they are applicable to
our situation. 1 * In general, too, the statutes of
England are not understood to be included,
except so far as they have been recognized by
colonial legislation, but the course pursued has
been rather to re-enact such English statutes as
were deemed applicable to our case. By reason
of the modifications arising out of our different
condition, and those established by American
statutes and by the course of American adjudi-
cation, the common law of America differs
widely in many details from the common law
of England; but the fact that this difference
has not been introduced by violent changes,
but has grown up from the native vigor of the
system, identifies the whole as one jurispru-
dence.
CONFLICT OF LAW is a contraries
or opposition in the laws of States in those
cases where, from their relations to each other,
or to the subject-matter in dispute, the righls
of the parties are liable to be affected by the
187; T. U. P. Charlt. 172; i Ohio, 243; see Cow.
628; 5 Pet. 241 ; 8 Id. 658; 7 Cranch. 32 ; I Wheat.
415 ; 3 Id. 223; i Pall. 67; 2 Id. 297, 384; i Mass. 61 ;
o Pick. 532; 3 Me. 162; 6 Id. 55; 3 Gill. & J. 62;
Sampson's Disc, before the N.'Y. Hist. Soc. ; i Gall.
C. C. 489 ; 3 Conn. 141 ; i Blackf. 205 ; 5 Cow. 628 ; 3
Ala. 362.
LAW.
479
laws of both jurisdictions. An opposition or
inconsistency of domestic laws upon the same
subject.
The laws of every State affect and bind di-
rectly all property, real or personal, situated
within its territory, all contracts made and acts
done, and all persons resident within its juris-
diction, and are supreme within its own limits
by virtue of its own sovereignty. Ambassadors
and other public ministers while in the State to
which they are sent, and members of an army
marching through, or stationed in a friendly
State, are not subject to this rule. Possessing
exclusive authority with the above qualification,
a State may regulate the manner and circum-
stances under which property, whether real or
personal, in possession or in action, within it,
shall be held, transmitted, or transferred, by
sale, barter, or bequest, or recovered, or en-
forced ; the condition, capacity, and state of all
I'/ersons within it; the validity of contracts and
other acts done there; the resulting rights and
duties growing out of these contracts and acts,
and the remedies and modes of administering
justice in all cases.*
Whatever force and obligation the laws of
one country have in another depends upon the
laws and municipal regulations of the latter;
that is to say, upon its own proper jurisprudence
and polity, and upon its own or tacit consent. 8
When a statute or the unwritten law of the
country forbids the recognition of the foreign
law, the latter is of no force whatever. When
both are silent, then the question arises, which
of the conflicting laws is to have effect. Gen-
erally, force and effect will be given by any
State to foreign laws, in cases where, from the
transactions of the parties, they are applicable,
unless they affect injuriously her own citizens,
violate her express enactments, or are contra
bona mores (contrary to good morals).
ASSIGNMENTS AND TRANSFERS. Voluntary
assignments of personal property, valid where
made, will transfer property everywhere/ not
as against citizens of the state of situs attach-
ing prior to the assignees obtaining posses-
sion.* An involuntary assignment by opera-
tion of law, as, under bankrupt or insolvent
laws, will not avail as to attaching creditors in
the place of situation of the property. 11 It
may be a question whether the same rule
C-4 Barb. 522. d-Story Confl. L. g 18, Vattel b. 2, e .
7. % 84, 85 ; Wheat. Int. L. pt. i, c. 2, ? 5. e-Huberus,
lib. i,/. 3,? 2. f-isN. Y. 320; 4 N. J. 162, 270: 17
Penn. St. 91. (-13 Mass. 146 ; 6 Pick. 97 ; 5 Harring.
31, otherwise by 12 Md. 54 ; 4 N. J. 162 ; 18 Penn. St.
331. h-2o Johns. 220 ; 5 N. Y. 320 ; 4 Zabr. 162, 270 ;
6 Pick. 286, 302 ; 2 Hayw. 24 ; 4 M'Cord, 510 ; 5 N.
H. 213 ; 14 Martin, 92 ; 6 Binn. 353 ; 5 Cranch. 289 ; 5
Me. 245 , i Harr. & McH. 236 ; 19 N. Y. 207 ; 32 Miss.
246. i-Dougl. 167. J-6 M. & 8.126; i East. 6; 20
Johns. 262 ; 6 Binn. 363 ; 3 Mass. 517. It-See below.
1-4 Mood. Parl. Gas. 21 ; i Dowl. & L. 614: i Texas,
434; 9 Humph. 546; 2 Barb. Ch. 582; 19 Vt. 182- o
Mo. 3. wi-n Clark & T. Ho. L. 85; i Carr. &'K.
>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. <l-Vattel i, 4, Ch. 2, $ 20-22.
e-7 Pet. 160. f-i W. Bl. 33; see Arch. Cr. PI. (Ed.
1859), 128. y-The accused may demand, as a right, a
prisoner before the court for the purpose of
identifying him as the person charged in the
information or indictment with the commission
of the offence. f 2. In reading the information
or indictment to the accused in order to enable
him fully to understand the charge against him.*
3. In asking the prisoner, " How say you," or
" What say you, P. R. : are you guilty or not
guilty ?" h Thereupon, if the prisoner confesses
the charge, and it appears to the satisfaction of
the court that he fully comprehends the effect
of his plea of " guilty," he at once, or after
hearing such evidence as he may require, -,
after deliberation, pronounces judgment. If,
however, he answers " not guilty," this plea is
entered of record, and forms the issue for trial.
If he fails to answer, or cannot or will not an-
swer, the court orders a plea of "not guilty"
entered in his behalf.
When the offence charged is punishable by
fine only, personal appearance for arraignment
is unnecessary, provided some responsible per-
son appears in his behalf.
ARREST is the taking of a person into cus-
tody that he may be held to answer for a public
offence.
An arrest is the taking, attaching, or seizing
a person or thing, either by a public officer in
execution of the command of some court, or
minister of justice, or by a private person, accord-
ing to the command or permission of the law. 5
An arrest is made by an actual restraint of
the person of the defendant, or by his submis-
sion to the custody of the officers.! The arrest-
ing of an offender and the retaking of him on
fresh pursuit after an escape constitutes but one
effective arrest. k
An officer must inform the defendant that he
acts under the authority of a warrant, arid
must show the warrant if required. 1
If, after notice of intention to arrest the de-
fendant, he either flee or forcibly resist, the
officer may use all necessary means to effect
the arrest. m
To constitute an arrest it is not ordinarily
sufficient that words of arrest be spoken ; there
must be something done by way of actual phys-
ical restraint, though it is enough, if the party
arresting touch the other " even with the end
of his finger." n So, if a bailiff comes into a
room, and tells the defendant he arrests him,
and locks the door, that is an arrest ; for he is
in custody of the officer. So, also, if there
is neither a touching of the person, nor other
force employed in the first instance, yet, if
the party to be arrested submits on being in-
formed of the intended arrest, nothing more is
required, especially when he is in the power
of the officer, to make the arrest complete.?
copy of the information or indictment, but this is rarely
done, he or his counsel being permitted to examine the
original. h-The prisoner may demand a reasonable
time, which, if necessary, is usually granted. i-Law
of Arrests, London, 1742, p. i. J-2 Blackf. 294. fc-2
1-Id. ? 34. Mi-Id. I 35. M-6
temp. Hardw. q8, 301 ;
5 Scott. 561. |-i8 N.
H. 198; 100 Mass. 79, 85.
o rrests, onon, 1742, p. i.
G. & H. p. 397, ? 33. 1-Id. ?
Mod. 173; i Salk. 79. O-Cas.
and see 4 Bingh. (N. R.) 212 ;
4 86
LAW.
Thus: If the bailiff, who has process against
one, says to him, when he is on horseback or
in a coach, " You are my prisoner, I have a
writ against you," upon which he submits,
turns back, or goes with him, though the bailiff
never touched him, yet it is an arrest, because
he submitted to the process ; but if instead of
going with the bailiff, he had gone or fled from
him, it could be no arrest unless the bailiff laid
hold of him.'
Restraint does not alone constitute an arrest;
lis the duty of one seeking to arrest another
to make his purpose known, r unless the cir-
cumstances are such as to render the purpose
obvious; 1 for, where circumstances are such as
to make the intention to apprehend plain to
the mind of him who is to be apprehended, he
need not be told this ; and the arrest will be
legal, and the resistance of the arrested person
illegal, the same as if the purpose had been
announced in words.*
A person making an arrest should not use
unnecessary violence. Though the officer
may lay hands on another in order to serve
him with process/ yet he cannot drag about or
strike the defendant, unless these acts are ren-
dered necessary by his resistance." He may
make use of so much force as is necessary to
accomplish his object, and cannot be made
liable by the defendant, except for wanton
violence. 1 Officers of the law, when engaged
in the performance of their duties, are invested
with a peculiar prerogative. If resisted when
so employed, and the party resisting be killed
in the struggle, such homicide is justifiable.
And, on the other hand, if the party having
such authority, in exercising it properly, happen
to be killed, it will be murder in all who take
part in such resistance,* though there be no
malice. 1 An officer is justified, who, in the
execution of his office, either in a civil or crim-
inal case, kills a person who assaults and re-
sists him. The resistance will justify the officer
in proceeding to the last extremity. So that,
in all cases, whether civil or criminal, where
persons having authority to arrest and imprison,
and using the proper means for that purpose,
are resisted in so doing, they may repel force
with force, and need not give back ; and if the
party making resistance is unavoidably killed
in the struggle, this homicide is justifiable.*
But where a party does not resist, but merely
flies to avoid the arrest, the conduct of the offi-
cer should be cautiously regulated by the nature
of the proceeding. For in civil cases, and also
q-i Salk. (6th Ed.) 79. note referring to B. N. P. fa \
i C. & P. 153 : 3 C. & P. 464 ; M. & M. 244 ; 6 B. &
C. 528 ; 2 C. & P. 503; Bishop Crim. L. Vol. II, <! 49.
r-9 Co. 65, a. S-7 C. & P. 785. t-i Moody, 207 ; and
see i Moody, 378 ; Cro. Car. 183, 537, 538 ; o Co. 65, /'.
n-3 Marring. 568. v-io B. & C. 445 w-7Blackf. 74.
X-24 Me. 158. y-Whart. Horn. 54, 83, 285 : Fost. 273,
408; i Hale, 501 : x East. P. C. 295. -i7Ga. 194. a-
i Hale, 494; i Hawk. P. C. c. 28, % 17, 18; Post. 27 ;
4 Bl. Com. 179; i East. P. C. c. 5, j> 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, <j 600; see
also 2 Dev. 58 ; 25 Ala. 15 ; 19 Texas, 285. If, instead
of flying, he stands and resists, the party having the
right to arrest may press forward in his purpose, even
though the case be not one of felony ; and if not desist-
ing, but still pressing forward, he is obi iced to take the
life of the other, as in self-defence, he will be justified.
30 Ala. 683; 2 Dev. 58 ; 2 Mill. 314; 3 Hairing. 568;
see 10 Wis. 562 ; i East. C. P. 295. d-Bishop Cr. L.
Vol. II, g 600. e-Id. ? 650. f-i.2Cush.246. g-s Har-
ring. 496. ll-i Moody, 132. 1-42 Me. 384 ; 5 Vt. 588.
1-2 Ired. 50. k-a Blackf. 294. l-i Grant, 187 ; i Chitty
Cr. ^,
LAW.
arrest Mich person; and he will not be liable,
either in a. civil or criminal prosecution, should
the suspicion prove unfounded. But if the
offence has not in fact been committed by any
one, he may be compelled, on a civil suit, to
pay damages to the party arrested, however
strong or reasonable may have been his suspi-
cions. And these rules extend to all felonies,
even to petit larceny.
When a crime is a felony, the law casts upon
all persons present the duty to make the arrest.
It is also a duty of precisely the same nature
to interfere to prevent the commission of a
felony or treason, and this duty carries with it
the right ; consequently, though an attempt to
commit a felony is a misdemeanor, and not a
felony, yet if a man finds another attempting to
Commit a felony, he may arrest him.P
In misdemeanors, a private person, or an
officer acting without a warrant, cannot make
an arrest for a misdemeanor committed on an
occasion which has already past. - It is the
duty of every good citizen to endeavor to sup-
press a riot; and when he finds a mistaken
multitude engaging in treasonable practices, to
the subversion of all peace and good order, he
is protected by law in coming forward with
other well-disposed characters to repel them by
force.' Affrays may be suppressed by any
private person present, who is justifiable in
endeavoring to part the combatants, whatever
consequence may ensue."
By officers of the law. Whenever the cir-
cumstances of a case would justify a private
person in making an arrest, without a warrant,
they will equally justify a constable, sheriff, or
watchman.* Where an officer, authorized by
statute to make arrests without warrant, finds a
person in the act of committing a criminal
offence, it is not necessary to the lawfulness of
the attempt to arrest him to first inform him of
the charge upon which the attempted arrest is
'made, where the officer and the cause of arrest
are known to the offender. But for a past
offence, below a felony, officers of the peace
cannot, any more than a private person, arrest
the offenders without a warrant.
When a magistrate is commanded by statute
10 keep the peace, by construction, he is au-
thorized to call upon his officers, and upon
private individuals, for such assistance as the
nature of his office and the particular circum-
stances render it incumbent on them to per-
form ; and such magistrate may lawfully, by
word of mouth, authorize any one to arrest an-
other, who shall be guilty of any actual breach
of the peace in his presence, v or shall be en-
gaged ia a riot in his presence.* If an offence
in-Cald. 291 ; 3 Jones, 433; 3 Wend. 350; 6 Binn.
316; 8 S. &R.47; 2 Root, 171 ; 12 Co. 90; 12 Ga.
293 ; 2 Dev. 58 ; 3 Vroom, 70. n-3 Wend. 350 ; 3 Binn.
316; 9 Port. 195 ; 2 Selw. N. P. 935 : 8 C. & P. 522 ; 2
Moore & P. 500; 5 Bingh. 354; 2 C. & P. 565. Yet,
possibly, such a matter may be shown in the mitigation
of damages. 2 Stew. & Port. 195 ; Minor, 407. 0-3
Parker C. C. 240. p-i Moody, 93; 2 B. & P. 260; 3
Vroom, 70. Q-3 B. & Ad. 798 ; see 4 Scott 'N. R.) 54 ;
j Powl. (N. S.) 216 ; 2 C. & P. 585. r-i Yeates, 419,
is committed in the court of a mag 1 ,trte, he
may verbally authorize the attending officer to
take the offender into custody; no warrant being
necessary in the first instance.* Likewise, if
an arrest is made without a warrant, in a case
where such an arrest is lawful, and the offender
is brought before the magistrate, the latter may
take jurisdiction and proceed to judgment
without issuing a warrant of arrest. " Why
issue a warrant for the apprehension of a party
already in custody ?"* But a written complaint
(under oath) against the party, setting out his
offence, is as necessary in such a case as in any
other. 1
Sheriffs* and constables are ex-officio conser-
vators of the peace; so, in a measure, are
watchmen and other like officers.
What is a reasonable and proper cause to
suspect the person who is to be arrested is a
question of law ; and it is a question of fact
whether or not the circumstances constituting
such cause exist ; and on the trial of an officer
at the suit of the arrested party, the question
is ordinarily to be submitted to the jury as a
mixed one of law and fact. b A proclama-
tion by the governor, published in pursuance
of law, announcing the commission of a felony,
is a sufficient justification for a peace officer
who arrests the suspected felon. A watchman
and beadles have authority at common law to
arrest and detain in prison, for examination,
persons walking the streets at night, whom
there is reasonable ground to suspect of felony,
although there is no proof of a felony having
been committed. 4
From time immemorial constables and
watchmen had authority, without warrant, to
arrest those whom they saw engaged in an
affray or breach of the peace, and to detain
them until they should find proper sureties. 9
And the officers of government have authority,
derived from the general rights of the govern-
ment, without any statute whatever on the
subject, to exercise all necessary force for the
prevention of crime, either by the arrest of in-
dividuals, or by the seizure and detention of
the instruments of crime ; f and this applies to
sheriffs, constables, and the like.
Officers 1 power to call assistance. The chief
difference between the power and duty of
an officer and a private person, in respect to
such arrest, is, that the former has the greater
authority to demand assistance of others, and
is liable to a severer fine for any neglect of this
kind, and has no sure way to discharge him-
self of the arrest of any person apprehended
by him for felony, without bringing him be-
fore a magistrate in order to be examined ;
421. Assisting to quell a treasonable riot is lawful, i W.
Bl. 47. S-i Bl. Comm. 145. t-2 Hawk. P. C. c. 13, jj
i. 11-19 Ohio St. 248. v-n Gray, 194. w-2 Hawk.
P. C. c. 13, g 14. x-ig III. 242; see Id. p. 245 ; and
see 12 Ind. 369 ; 8 Conn. 375. y-6 Humph. 236 ; <9
111. 242, 245. Z-4 Conn. 107. a-io Johns. 85. b-2
Moore & P. 590; 5 Bingh. 354. c-6 Humph. 53. d-3
Taunt. 14 ; and see 14 Gray, 65. e-2 Nott. & M'Cord,
475, 478; 8 S. & R. 47; 5 Harriug. 505. f-a? Y(. o;
and see 36 J*. H. 2^0,
4 88
LAW.
whereas, a private person, having made such
an arrest, needs only to deliver his prisoner
into the hands of the constable.* Accordingly,
it is in the power of an officer making an
arrest, though without a warrant, to call in the
aid of the bystanders for the sheriff may call
out the power of the county, and the officer
may command the inhabitants of his precinct.
And this extends not merely to the arrest, but
equally to the detaining of the prisoner after
the arrest is made. If any one obstructs the
officer in the performance of these duties, he
may at once be taken into custody.
ARREST UNDER A WARRANT. Where
a warrant in due form is put into the hand
of an officer, to whom it is addressed, he
is justified in executing it, if the magistrate
who issued it had jurisdiction over the cause,
even though it was improperly or unlawfully
obtained. But it is otherwise if the warrant is
illegal on its face, or if the magistrate had no
jurisdiction; which question of jurisdiction the
efficer must decide at his peril. h And if, in a
civil case, an arrest is made after the process is
returnable, the officer becomes thereby a tres-
passer. 1 Where process under which an officer
makes an arrest is voidable, by reason of some
irregularity or mistake, he is justified ; though
lie is not when it is void.i
One who is called upon to assist an officer in
making an arrest under warrant, and who
acts in good faith, is justified, though the pro-
cess is not valid to the extent of justifying the
officer himself; for if all those summoned had
to examine and judge the legality of the pro-
cess, and then to act upon their own responsi-
bility, this necessary power in the officer would,
in practice, be paralyzed to a great degree. k
The warrant must be executed by a public
officer (as the sheriff or constable of the county,
marshal of any incorporated city), or some
person specially appointed, in writing, by the
court or magistrate. 1
Form of Special Appointment on tbe
Warrant.
I hereby appoint S. A. to execute the within
writ. (Signature, seal, and official title. ]
The warrant must be executed by the officer
or person to whoiti it is directed and delivered.
And in all cases where an arrest is made by
virtue of a warrant, (he warrant, if demanded,
at least should be produced." 1 Where the offi-
cer is not known to be such, he must show his
authority, his warrant, before making the ar-
rest." If the officer permits the prisoner to
take the warrant into his hands to peruse, and
the latter refuses to return it, he may use "just
If -2 Hawk. P. C. c. 13, \ 7. h-i Conn. 40; 6 Eng.
642 ; i Id. 461 ; 24 Ala. 672 ; 3 Dev. 468 ; 5 Day, 506,
508 ; 6 Cow. 456 : 13 Mass. 286; 3 Caines, 267; 10
Conn. 514; 5 Ired. 72 ; 8 Met. 324 ; i Moody, 281 ; 7
Hill (N. Y.) 39 ; a Fla. 171 ; 4 E. D. Smith, 445 ; Breese
18; 37 Me. 130; i Foster, 262; 25 111. 70. 1-3 Day. i
6 Mass. 20. j-4 Mass. 232, 234; 13 Id. 324, 286, 288
14 Id. 210 ; and see 17 Ga. 194 ; I Chitty Cr. L. 60, 61
k-2j. J. Marsh. 44. 1-M. & M. 107; 3 C. & P. 31
Bishop Cr. L. i Vol. I, g 307; Vol. II. g? 653, 654. 66=;,
727, 1228. m-See GENERAL STATUTES. 11-8 T. R.
187 ; and see i Cbitty Cr. I*. 4* ; * Hayes' D>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 <By
the civil law the punishment was by death. 8
The consequences of castration, when com-
plete, are impotence and sterility.*
CHALLENGE is a request by one person to an-
other to fight a duel. It may be oral or written. 11
Sending a challenge is a high offence at common
law, and indictable as tending to a breach of
the peace. T He who carries a challenge is also
punishable by indictment." In most States this
practice is punishable by special laws. 1
CHANCE-MEDLEY is a sudden affray; this
word is sometimes applied to any kind of
homicide by misadventure, but in strictness is
applicable to such killing only as happens in
defending one's self.'
CHARACTER. See title EVIDENCE, ante.
CHARGE. See ACCUSATION; BILL OF IN-
DICTMENT, above.
CHASTITY is that virtue which prevents the
unlawful commerce of the sexes. Sending a
letter to a married woman, soliciting her to
commit adultery, is an indictable offence. 1 So-
i-Com. Dig. Indictment; i Hal. PI. Cr. 632 ; i Chitty
Cr. L. 243 ; Co. Litt. 137. |-i Russ. Cr. Cas. 686; i
East. PI. Cr. 448. It-a Bishop Cr. L. g 699 ; i Mood.
Cr. Cas. 14 ; i Dearsl. Cr. Cas. 421 ; Coxe, 439. l-i
Leach Cr. Cas. 320. m-i Leach Cr. Cas. 222, n. n-
Id. O-i Leach Cr. Cas. 236. p-2 East. PI. Cr. 536; i
Leach Cr. Cas. ( 4 th Ed.) 236. 321 ; i Hall PI. Cr. 508 ;
i Ry. & M. Cr. Cas. 14 ; 4 Sharsw. Bl. Comra. 231 ; 2
Russ. Cr. 96. q-2 Bishop. Cr. 1.. $ 842, 847. r-Co. 3d
Inst. 118. s-Dig. 48, 8, 4, 2. t-BeckMed. Jur. ja. u-
6 Blackf. so. v-Hawk. PI. Cr. B. i, Ch. 3, 3 ; 3 East.
581 ; 6 Id. 464 ; t Dana. 524 ; i South. 40 ; a M'Cord,
334; i Const. 107; t Hawks. 487; 2 Ala. 506; 6 Blackf.
licitation of chastity is in some States an in-
dictable offence. Words charging a woman
with a violation of chastity are actionable in
themselves, because they charge her with a
crime punishable by law, and of a character
calculated to degrade, disgrace, and exclude
her from society.' A woman may defend her
chastity by killing her assailant. See SELF-
DEFENCE, below.
CHEAT is deceitful practices in defrauding
or endeavoring to defraud another of his
known right, by some wilful device, contrary
to the plain rules of commun honesty. 1 " It is
the fraudulent obtaining of the property of an-
other by any deceitful and illegal practice or
token (short of felony) which affects or may
affect the public. In order to constitute a
cheat or indictable fraud, there must be a
prejudice or injury received-, and such injury
must affect the public welfare, or have a tend-
ency so to do. c A cheat, in order to be in-
dictable at common law, must have been prob-
able in its nature, by being calculated to de-
fraud numbers, or to deceive or injure the
public in general, or by affecting the public
trade or revenue, the public health, or being in
fraud of public justice, etc. And yet cheats,
apparently private, have been held to be in-
dictable at common law, it appearing upon ex-
amination to involve considerations of a public
nature, or founded in conspiracy or by forgery.
Thus, it is not (unless so provided by statute)
indictable for a man to obtain goods by false
verbal representations of his credit in society,
and of his ability to pay for them, 4 or to
violate his contract, however fraudulently it be
broken, 6 or fraudulently to deliver a less quan-
tity of amber than was contracted for and
represented/ or to receive good barley to
grind, and to return instead a musty mixture
of barley and oatmeal.*
To cheat a man of his money or goods, by
using false weights or false measures, has
been indictable at common law from time im-
memorial.*
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. 1 The command of a
20 ; 9 Leigh, 603 ; 3 Rog. 133 ; 3 Wheeler Cr. Cas. 245.
W-3 Cranch C. C. 178. X-2 Bishop Cr. L. 270-273.
y-4 Bl. Comm. 184. -7 Conn. 266; nee 14 Penn. St.
226. a-7 Conn. 707; 8 Pick. 384 ; 5 Gray, 2, 5; a N.
H. 194 ; Heard Lib. & Sland. ? 36. b-Hawkins PI. Cr.
B. 2, Ch. 23, \ i. c-2 East. PI. Cr. 817; i Gabb. Cr.
L. 199 ; i Deacon Cr. L. 225. d-6 Mass. 72. e-i Maes.
137. f-2 Burr. 1125 ; I W. Bl. 273^ K-4 M. & S. 314.
h-i Gabbett Cr. L. 201 ; 3 Greenl. Ev.l 86 ; 6 Mass. 72.
i-i East. PI. Cr. 225 ; 5 Blackf. 73 ; 2 Dall. 86 ; 5 Q. B.
279 ; i Dav. & M. 367. The law upon the responsibility
of married women for crime is fully stated in i Bennett
&H. Lead. Cr. Cas. 76-^7..
494
LAW.
superior to an inferior ,J of a parent to a child, k
or a master to his servant, or a principal to his
agent, 1 may amount to coercion.
As to persons acting under the constraint of
superior power, and, therefore, not criminally
amenable, the principal case is that of a mar-
ried woman, with respect to whom the law
recognizes certain presumptions : thus, if a wife
commits a felony, other than treason or homi-
cide, or, perhaps, highway robbery, in company
with her husband, the law presumes that she
acted under his coercion, and, consequently,
without any guilty intent, unless the fact of
non-coercion is distinctly proved. This pre-
sumption appears, on some occasions, to have
been conclusive, and is still practically regarded
in no very different light, especially where
(he crime is of a flagrant character; but the
better opinion seems to be that in every case
the presumption may be rebutted by positive
proof that the woman acted as a free agent. *
And a married woman cannot be convicted
under any circumstances as a receiver of stolen
goods, when the property has been taken by
her husband, and given to her by him."
Whether the doctrine of coercion extends to
any misdemeanor may admit of some doubt ;
but the better opinion seems to be that, pro-
vided the misdemeanor is of a serious nature,
as, for example, the uttering of base coin, the
wife will be protected in like manner as in
cases of felony; although it has been distinctly
held that the protection does not extend to
assaults and batteries, or to the offence of keep-
ing a brothel. It is probable that in all inferior
misdemeanors this presumption, if admitted at
all, would be held liable to be defeated by far
less stringent evidence of the wife's active co-
operation than would suffice in cases of felony.?
For the law upon the responsibility of married
women for crime. 1
COMMON SCOLD is one who by practice of
frequent scolding disturbs the neighborhood.'
The offence of being a common scold is cog-
nizable at common law. It is a particular form
of nuisance, and was punishable by the duck-
ing-stool at common law ; but this punishment
is substituted by fine and imprisonment. r
COMPLAINT is an accusation made to a
proper officer that some person, whether known
or unknown, has been guilty of a designated
offence, with an offer to prove the fact, and a
request that the offender may be punished. It
is also a technical term, descriptive of pro-
ceedings before a magistrate. 1 To have a legal
effect the complaint must be supported by such
evidence as shows that an offence has been
J-i Wash. C. C. 209, 220; 12 Met. (Mass.) 56; i
Bfatch. C. C. 549; 13 How. 115. h-Broom Max. (2d
Ed.) n. 1-13 Mo. 246; 14 Id. 137, 340 ; 3 Cush. 279;
ii Met. (Mass.) 66 ; 5 Miss. 304 ; 14 Ala. 365 ; 22 vt.
32 : 2 Denio, 341 ; 14 Johns. 119. in-See 2 Carr. & K.
887, 901 ; Jebb. Cr. Cas. 93. Jt-See Jebb. Cr. Cas. 93 ;
i Mood. Cr. Cas. 1143. n-t Dears!. Cr. Cas. 184; i
Denio Cr. Cas. 306. 0-2 Lew. Cr. Cas. 229 ; 8 C. & P.
10,541; 2 Mood. Cr. Cas. 384; 10 Mod. 63; i Met.
( Mass.) 151 ; 10 Mass. 152. |>-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<M
LAW.
intent with distinctness and precision, and to
support the allegations with proof. On the
other hand, if the offence does not rest merely
in tendency or in attempt to do a certain act
with a wicked purpose, but consists in doing
an unlawful or criminal act, the evil intention
will be presumed, and need not be alleged, or,
if alleged, it is a mere formal averment which
need not be proved. 8
Proof of intention may be of external and
risible acts and conduct from which the jury
may infer the fact/ or it may be by proof of an
act committed ; as in the case of burglary with
intent to steal ; proof of burglary and stealing
is conclusive.*
When a man intending one wrong fails, and
accidentally commits another, he will, except
where the particular intent is a substantive part
of the crime, be held to have intended the act
he did commit. h
JAIL. COUNTY JAIL is a place provided for
the confinement of persons arrested upon civil
or criminal process, and held in custody of the
sheriff. It is the common place of confine-
ment for persons confined for contempt of court,
witnesses, and persons without bail awaiting
trial, and those convicted of lesser offences.
It is generally inhabited by the sheriff or
keeper and his family, and is an inhabited
dwelling-house within the statutes against
arson. 1
JEOPARDY is exposure to danger, death, haz-
ard, or injury. This is the situation of a pris-
oner when a trial jury is impanelled and sworn
to try his case upon a valid indictment. Such
ii jury has been charged with his deliverance.^
And should the prosecution be abandoned at
his stage of the case, and the jury be dis-
fharged, or otherwise, the prisoner cannot be
again put upon his trial by the same jurisdic-
tion, unless this privilege be waived by the de-
fendant. 11
JUSTIFIABLE HOMICIDE. See HOMICIDE,
above.
KIDNAPPING is the act of stealing or forcible
abduction of a human being from his own
home or country. 11 It includes false imprison-
ment. 1 A carrying away is not essential. 1 " This
was a capital offence by the Jewish law ; and
is a highly penal offence in all the States. See
ABDUCTION, above.
KNOWLEDGE is the power of knowing ; it is
a perception of that which exists ; cognizance
of truth and fact ; information. Many acts are
perfectly innocent when the party performing
?-Bigelow. C. J. ; 2 Allen, 180; see i Stark. C. & P.
165 ; i Chitty Cr. L. 233 ; 6 East. 474 ; 5 Cush. 306. f-
8 Co. 146. g-i Bishop Cr. L. $ 250, 251 ; 5 C. & P.
510 ; 7 Id. 518 ; 9 Id. 729 ; 2 M. & R. Cr. Cas. 40. h-
Eden. Pen. L. (36 Ed.) 229; 13 Wend. 159; 21 Pick.
SIS ; 2 Met. (Mass. ) 329 ; i Gall. C. C. 624 .- I Carr. &
K. 746 ; Roscoe Cr. Ev. 272. i-2 W. Bl. 682 ; I Leach
Cr. Cas. (4 Ed.) 69; 2 East. PI. Cr. 1020; 2 Cox Cr.
Cas. 65 ; 18 Johns. 115; 4 Coll. 109; 4 Leigh, 683. j-
1 Bail. 655 : 7 Blackf. 101 ; i Gray, 490 ; 38 Me. 574 ; 8
S. & R. 586; 23 Penn. St. 12; 12 Vt. 93 ; i Bishop Cr.
L. J66o. li -6 Cush. 560; 37 Me. 156 : 2 Hawks. 443;
2 Barb. 427 ; 4 Dev. 305 ; 16 Miss. 587 : j Bishop Cr.
L. 1 6;, et sff, l-a Bishop Cr. L. 67 . ui-8 N. H.
them is not aware of certain circumstances at-
tending them : for example, a man may pass a
counterfeit note, and be guiltless, if he did not
know it was so; he may receive stolen goods,
if he were not aware of the fact that they were
stolen. In these, and like cases, it is the guilty
knowledge which makes the crime. Such
guilty knowledge is made by the statute a con-
stituent part of the offence ; and, therefore, it
must be averred and proved as such. But it is,
in general, true, and may be considered as a
rule almost necessary to the restraint and pun-
ishment of crimes, that when a man does that
which, by the common law or by statute, is un-
lawful, and, in pursuing his criminal purpose,
does that which constitutes another and differ-
ent offence, he shall be held responsible for all
the legal consequences of such criminal act.
When a man, without justifiable cause, intends
to wound or maim another, and in doing it,
kills him, it is murder, though he had no inten-
tion to take life. But, in general, such bad
motive or criminal will and purpose that dis-
position of the mind and heart which is des-
ignated by the generic and significant term
"malice" is implied from the criminal act
itself. But if a man does an act which would
be otherwise criminal, through mistake or acci-
dent, or by force or the compulsion of others,
in which his own will and mind did not insti-
gate him to the act or concur in it, it is a mat-
ter of defence, to be averred and proved on
his part, if it does not rise out of the circum-
stances of the case adduced on the part of the
prosecution.
LARCENY is the unlawful or felonious taking
and carrying away by one person of the personal
goods and chattels of another with intent to
convert them to his own use, and without the
consent of the owner.? Larceny is either
grand or petit. See GRAND LARCENY, above.
The property of the owner taken may be either
general' or special. 1 " There must be a taking
against the consent of the owner," and the
taking will not be larceny if consent be given,
though obtained by fraud.* When the posses-
sion of an article is intrusted to a person who
carries it away and appropriates it, this is no
larceny;" but where the custody is merely
parted with, such misappropriation is a larceny. T
The taking must be in the county where the
criminal is to be tried," but when the taking is
in the county or State, and the thief is caught
with the stolen property in another county than
that where the theft was committed, he may be
550. B-4 Bl. Comm. 219. O-Per Shaw, C. J. ; 2 Mfit.
(Mass.)io2. As to proof of guilty knowledge, see i
Hen. & B. Lead. Cr. Cas. 185-191. i>-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.
<i . 3 B. & P. 113 ; 3 C. Rob. Adm. it 4 Id. 107 , i
Hage. Adui. 103, 104; i Pet. C. C. 159, 2 Cranch. 64.
11 -i KeiitComm. 7$; 3B.&P. 113 ; i C. Rob. Adm. 249.
LAW.
to the law of his actual domicil at the time of
his death; the principle applies equally to
cases of voluntary transfer, of intestacy, and
of testaments.P
Wills are to be governed by the law of the
domicil as to the capacity of the parties,' and
as to their validity and effect in relation to the
transfer of personal property , r but by the law
of the place where the thing is situated as to
the transfer of real property. 8 The forms and
solemnities of the place of domicil must be ob-
served.* The local law is to determine the
character of property." The interpretation of
a will is to be according to the law of the place
of actual domicil. T The succession to the per-
sonal property of an intestate is governed ex-
clusively by the law of his actual domicil at
the time of his death. w This includes the
ascertainment of the person who is to be their
heir. 1 The question as to whether debts are to
be paid by the administrator from the personalty
or realty is to be decided by the law of his
domicil.7
An assignment of property for the benefit of
creditors, valid by the law of the domicil, is
generally recognized as valid everywhere, 1 in
the absence of a positive statute to the con-
trary ; but not to the injury of citizens of the
foreign state in which property is situated. b
But a compulsory assignment by force of statute
is not of extra territorial operation. Distribu-
tion of the effects of insolvent or bankrupt
debtors is to be made according to the law of
the domicil, subject to the same qualifications." 1
EX POST FACTO LAW.
Ex post facto is, after the act. An ex pvst
facto law is a statute which would render an
act punishable in a manner in which it was not
punishable when it was committed.* A law
made to punish acts committed before the
existence of such law, and which had not
been declared crimes by preceding laws. f By
the Constitution of the United Stales Congress
is forbidden to pass ex post facto laws.' And
by Section X., Subdiv. I, of the same instru-
ment, as well as by our own constitution, a
similar restriction is placed upon the State
0-2 Kent Comm. 429; 8 Sim. Ch. 310; 3 Story C.
C. 755; ii Miss. 617; i Speers Eq. 3; 4 Bradf. SUIT.
127; 15 N. H. 137. p-s B. & C. 451 ; 3 Story C. C.
755 : 3 Hagg. Eccl. 273 ; 3 Curt. Eccl. 468; i Binn. 336;
Q Pet. 503 ; Story Confl. L. j> 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.
<l-I)ean Med. Jur. 426, ttsey. e-Syncope is a fainting
or swooning ; a diminution, or interruption of the motion
of the heart, and of respiration, accompanied with a sus-
pension of the action of the brain, and a temporary loss
if sensation, volition, and other faculties, Webst. Diet.
body, consisting of a large head, short neck,
and plethoric frame, from the posture in which
the body is found, and the appearances revealed
by dissection, particularly in the head.
Death by asphyxia is more important to be
understood. It is limited to cases where the
heart's action is made to cease through the in-
terruption of the respiration, or breathing. It
is accomplished by all the possible modes of
excluding atmospheric air from the lungs. The
appearance in the body indicating death by as-
phyxia are: violent discolorations, eyes promi-
nent, firm, and brilliant ; cadaveric rigidity
early and well marked ; venous system of the
brain full of blood; lungs distended with thick,
dark-colored blood; liver, spleen, and kidneys
gorged; right cavities of the heart distended,
the left almost empty.
Death by burning presents a narrow white
line surrounding the burnt spot ; external to
that, one of a deep-red tint, running by degrees
into a diffused redness. This is succeeded in
a few minutes by blisters filled with serum.
Death by cold leaves few traces in the system.
Pale surface, general congestion of internal
organs, sometimes effused serum in the ventri-
cles of the brain.
Death by drowning is caused by asphyxia
from suffocation by nervous, or syncopal as-
pliyxia, or, by asphyxia from cerebral conges-
tion. In the first, besides other indications of
asphyxia, the face is pale or violet, a frothy
foam at the mouth, froth in the larynx, trachea,
and bronchi, water in the trachea, and some-
times in the ramifications of the bronchia, and
also in the stomach. In the second, the face
and skin are pale, the trachea empty, lungs and
brain natural, and no water in the stomach. In
the third, the usual indications of death by apo-
plexy are found on examination of the brain.
Death by hanging is produced by asphyxia
suspending respiration by compressing the
larynx, by apoplexy pressing upon the veins
and preventing the returning of blood from the
head, by fracture of the cervical vertebrae, lac-
eration of trachea or larynx, or rupture of the
ligaments of the neck, or by compressing the
nerves of the neck. The signs and indications
depend upon the cause of death. Among these
are : face livid and swollen, lips distorted, eye-
lids swollen, eyes red and projecting, tongue
enlarged, livid, compressed, froth about the
lips and nostrils, a deep ecchymosed marked
cord about the neck, sometimes ecchymosed
patches on different parts of the body, fingers
contracted or clenched, and the body retaining
its animal heat longer than in other modes of
death.
Death by lightning usually exhibits a contused
or lacerated wound where the electric fluid cn-
f- Apoplexy is an abolition of sense and voluntary motion,
from suspension of the functions of the cerebrum. The
cerebrum is the front and larger part of the brain. Id.
(BT-Asphyxia is apparent death, or suspended animation,
particularly from suffocation or drowning, or the inhala-
tion of irrespirable gases ; applied also to the collapsed
state in cholera, with want of pulse, Id.
LAW.
521
tered and passed out. Sometimes an extensive
ecchymosis appears, 11 more commonly on the
back, along the course of the spinal marrow.
Death by strangulation presents much the
same appearance as death by hanging, the mark
of the cord being lower on the neck, more
horizontal, and plainer and more distinctly
ecchymosed.
Death by starvation produces general ema-
ciation ; eyes and cheeks sunken ; bones pro-
jecting; face pale and ghastly; eyes red and
open; skin, mouth, and fauces dry; gall blad-
der large and distended ; body exhaling a fetid
odor; heart, lungs, and large vessels collapsed;
early commencement of putrefactive process.
DELIVERY. See BIRTH, above.
DELUSION is a diseased state of the mind, in
which persons believe things to exist which
exist only, or in the degree they are conceived
of only, in their own imaginations, with a per-
suasion so fixed and firm that neither evidence
nor argument can convince them to the con-
trary. The individual is, of course, insane.
For example, should a parent unjustly persist,
without the least ground, in attributing to his
daughter a course of vice, and use her with
uniform unkindness, there not being the slight-
est pretence or color of reason for the supposi-
tion, a just inference of insanity or delusion
would arise in the minds of a jury; because a
supposition long entertained and persisted in,
after argument to the contrary, and against the
natural affections of a parent, suggests that he
must labor under some morbid mental delusion. 1
DEMENTIA is a mild form of insanity char-
acterized by mental weakness and decrepitude,
and a total inability to reason correctly or in-
correctly. The mind dwells only in the past,
and the thoughts succeed one another without
any obvious bond of association. Delusions,
if they exist, are transitory, and leave no perma-
nent impression ; and for everything recent the
memory is exceedingly weak. In mania, the
action of the mind is marked by force, hurry,
and intensity ; in dementia, by slowness and
weakness. It is mostly the sequel of mania,
of which, in fact, it is the natural termination.
Occasionally it occurs in an acute form in
young subjects; and here only it is curable.
In old men, in whom it often occurs, it is called
senile dementia, and it indicates the breaking
down of the mental powers in advance of the
bodily decay. It is this form of dementia only
which gives rise to litigation ; for in the others
the incompetency is too patent to admit of
question. It cannot be described by any posi-
tive characters, because it differs in fhe different
stages of its progress, varying from simple
lapse of memory to complete inability to recog-
nize persons or things. And it must be borne
in mind that often the mental infirmity is not
so serious as might be supposed at first sight.
Many an old man who seems to be scarcely
conscious of what is passing around him, and
ll-An appearance of livid spots on the skin, occa-
sioned by the Hood being forced out of its proper vessels.
f-ConaoUy, Insan. 384 ; Ray Med. Jur. PreJ. Views, '$
is guilty of frequent breaches of decorum, needs
only to have his attention aroused to a matter
in which he is deeply interested, to show no
lack of vigor or acuteness. In other words,
the mind may be damaged superficially, while
it may be sound at the core. And therefore it
is that one may be quite oblivious of names and
dates, while comprehending perfectly well his
relations to others and the interests in which
he was concerned. It follows that the im-
pressions made upon casual or ignorant ob-
servers in regard to the mental condition are
of far less value than those made upon persons
who have been well acquainted with his habits
and have had occasion to test the vigor of his
faculties.
The wills of old men are often contested on
the ground of senile dementia, and the conflict-
ing testimony of observers, the proofs of foreign
influence, and the indications of mental ca-
pacity all combine to render it no easy task to
arrive at a satisfactory conclusion. The only
general rule of much practical value is that
competency must be always measured, not by
any fancied standard of intellect, but solely by
the requirements of the act in question. A
small and familiar matter would require less
mental power than one complicated in its de-
tails and somewhat new to the testator's experi-
ence. Less capacity would be necessary to
distribute an estate between a wife and child
than between a multitude of relatives with un-
equal claims upon his bounty. Such is the
principle ; and the ends of justice cannot be
better served than by its correct and faithful
application. Of course, there will always be
more or less difficulty; but generally, by dis-
carding all legal and metaphysical subtleties
and following the leading of common sense, it
will be satisfactorily surmounted.
The legal principles by which the courts are
governed are not essentially different whether
the mental incapacity proceed from dementia
or mania. If the will coincides with the pre-
viously expressed wishes of the testator, if it
recognizes the claims of those who stood in
near relation to him, if it shows no indications
of undue influence if, in short, it is a rational
act rationally done it will be established, and
very properly so, though there may have been
considerable impairment of mind.J See IN-
SANITY, below.
DRUNKENNESS is the condition of a person
who is under the immediate influence of in-
toxicating liquors.
This condition presents various degrees of
intensity, ranging from a simple exhilaration to
a state of utter unconsciousness and insensi
bility. In the popular phrase, the term drunk
enness is applied only to those degrees of it in
which the mind is manifestly disturbed in its
operations. In the earlier stages it frequently
happens that the mind is not only not disturbed,
20, 2 ; i Powell Dev. Jarman ed. 130, n. ; Shelford
Lun. 296 ; 3 Add. Eccl. 70, 90, 180 ; i Hagg. Eccl. 27 ;
2 Bouvier Inst. nn. 2104-2110. J-2 Phil. Eccl. 440 3
Wash. C.C. 580; 4 Id. 268,
522
LAW.
but acts with extraordinary clearness, prompti-
tude, and vigor. In the latter the thoughts
obviously succeed one another without much
relevance or coherence, the perceptive faculties
are active, but the impressions are miscon-
ceived, as if they passed through a distorting
medium, and the reflective powers cease to act
with any degree of efficiency. Some of the
rntermediate stages may be easily recognized;
but it is not always possible to fix upon the
exact moment when they succeed one another.
In some persons peculiarly constituted, a fit of
intoxication presents few if any of these suc-
cessive stages, and the mind rapidly loses its
self-control, and for the time is actually fren-
zied, as if in a maniacal paroxysm, though the
amount of the drink may be comparatively
small. The same phenomenon is observed
sometimes in persons who have had some in-
jury of the head, who are deprived of their
reason by the slightest indulgence.
The habitual abuse of intoxicating drinks is
usually followed by a pathological condition of
the brain, which is manifested by a degree of
intellectual obtuseness, and some insensibility
to moral distinctions once readily discerned.
The mind is more exposed to the force of
foreign influences, and more readily induced to
regard things in the light to which others have
directed them. In others it produces a perma-
nent mental derangement, which, if the person
continues to indulge, is easily mistaken by
common observers for the immediate effects of
hard drinking. These two results the me-
diate and the immediate effects of drinking
may co-exist ; but it is no less necessary to dis-
tinguish them from each other, because their
legal consequences may be very different.
Moved by the latter, a person goes into the
street and abuses or assaults his neighbors;
moved by the former, the same person makes
his will, and cuts off those who have the
strongest claims upon his bounty with a shil-
ling. In a judicial investigation, one class of
witnesses will attribute all his extravagances to
drink, while another will see nothing in them
but the effect of insanity. The medical jurist
should not be misled by either party, but be
able to refer each particular act to its proper
source.
Another remarkable form of drunkenness is
called dipsomania. \ Rather suddenly, and
perhaps without much preliminary indulgence,
a person manifests an insatiable thirst for strong
drink, which no considerations of propriety or
prudence can induce him to control. He
generally retires to some secluded place, and
there, during a period of a few days or weeks,
he swallows enormous quantities of liquor,
until his stomach refuses to bear any more.
Vomiting succeeds, followed by sickness, de-
pression, and disgust for all intoxicating drinks.
k-Esquirol, Mai. Men. ii. 73 ; Marc, de la Folie, ii.
605; Ray, Med. Jur. 497; Macnish, Anatomy of Drunk-
enness, chap. 14. I-i Ves. Ch. 19; 18 Id. 12. m-
Shelford Lun. 274, 304. n-Co. Litt. 247, a. o-i Story
El- $ J # 2 - J>-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. <i-Story Confl.
L. $ 103 ; i Grant Cas. 51. The question of disability
to make a contract on account of infancy is to be decided
by. the lex loci. 3 Esp. 163, 597; 17 Mart. 597; 8
Johns. 189 ; i Grant. Cas. 51 : 2 Kent Comm. 233. So,
also, as to contracts made by married women. Alleyn,
72 ; 8 Johns. 189 ; 13 La. 177 ; 5 East. 31 ; 2 Parsons'
Contr. 84, in. C-Story Confl L. {$91, 92, 104, 620-
625; 2 Kent Comm. 459. f-i P. Wms. 395: j Pet. C.
C. 225; Story Confl. L. ? 307. g-i Pick. 81 ; 6 Id.
286; i Paige Ch. 220; a Ohio, 124 ; I H. Bl. 665; a
Rose. Bank. 29 : 2 Ves. & B. Ch. 130; 5 B. & C. 438 :
6 Madd. Ch. 16 ;. i Young & C. 114 ; 7 Cranch, 115 ; 10
Wheat. 192, 465; 6 Id. 597; 4 Cow. 510, 527; 4 Johns.
Ch. 460 ; i Gill. 280 ; 6 Binn. 559 ; Story Confl". L. \\
365, 428. h-i2 Eng. L. & Eq. 206. i-i Bouv. Inst. n.
116. J-The fullest account which has yet been given of
the reporters, their chronological order, merits, history,
and the volumes, is Wallace' " The Reporters Chron*
logically Arrangd."
LAW.
537
Impairing contracts. The right to pass retro-
spective laws, with the above exception, exists
in the several States, according to their own
institutions; and they become obligatory if
/lot prohibited by such constitutions. 11
STATUTE LAW.
A STATUTE is a law established by the act
of the legislative power. An act of the legis-
lature. The written will of the legislature,
solemnly expressed according to the forms
necessary to constitute it the law of the State.
This word is used to designate the written law
in contradistinction to the unwritten law. See
ante, COMMON LAW. An affirmative statute
is one which is enacted in affirmative terms.
Such a statute does not necessarily take away
the common law.* If, for example, a statute
without negative words declares that when
certain requisites shall have been complied
with, deeds shall have a certain effect as evi-
dence, this does not prevent their being used
in evidence, though the requisites have not
been complied with, in the same manner as
tney might have been before the statute was
passed. f Nor does such an affirmative statute
repeal a precedent statute if the two can both
be given effect.* A negative statute is one
expressed in negative terms, and so controls
the common law that it has no force in oppo-
sition to the statute. 11 A declaratory statute is
one which is passed in order to put an end to
a doubt as to what is the common law or the
meaning of another statute, and which declares
what it is and ever has been. A remedial
statute is one which is made to supply such
defects and abridge such superfluities in the
common law as may have been discovered.
The term " remedial statute " is also applied
to those acts which give the party injured a
remedy ; and in some respects such statutes
are penal. 1 A penal statute is one which com-
mands or prohibits a thing, under a certain
penalty.^ A statute affixing a penalty to an
act, though it does not in words prohibit it,
thereby makes it illegal.* A perpetual statute
is one for the continuance of which there is no
limited time, although it be not expressly de-
clared to be so. If a statute which did not
itself contain any limitation is to be governed
by another which is temporary only, the former
will also be temporary and dependent upon
the existence of the latter. 1 A temporary stat-
ute is one which is limited in its duration at
the time of its enactment. It continues in
force until the time of its limitation has ex-
pired, unless sooner repealed. A statute which
d-4 S. & R. 364 : 3 Dall. 396; I Bay, 179 ; 7 Johns.
477. e-Co. 2d Inst. 200 ; Dwarris Stat. 474. f-2 Caines,
169. g-Dwarris Stat. 474. li-Bac. Abr. Stat. (G). 1-
Esp. Pen. Act. i. J-Esp. Pen. Act. 5, Bac. Abr. ; see
generally, Bac. Abr. Com. Dig. Parlim. Viner. Abr.
Dane Abr. Index ; Chitty Pr. ; i Kent Comm. 447-459 ;
Barrington Stat. Boscawen Pen. Stat. ; Esp. Pen. Act.
Dwarris Stat. ; Sedgw. Const. L. k-i4 Johns. 273; i
Binn. no; 37 Eng. L. & Eq. 475; 14 N. H. 294; 4
Iowa, 490; 7 Ind. 77. I-Bac. Abr. Stat. (D). ni-Bac.
Abr. Stat. (F.); i Bl. Comm. 85,86; Dwarris Stat.
629 ; 4 Co. 76 ; i T. R. 125; Skinn. 350 ; and see Hale,
Hist. Comm. L. (Runnington's Ed.) 3 ; i Kent Comm.
by reason of its nature has only a single and
temporary operation e. g., an appropriation
bill is also called a temporary statute. Private
or special statutes or acts are those of which
will not take notice without pleading ; such as
concern only a particular species or person.
Private statutes may be rendered public by
being so declared by the legislature. Private
statutes will not bind strangers, though they
should not contain any saving of their right.
A general saving clause used to be inserted in
all private bills ; but it is settled that, even if
such saving clause be omitted, the act will
bind none but the parties. Public or general
statutes are those of which the courts will take
judicial notice without pleading or proof.
They are either general or local that is, have
operation throughout the State at large, or
within a particular locality. It is not easy to
say what limitation will render an act local.
Thus, it has been held that a public act relat-
ing to one county only is not local within the
meaning of the constitutional provision which
forbids enactments of local bills embracing
more than one subject. 11
It is a general rule that when the provisions
of a statute is general, everything which is
necessary to make such provision effectual is
supplied by the common law, and when a
power is given by statute, everything necessary
for making it effectual is given by implication. P
A statute which contravenes a provision of
the constitution of a State by whose legislature
it was enacted, or of the Constitution of the
United States, is in so far void. The presump-
tion, however, is that every State statute, the
object and provision of which are among the
acknowledged powers of the legislation, is
valid and constitutional ; and such presump-
tion is not to be overcome unless the contrary
is clearly demonstrated. i Where a part only
of a statute is unconstitutional, the rest is not
void if it can stand by itself. r
A statute is not to be deemed repealed, merely
by the enactment of another statute on the same
subject. There must be a positive repugnancy
between the provisions of the new law and the
old to work a repeal by implication ; and even
then the old law is repealed only to the extent
of such repugnancy.' This rule is supported
by a vast variety of cases. There is, however,
a qualification to be observed in the case of a
revised law. Where the new statute is in
effect a revision of the old, it may be treated
as superseding the former, though not expressly
so declared." A mere change of phraseology
459. n-5 N. Y. 285 ; 2 Sandf. 355 ; i Hilt. 483.^ o-<~o
~,itt. 235 ; Co. 2d Just.
Quando lex illiquid conredit, concedere videtur et ~id
Litt. 235 ; Co. 2d Just. 222 ; Bac. Abr. Stat. (B). p-
per quod devenitur ad aliud. (When the law grants
anything it would also appear to concede that by which
it may be accessible.) 12 Co. 130, 131 ; Co. 2d Just.
306. l-6 Cranch, 87; i Cow. 564 ; 3 Denio, 381 ; 7 N.
Y. 109; 19 Barb. 81. r-i Gray, i. t-i6 Pet. 342. n-
7 Mass. 140 ; 12 Id. 537, 545 ; i Pick. 43, 45, 154 : 9 Id.
97; 10 Id. 39 ; 3 Me. 22; 31 Id. 34 ; 42 Id. 53 ; i6Barb.
15 ; 5 Eng. L. & Eq. 588 ; 37 N. H. 295 , 30 Vt. 344 ; 8
Texas. 62 ; 14 111. 334 ; 6 B. Men. 146 ; but compare 9
Ind. 337 ; 10 Id. 566.
53
LAW LIENS.
in the revision does not, however, necessarily
imply a change in the law. T Where a new
statute expressly repeals the former statute,
and the new and the repeal of the old are to
take effect at the same time, a provision in the
old statute which is embodied in the new is
deemed to have continued in force without
suspension. w But it has been held, that where
the new law does not go into effect until a
time subsequent to that at which the repeal
takes effect, such a provision is to be deemed
repealed meantime. 1
It is not to be presumed in the courts of any
State, that statutes which have been enacted in
that State have also been enacted in other
States. The courts assume that the common
law still prevails, unless it is shown to have
been modified.'
CONSTRUCTION. Penal statutes are to be
strictly construed. Remedial statutes are to
be liberally construed. 1
The apparent object of the legislature is to
be sought for as disclosed by the act itself, the
preamble in some cases, similar statutes relat-
ing to the same subject, the consideration of
the mischiefs of the old law, and perhaps some
other circumstances. All statutes are to be
construed with reference to the provisions of
the common law, and provisions in derogation
of the common law are held strictly. In con-
struing statutes of the various States or foreign
countries, the Supreme Court of the United
States adopts the construction put upon them
by the courts of the State or country by whose
legislature the statute was enacted ; but this
does not necessarily include subsequent varia-
tions of construction by such courts. 11
PUNCTUATION is not to be regarded in con-
struing a statute. 1 *
Lease. See CONVEYANCES, " Leases."
Legacy. See CONVEYANCES, " Wills."
Legal. See LAW.
Legal Tender. See MONEY.
Legates. See INTERNATIONAL LAW.
Legislation. See LAW.
Legislative. See OFFICE AND OFFICERS.
Legitimacy. See CHILDREN.
Letter. See BAILMENTS, "Hire;" CONI -:VCTS,
" Payments."
Letter of Advice. See BONDS, NOTES, AND
BILLS.
Letter of Attorney. See AGENCY, "Attorneys
in Fact."
Letter of Credence. See INTERNATIONAL
LAW.
Letter of Credit. See MERCANTILE LAW.
Lex Loci. See LAW.
Lex Fori. See LAW.
Lex Rei Si l :v. See LAW.
Libel and Slander. See TORTS.
LIENS. See title BAILMENTS; CONTRACTS; BTC.
A LIEN is a hold or claim which one person
lias upon the property of another as a security
for some debt or charge. In every case in
which property, either real or personal, is
charged with the payment of a debt or duty,
V-2i Wend. 316: 2 Hill, 380; 4 Sandf. 374; 7 Barb.
IQI ; 33 N. H. 246 ; 6 Texas, 34. w-i Wis. 667; 15
III. 595. x-i2 La. An. SOT : but see i Pick. 33. y-22
Barb. 118 : 23 Id. 498 ; 2 Duer, 419 ; see ante, FOREIGN
LAWS. -Dwarris Stat. 615, et seq. a-5 Pet. 280. b-
t Oay, 3 8 3- W-Whitaker Liens, x-z East. 235. j'-
every such charge may be denominated a licit
on the property.* It differs from an estate in
or title to the property, as it may be discharged
at any time by payment of the sum for which
the lien attaches. It differs from a mortgage
in the fact that the mortgage is made, and the
property delivered, or otherwise, for the ex-
press purpose of security ; while the lien at-
taches as incidental to the main purpose of the
bailment; or, as in case of a judgment, by
mere act of the law without any act of the
party. In its more limited as well as com-
moner sense, the word lien indicates a mere
right to hold the property of another as secu-
rity ; or it is the right which one person pos-
sesses, in certain cases, of detaining property
placed in his possession belonging to another,
until some demand which the former has upon it,
is satisfied. 1 A qualified right which, in certain
cases, may be exercised over the property of
another.y A lien is a right to hold.* A lien
in regard to personal property is a right to de-
tain the property till some claim r charge is
satisfied.* The right of retaining or continu-
ing possession till the price is paid. b Common
law lien, as distinguished from other classes,
consists in a mere right to retain possession
until the debt or charge is paid. A general
lien is the right to retain the property of an-
other on account of a general balance due from
the owner." Of course wherfc a general lien
exists a particular lien is included. A partic-
ular lien is the right to retain the property of
another on account of labor employed or
money expended on that specific property. 11
Particular liens constitute the oldest class of
liens, and the one most favored by the common
law. 6 But the courts ceased to originate liens
at an early period/ while general liens have
been looked upon with jealousy, being con-
sidered encroachments upon the common law,
and founded solely in the usage of and for the
benefit of trade. In cases of a factor an ap
parent exception exists, as he is allowed a lien
on the proceeds of the goods sold, as well as
on the goods themselves. But this seems to
result from the relation of the parties and the
purposes of the bailment ; to effectuate which,
and at the vame time to give a security to the
factor, the law considers the possession, or
right to possession, of the proceeds the same
thing as rhe possession of the goods themselves.
Liens Cither exist by law, arise from usage, or
are created by express agreement.
COMMON LAW LIENS.
Liens which exist by the common law gen-
erally arise in cases of bailment. Thus, a par-
ticular lien exists whenever goods are delivered
to a tradesman for the execution of the pur-
poses of his trade upon them.* And so, where
a person is, from the nature of his occupation,
6 East. 25, ft. z-2 Campb. 579. H-Met. Yelv. 67, n <-
b-i Parsons' Mar. L. 144 ; (2) Whitaker Liens. 9 (
Burr. 2221 : Dougl 97: 9 B. & P. 126. d-i K.^s F "
494- e-p East. 426. 1-3 Bos. & P. 42. ?6. 40 1
Atk. Ch 228, 2 RolleAbr. 92; aM.&S. 167. M I ,.k
332; 7 Barb. 113.
LIENS.
539
under a legal obligation to receive and be at
trouble or expense about the personal property
of another, in every such case he is entitled to
.1 particular lien upon it. h And sometimes a
hen arises where there is strictly no bailment:
thus, where a ship or goods at sea come into
possession by finding, and he has been at some
trouble or expense about them, he is entitled to
retain the same until reimbursed his expenses.
This applies only to the salvors of a ship and
cargo preserved from peril at sea, 1 and in case
of property on shore, where a specific reward
is offered for the restoration, J and does not ap-
ply, generally, it is said, to things found upon
land,* unless so made by custom or statute.
Liens which arise by usage are usually gen-
eral liens, and the usage is either the general
usage of trade, or the particular usage of
parties. 1 The usnge must be so general that
the party delivering the goorls may be presumed
to have known it, and to have made the right
of lien a part of the contract. And the lien
must be for a general balance arising from
transactions of a similar character between the
parties, and that the debt must have accrued in
the business of the party claiming the lien, n
and it seems that more decisive proof of gen-
eral usage is required in those occupations in
which the workmen are required to receive
their employment when offered them, such
as carriers. But where a general lien has
been once established, the courts will not allow
it to be disturbed.?
In regard to a general lien arising from par-
ticular usage between the parties, proof of their
having before dealt upon the basis of such a
lien will be presumptive evidence that they
continue to deal upon the same terms. - If a
debtor, who has already pledged property to
secure a loan, borrow a further sum, it will be
understood that the creditor's lien is for the
whole debt. r
Liens which arise from Express Agreement.
A general or particular lien may be acquired in
any case by the express agreement of the parties. 8
This generally happens when goods are placed
in the hands of a person for the execution of
some particular purpose upon them, with an
express contract that they shall be considered
as a pledge for the labor or expense which the
execution of that purpose may occasion ; or it
exists where the property is merely pawned or
h-i Esp 109; Ld.Raym. 867; 6T R. 17; 3 B. &
P. 42. l-i Ld. Raym. 393 ; 5 Burr. 2732 ; 8 East. 57 ;
16 Penn St 393. j-8 Gill. 218 ; 3 Met. (Mass.) 352.
lt-2 H Bl 254; 2 W Bl. 1117. I-Whitaker Liens, 31.
in-3 B & P. 50. n-Whitaker Liens. 33; and see i
Atk Ch 223, i W. Bl. 651. 0-6 T. R. 14; 6 East.
519; 7 Id 224 p-i Esp 109: 3 Id. 31. q-i Atk. Ch.
23s ; 6T R. 19 r-2Vern Ch 691. s-Cro. Car. 271 ;
6T. R 14. t-Whitaker Liens, 27. n-6 T. R. 14 ; 3
Bos & P. 4 v-6 T. R 14 w-Cro Car. 271. Nor
a livery stable keeper 2 Ld. Raym. 866: 6 East. 509 ;
35 Me. 153, in the absence of a statute allowing it. 23
Penn. St. 193 x-ta Wend 261 ; 2 Aik. 162 : 14 Vt.
485; ii N. H. 163; ii Miss. 225; see 13 Ohio, 167.
y-20 Pick. 259; 2 Met. (Mass.) 458; 10 Barb. 67; 4
Sandf. 661 ; Wright, 485 ; 30 Me. 152 ; 15 Vt. 544 : Con-
tra. 7 Penn. St. 376. z-Met. Yelv. 67,^ ; 34 Me. 20 ;
ai N. H 339; 22 Pick. 210. a-6 T. R. 14 ; 3 Selw. N.
delivered for bare custody to another, for the
sole purpose of being a security for a loan
made to the owner on the credit of it.* And
if a number of tradesmen, not obliged by law
to receive the goods of any one who offers for
the purposes of their trade, agree not to receive
goods unless they may be held subject to a gen-
eral lien for the balance due them, and the
bailor knows this, and leaves the goods, the
lien attaches." And the same is true, of
course, of an individual under similar circum-
stances. But where the tradesman is obliged
to receive employment from any one who offers,
a mere notice will not be enough to give this
lien with implied assent, but express assent
must be shown. T
Liens which Exist in the Absence of any
Special Agreement. Among the different
classes who have liens by the common law, in
the absence of any special agreement, are :
Agisters of cattle have no lien. w Attorneys
and solicitors have a lien upon the papers of
their clients,* and also upon judgments ob-
tained by them.y But this lien is subject to
some restrictions. 1 Bailies for hire generally
for work done by them.* Bankers have a lien
on all securities left with them by their em-
ployers. 1 * Clerks of courts have a lien on papers
for their fees. Common carriers for transpor-
tation of goods, 4 but not if the goods are taken
tortuously from the owner's possession, where
the carrier is innocent, 6 and on a passenger for
his passage-money.' Part of the goods may
be detained for the whole freight of goods be-
longing to the same person.* Factors and
brokers have a lien on goods and papers 11 on
part of the goods for the whole claim, 1 but only
for such goods as come to them as factors.^
Innkeepers may detain a horse for his keeping*
if he belong to a guest, 1 but not sell him m un-
less authorized by statute, and then in the ex-
press mode provided; but cannot retake the
horse after giving him up. n They may detain
the goods of a traveler, but not of a boarder..
Their lien is a particular lien.P Pawnees from
the very nature of their contract, * but only
where the pawner (or pledger) has authority to
make such pledge. r A pledge, even where the
pawnee is innocent, does not bind the owner,
unless the pawner has authority to make the
pledge.* The pawnee does not have a general
lien.* Tailors have a particular lien." Ven-
P. 1163; 4 T. R. 260; 26 Miss. 182; 4 Wend. 292. b-
5 T. R. 488 ; i Esp. 66 ; 3 Gilm. (Va.) 233 ; i How. 234.
C-3 Atk. Ch. 727; i P. Wms. 460; 2 Ves. Ch. in. d-
i Ld. Raym. 752 ; 6 East. 519 ; 7 Id. 224; i Dongl. i ;
Wright, 216; 24 Me. 339. e-i Dougl. i ; 2 Hall, 561 ;
5 Cush. 137; Contra. 6 East. 519 ; 6 Whart. 418. i-a
Campb. 631. jf-6 East. 622. h-3 T. R. 119; i Johns.
Cas. 437, . , 8 Wheat. 268 ; 28 Vt. 118 ; 34 Me. *8?.
i-6 East. 622; 34 Me. 582. j-n Eng L. & Eq. 528.
k-2 Ld. Raym. 366; 8 Mod. 173 ; 6 T. R. 141. 1-u
Barb. 41. nt-F. Moore, 876; Bac. Abr. Inns (D.} ; 8
Mod. 173. n-8 Mod. 173; Hob. 42; Met. Yelv. 67.
O-8 Rich. 423. p-oEast. 433; Cro. Car. 271 ; 2 E. D.
Smith, 195. q-is Mass. 408 : 2 Vt. 309 ; 9 Wend. 345 ;
3 Mo. 219. r-3 Atk. Ch. 44 ; 2 Campb. 336, . S-Paley
Ag. 151 : i Vern. Ch. 407; 2 Stark. 21 ; i Mas. C. C.
440 ; 2 Mass. 398 ; 4 Johns. 103 ; i M. & S. 180. t-tj
Mass. 490. Il-Cro. Car. 271 ; 9 East. 43).
540
LIENS.
Jffrs of goods have a lien for the price so long
26 they retain possession.' Warehousemen
have a particular lien. w So a wharfinger.'*-
General Requisites of a Valid Lien. In all
these cases, to give rise to the lien there must
have been a delivery of the property; it must
have come into the possession of the party
claiming the lien, or his agent.* A question
may arise by whom the delivery is to be made.
Where a person, in pursuance of the authority
and directions of the owner of property, de-
livers it to a tradesman for the execution of the
purposes of his trade upon it, the tradesman
will not have a general lien against the owner
for a balance due from the person delivering
it, if he knew lhat the one delivering was not
the real owner.* Thus, a carrier, who, by the
usage of trade, is to be paid by the consignor,
has no lien for a general balance against the
consignee.' Nor can a claim against the con-
signee destroy the consignor's right of stoppage
in transitu^ But a particular lien may un-
doubtedly be derived through the acts of agents
acting within the scope of their employment.
And the same would be true of a general lien
against the owner fora balance due from him. d
No lien exists where the party claiming it
acquires possession by wrong 8 or by misrepre-
sentation/ or by his unauthorized and voluntary
act. No lien exists where the act of the ser-
vant or agent delivering the property is totally
unauthorized, and the pledge of it is tortious
against the owner, whether delivered as a
pledge or for the execution of the purposes of a
trade thereupon. 11 A pledge, even when the
pawnee is innocent; does not bind the owner
unless the pawner had authority. 1
A delivery by a debtor for the purpose of
preferring a creditor will not be allowed to
operate as a delivery sufficient for a lien to
attach.!
Waiver of Lien. Possession is a necessary
element of common law liens; and if the credi-
tor once knowingly parts with that possession
after the lien attaches, the lien is gone. k But
there may be a special agreement extending
the lien, though not to affect third persons. 1
The delivery may be constructive and so may
possession." A lien cannot be transferred, but
property subject to a lien may be delivered to
a third person, as to the creditor's servant with
notice of the lien, so as to preserve the lien of
V-7 East. 574 ; i H. Bl. 363 ; Hob. 41 ; 2 Bl. Comm.
448; 2 Swanst. 661 ; 6 McLean C. C. 472. W-i8 111.
286; 34 Eng. L. & Eq. 116; 31 Miss. 261 ; 13 Ark. 437.
x-Ware Dist. Ct. 354. y-3 T. R. 119 ; 6 East. 25, n.
K-I East. 335 ; 2 lid. 523 ; 2 Campb. 218 ; Parke Cas.
176; 2 Atk. Ch. 114. a-s B. & P. 64. fo-3 B. & P. 42.
-9 East. 233 ; 3 B. & P. 119 ; 3 Esp. 182 ; 2 East. 237.
d-Whitakcr Liens, 39. e-2 T. R. 485. f-i Campb. 12.
g-i Sir. 651 ; 8 T. R. 310, 610; 2 H. Bl. 254 ; T. W. Bl.
1117 ; but see 4 Burr. 2218. h-5 Ves. Ch. in ; 6 East. 17 ;
4 Esp. 174 ; 5 T. R. 604. i-Paley Ag. 151 ; i Vern. Ch.
407 ; 2 Stark. 21 ; i Mas. C. C. 440; 2 Mass. 398; 4 Johns.
103; i M. & S. 140. |-4 Burr. 2239; 3 Ves. Ch. 85 ; 2
Campb. 579; n East.' 256. k-Str. 556; i Atk. Ch.
254; Ambl. 252 ; Dougl. 97 ; 5 Ohio, 88; 6 East. 25, n. ;
7 Id. 5 ; 3 T. R. 119 ; 2 Edw. Ch. 181 ; 5 Binn. 398 ; 3
Am. L. Jour. 128 ; 4 N. Y. 497 ; 4 Denio, 498 ; 42 Me.
50; ii Cush. 331; 2 Swanst. 561; 23 Vt. 217. 1-36
the original creditor.! 1 But it must not be de
livered to the owner or his agent.i But if the
property be of a perishable nature, possession
may be given to the owner under proper agree-
ments. 1 " Neglect to insist upon a lien in giving
reasons for a refusal to deliver property on de-
mand, has been held a waiver.*
Where there is a special agreement made, or
act done, inconsistent with the existence of the
lien, such as an agreement to give credit, or
where a distinct security is taken, or the pos-
session of the property is acquired for another
distinct purpose, and for that only, or where
the property is attached by the creditor, no
lien arises.* But such agreement must be
clearly inconsistent with the lien."
Rights, Uses, and Remedies under a Lien.
The only remedy or use of the lien at common
law is to allow the creditor to retain possession
of the goods, T etc. And this he may do as
against assignees of the debtor. w
MARITIME LIENS do not include or require
possession. The word lien is used in maritime
law, not in the strict legal sense in which we
understand it in courts of common law, in
which case there could be no lien where there
was no possession, actual or constructive ; but
to express, as if by analogy, the nature of claims
which neither presuppose nor originate in pos-
session.* A distinction is made in the United
States between qualified maritime liens, which
depend upon possession, and absolute maritime
liens, which do not require nor depend upon
possession. 1 *
Builders' lien may be placed on the common-
law ground that a workman employing skill
and labor on an article has a lien upon it;' and
a lien for the purpose of finishing the ship
where payments are made by instalments. 11 See
MATERIAL MEN, below.
Collision. In case of collision the injured
vessel has a lien upon the one in fault for the
damage done; 6 and the lien lasts a reasonable
time. f
Deposit of a bill of lading gives a lien for
the amount advanced on the strength of the
security .* See PART-OWNER, below.
Dead Freight. No lien exists for dead
freight. 11 The lien attaches only for freight
earned. 1 The lien is lost by a delivery of the
goods,! but not if the delivery be involuntary,
Wend. 467. m-Ambl. 252. n-5 Ga. 153. 0-8 Pick.
73- p-2 East. 529 ; 7 Id. 5. |-Whitaker Liens, 71, n. ;
2 East. 529 ; 4 Johns. 103. r-i Atk. Ch. 235; 8 T. R.
199. 8-i Campb. 410, .; 7 Ind. 21 ; 13 Ark. 437; 2
Blackf. 465. t-i6 Ves. Ch. 275; 4 Campb. 146; 2
Marsh. 339 ; 3 Anstr. 881 : 5 M. & S. 180; Met. Yelv.
67, c. ; 8 N. H. 441 ; 17 Pick. 140 ; 15 Mass 389 : 4 Vt.
549. n-i Dutch. 443 ; 32 Me. 319. V-33 Me. 438 : i
Mas. C. C. 319. W-i Burr. 489. B-22 Eng. L. & Eq.
62 ; see 15 Bost. Law Rep. 555 ; 16 Id. i, 264 ; 17 Id.
93, 421. fo-7 How. 729. c-2 Rose, 91 ; 4 Barnew. &
Aid. 341 ; i W. Rob. Adm. i ; Wright Ohio, 660; 4
Wheat. 438; i Stor. C. C. 68. d-i Parsons' Mar. Law.
75 ; 5 Barnew. & Aid. 942. e-i Notes of Cases, 508;
22 Eng. L. & Eq. 62 : Crabb, 580; 10 Law Rep. 264.
f-i8 Bost. Law Rep. 91. g-s Taunt. 558 ; a Wash. C.
C. 283. li-is East. 547; 3 Maule & S. 205. i-j
Maule & S. 205 ; Ware Dist. Ct. 149 ; 2 Brev. No. C
133. j-6 Hill N. Y. 43.
LIENS.
54'
6r procured by fraud.* So it is by stipulations
inconsistent with its exercise, 1 as by an agree-
ment to receive the freight at a day subsequent
to the entire delivery of the goods a distinc-
tion being, however, taken between the unload-
ing or arrival of the ship, and the delivery of
the goods.
A third person cannot take advantage of the
existence of such lien." A vendor, before ex-
ercising right of stoppage in transitu, must dis-
charge this lien by payment of freight.
Master's Lien. In England, the master has
no lien, at common law, on the ship for wages,
nor disbursements.?
But, by the one hundred and ninety-first
section of the English Merchant Shipping Act
of 1854, it is provided that "Every master
of a ship shall, so far as the case permits, have
the same rights, liens, and remedies for the
amount of his wages, which, by this act, or any
law or custom, any seaman, not being a master,
has for the money of his wages." This lien of
the master on an English vessel may be rein-
forced in the admiralty courts of the United
States.*
In the United States, he has no lien for his
wages.' This does not apply to one not master
in fact. 1 As to lien for disbursements.* He
may be substituted if he discharge a lien." But
he has a lien on the freight for disbursements ; T
for wages in a peculiar case ; w and on the cargo,
where it belongs to the ship-owners. 1 He may,
therefore, detain goods against the shipper or
consignee, even after payment to owner, if the
master give reasonable notice.^ The master may
retain goods till a contribution bond is signed.*
Material men have a lien by admiralty law.
They are those whose trade it is to build, re-
pair, or equip ships, or to furnish them with
tackle and provisions necessary in any kind.*
In regard to foreign ships, it has been lately
held that material men have a lien on the ship
only when the supplies were necessary, and
could be obtained only on the credit of the
ship. b The lien for repairs continues only as
long as they retain possession, on domestic
ships ; and is gone if possession is left. d
ll-6 Hill N. Y. 43. 1-17 How. 53 ; 10 Conn. 104 ; 6
Pick. Mass. 248; 4 Barnew. & Aid. 50; 4 Mann. & G.
502 ; 4 Bingh. 729 ; 3 Barnew. & Aid. 497; 32 Eng. L.
& Eq. 210. m-Sumn. C. C. 551 ; 18 Johns. N. Y. 157 ;
14 Mees. & W. Exch. 794; 2 Sumn. C. C. 589 ; 5 Maule
& S. 180 ; 10 Mass. 510. 11-3 East. 85. o-i Parsons'
Mar. L. 350 ; 15 Me. 314 ; 3 Bos. & P. 42. p-g East.
426; 33 Eng. L. & Eq. 600; i Barnew. & Aid. 575; 5
Dowl. & R. 552; 6 How. 112. q-22 Bost. Law Rep.
150. r-2 Paine C. C. 201 ; 8 Serg. & R. Penn. 18; i
Pet. Adm. 223 ; n Id. 175 ; 3 Mas. C. C. 91 ; 14 Penn.
81.34; 18 Pick. Mass. 530. s-Bee. Adm. 198. t-2
Curt. C. C. 427: 14 Penn. St. 34; n Pet. 175. u-i
Pet. Adm. 223; Bee, Adm. 116; 3 Mas. C. C. 255. v-
4 Mass. 91 ; it Id. 72 ; 5 Wend. N. Y. 315 ; 1 8 Pick.
N. Y. 530. w-Ware, 149. x-i4 Me. 180. y-n Mass.
72 ; 5 Wend. N. Y. 315 ; 4 Esp. 22 ; but see 5 Dowl. &
R. 552. z-n Johns. N. Y. 23; 2 Sandf. N. Y. 55 ; ir
Me. 150; 13 Id. 357. -3 Hagg. Adm. 129. b-ig How.
359. c- Wright, Ohio, 660 ; 4 Wheat. 438 : i Stor. C.
C. 68. d-M Conn. 404 ; 4 Wheat. 438 ; 4 Wash. C. C.
453 ; i Parsons' Mar. Law, 492, n. ; and see j| 11. e-
See Dav. Dist. Ct. 109 ; Ware Dist. Ct. 2d ed. 565 ; a
Curt. C. C. 421- f-7 P. 324; i Wall, Jr. 358; 13
Bs.t. Law R-p. 183. -20 How. 393. b-2i Id. 4,248.
The several States of the United States are
foreign to each other in this respect.
As to the order of precedence of these liens. 8
Admiralty formerly took jurisdiction of such
liens, though not strictly maritime liens ; f but
this jurisdiction is now questioned,* if not de-
nied. 11
Giving credit will not be a waiver of a lien
on a foreign ship, unless so given as to be in-
consistent with the exercise of the lien. 1 See
BUILDERS, ETC., above.
Owner of a ship has a lien on the cargo car-
ried for freight earned, whether reserved by a
bill of lading or not.J
This lien is, at most, only a qualified mari-
time lien. k The lien exists in case of a char-
tered ship 1 to the extent of the freight due
under the bill of lading. But if the charterer
takes possession and management of the ship,
he has the lien. n No lien for freight attaches
before the ship has broken ground. But see,
as to the damages for removing goods from the
ship before she sails.?
A part-owner, merely as such, has no lien
whatever, but acquires such a lien when any
of the elements of partnership or agency, with
bailment upon which his lien may rest, enter
into his relation with the other part-owners.i
A part-owner who has advanced more than
his share towards building a vessel has no lien
on her for such surplus/ and none, it is said,
for advances on account of a voyage.*
That the relation of partners must exist to
give the lien.*
And part-owners of a ship may become part-
ners for a particular venture."
The liens of part-owners and by deposit
of a bill of lading are not maritime liens,
however, and -could not be enforced in ad-
miralty.
Partners. See PART-OWNERS, above;
SHIP'S HUSBAND, below.
Seamen' 's lien for wages attaches to the ship
and freight, and the proceeds of both, and fol-
lows them into whosoever hands they come ; T
and lies against a part, or the whole, of the
fund; w but not the cargo. 1 It applies to pro-
i-7 Pet. 324 ; i Sumn. C. C. 73 ; 5 Sandf. N. Y. 342. J-
12 Mod. 447 ; 6 East. 622 : 4 Campb. 298 ; 7 Taunt. 14 ;
4 Barnew. & Aid. 630; 2 Brod. & B. 410; 4 Mass. 91 ;
6 Pick. Mass. 248 ; 18 Johns. N. Y. 157 ; 5 Wend. N.
Y. 315 ; 5 Sandf. N. Y. 97 ; 5 Ohio, 88 ; 4 Wash. C. C.
no; 8 Wheat. 605 ; Ware Dist. Ct. 149 ; i Sumn. C. C.
551; aid. 589; 2 Woodb. & M. C. C. 151. k-See i
Parsons' Mar. Law, 143, n. 1-4 Cow. N. Y. 470 ; i
Paine C. C. 358; 4 Barnew. & Aid. 630; 20 Bost. Law
Rep. 669 ; 8 Wheat. 605. m-2 Atk. Ch. 621 ; i Barnew.
& Aid. 712; 4 Id. 630; i Sumn. C. C. 551. n-i Cowp.
143 ; 8 Cranch, 39 ; 6 Pick. Mass. 248 : 4 Cow. N. Y.
470; Ware Dist. Ct. 149 ; 4 Mann. & G. 502 ; 26 Eng
L. & Eq. 136. o-i Bos. & P. 634 ; 5 Binn. Penn. 392 ;
3 Gray Mass. 92. p-28 Eng. L. & Eq. 210; i C. B.
328 ; 2 Carr. & P. 334 ; 19 Bost. Law Rep. 579 ; 2 Gray
Mass. 92. q-i Parsons' Mar. Law. 103. r-6 Picl
Mass. 46. 8-4 Pick. Mass. 456; 7 Bingh. 709. t-i
92. q-i Parsons' Mar. Law. 103. r-6 Pick.
46. 8-4 Pick. Mass. 456; 7 Bingh. 709. t--zo
Johns. N. Y. 61 ; 4 B. Monr. Ky. 458 ; 8 Barnew. & C.
612 ; Gilp. Dist. Ct. 467 ; 4 Johns. Ch. N. Y. 522 : 6
Pick. Mass. 120 ; 5 Mann. & R. 25. u-x Ves. Sen. Ch.
497: 3 Woodb. & M. C. C. 193; 10 Mo. 701 ; 9 Pick.
Mass. 334 ; but see 14 Penn. St. 34. v-2 Sumn. C. C,
443 ; 2 Parsons' Mar. L. 579. \V-3 Sumn. C. C. 514
286. at-s Pet. 675.
542
LIENS LOSS.
ceeds of a vessel sold under attachment of a
State court.'
This lien of a seaman is of the natmre of the
frivilegium of the civil law, does not depend
upon possession, and takes precedence of a
bottomry bond or hypothecation.* Taking the
master's order does not destroy the lien.* Fish-
ermen on shares have it, by statute. Generally,
all persons serving in a way directly and mate-
rially useful to the navigation of the vessel. b
A woman has it if she performs seaman's ser-
vice." It lies against ships owned by private
persons, but not against government ships em-
ployed in the public service. 4
A ship-broker, who obtains a crew, has been
held to have a lien for his services, and ad-
vances for their wages.*
Shipper of goods has a lien upon the ship, for
the value of the goods sent, which can be en-
forced in admi rally ; f and, generally, every act
of the master binds the vessel, if it be done
within the scope of his authority,* where the
possession of the master is not tortious, but un-
der a color of right. h This does not apply to
contracts of material men with the master of a
domestic ship; 1 and the act must have been
within the scope of the master's employment^
This lien follows the ship even in the hands of
a purchaser, without notice before the creditor
has had a reasonable opportunity to enforce his
lien.* If the master borrow money for the
ship's necessity, the lender has a lien on the
ship for the amount. 1
The ship's husband, if a partner, has a part-
ner's lien ; if not, he may have a lien in the
proceeds of the voyage ; m or of the ship herself,
if sold, or on her documents, if any of these
have come into his actual possession. And the
lien applies to all disbursements and liabilities
for the ship. But it is doubtful if his mere
office gives him a lien. n
Stevedores have no lien.
STATUTORY LIENS. The principal liens of
this class are judgment liens, and the liens of
builders and material men.
At common law a judgment is a lien upon
real property from the time of its rendition.?
A judgment is sometimes, though very rarely,
a lien upon personal property.
Mechanics and material men in most of the
States have a lien upon the property on which
they bestow their labor, or contribute materials
for repairs, or in the erection of buildings, etc.
See GENERAL STATUTES.
y-2 Wall C. C. 592, overruling i Newb. Adm. 215.
Z-2 Parsons' Mar. Law, 581, and cases cited ; 15 Bost.
Law Rep. 555; 16 Id. 264 ; Ware Dist. Ct. 134. a-
Ware Dist. Ct. 185 ; and see 2 Hagg. Adm. 136. b-
Gilp. Adm. 505; 2 Ventr. 181 ; 3 Hagg. Adm. 376; 2
Pet. Adm. 268 : Ware Dist. Ct. 83 ; i Blatchf. & H.
Adm. 423 ; i Sumn. C. C. 384 ; I Ld. Raym. 397; 2
Strange, 858. c-i Hagg. Adm. 187 ; 18 Bost. Law Rep.
67? ; T Newb. Adm. 5. l-9 Wheat. 409; 3 Sumn. C.
C. 308. e-i Blatchf & H. Adm. 180. f-i Blatchf. &
H. Adm. 300; Olcott Adm. 43 ; i Blatchf. C. C. 173;
Ware Dist. Ct. 188 ; i Sumn. C. C. 551 ; 12 How. 272.
g-ij Me 147 ; i W. Rob. Adm. 392 ; 2 Eng. L. & Eq.
536; 18 How. 182 ; 19 Id. 22. h-6 McLean C. C. 484.
l-i Conkling Adm. j-i8 How. 182; see Crahb, 23 ; i
C- Rob. Adm. 391-406. fc-Ware Dist. Ct. 188. 1-3
Life Assurance. See INSURA/CB.
LiiiiitiitioiiM. See PRACTICE.
Lilies iuil Carriers. See CONVEYANCES.
Liquidated Ihimayos. See DAMAGES.
Liquidation. See PAYMENT.
Literary Property. See COPYRIGHT.
I, nail. See BAILMENTS.
Local Statutes. See LAW.
Locative ('alls. See CONVEYANCES.
Lodgrcr. See BAILMENTS; "Inns," LANDLORD
ANI> 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. <i-i Hagg.
S.)6 73 . 'f-7 HilljN. Y.') 207; 5 Dana. 499; 15_I11.'
"ohns.
143.
J?-3 Hagg. Eccl. 657 ;
24 N7H.
Jo
. Ch.
4 Dei.
Eq. 183; 24 ifTH. 564. h-Bishop Marr. & D.$6i3
i-Id. $ 603-619; 2 Phill. Eccl. 40. J-8 Sim. Ch. 31',
321, n. ; 6 W. & S. 85 ; Bishop Marr. & D. % 591-599.
K-3 Hagg. Eccl. 322 ; 7 Dana, 181 ; 6 Harr. & J. 485.
4 Hen. & M. 587; 6 Ired. 293. 1-s Paige Ch. 509. m
3 Hagg. 322. 11-6 W. & S. 85; 12 Ga. 201. 0-8 Sim.
Ch. 321 ; 8 T. R. 545; 6 W. & S. 85. p-i Root. 349;
4 Hnyw. 75; 4 Md. Ch. 289. q-See 10 Paige Ch. 20;
7 Hill (N. Y.) ao;; Bishop Marr. & D. $ 6o-6oa ,
61 ' '
546
MARRIAGE AND DIVORCE.
the absence of a controlling necessity or very
strong propriety arising from the circumstances
of the case, the father's claim is to be pre-
ferred.'
THE CONSEQUENCES of divorce are such as
flow from the sentence by operation of law, or
flow from either the sentence or the proceeding
by reason of their being directly ordered by the
court and set down of record. 1 In regard to
the former, they are chiefly such as result im-
mediately and necessarily from the definition
and nature of a divorce. Being a dissolution
of the marriage relation, the parties have no
longer any of the rights, nor are subject to any
of the duties, pertaining to that relation. They
are henceforth single persons to all intents and
purposes. It is true that the statutes of some
f the States contain provisions disabling the
guilty party from marrying again ; but theso
are in the nature of penal regulations, collateral
to the divorce, and which leave the latter in
full force.'
DEFENCES. Some of the principal defences
in suits for divorce are: Connivance, or the cor-
rupt consent of a party to the conduct in the
'ither party whereof he afterwards complains.
This bars the right of divorce, because no injury
was received; for what a man has consented
to he cannot say was an injury." Collusion.
This is an agreement between husband and
wife for one of them to commit, or appear to
commit, a breach of matrimonial duty, for the
purpose of enabling the other to obtain the
legal remedy of divorce, vs for a real injury.
Where the act has not been done, collusion is
a real or attempted fraud upon the court;
where it has, it is also a species of connivance;
in either case it is a bar to any claim for di-
vorce. T Condonation applies chiefly, though
not exclusively, to the offence of adultery; it
is the conditional forgiveness or remission by
the husband or wife of a matrimonial offence
which the other has committed. While the
condition remains unbroken, condonation, on
whatever motive it proceeded, is an absolute
bar to the remedy for the particular injury
condoned. w Recrimination. This is a de-
fence arising from the complainant's being in
like guilt with the one of whom he com-
plains. It is incompetent for one of the parties
to a marriage to come into court and complain
of the other's violation of matrimonial duties,
if the party complaining is guilty likewise.
When the defendant sets up iuch violation in
answer to the plaintiff's suit, this is called, in
the matrimonial law, recrimination. 1
The foregoing defences, though available in
all divorce causes, are more frequently applic-
able where a divorce is sought on the ground
of adultery.
r-Reeve Dom. Rel. (id Ed.) 453; 40 N. H. 272 : 16
Pick. Mass. 203; 3 Hill N. Y. 299; 24 Bnrb. N. Y.
521; 27 Id. 9, and cases cited; Bishop Marr. & Piv.
Ch. 29. s-Bisbop Marr. & Div. \ 548. t-Bishop Marr.
& Div. W 655-659. U-Bhhop Mnrr. & Div. {> 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 ^<zrz-partnership which,
being proved, is held to be prima facie evi-
dence of a real partnership.
Where there is no written agreement, the
evidence generally relied upon to prove a part-
nership is the conduct of the parties, the mode
in which they have dealt with each other, and
the mode in which each has, with the
knowledge of the others, dealt with other per-
sons. This can be shown by the books of ac-
count, by the testimony of clerks, agents, and
other persons, by letters and admissions, and,
in short, by any of the modes in which facts
can be established.'
DISSOLUTION. A partnership may be dis-
solved in either of the following modes :
By the act of the parties, as by their mutual
|-5 B. & Aid. 954 : 3 M. & W. 357 ; 2 H Bl. 246 ; 6
S. & M. 385 ; i Story, 374 ; 17 Me. 180 ; 7 Ala. 761 ; I
<Jampb. 404, . ; 5 Bro. P. C. 489 ; 2 Chitty, 120. q-3
McLean, 364: 2 Id. 347; 7 B. Mon. 456: 22 Vt. 511.
r-2 Nott. & M'Cord, 447 ; 8 Gill, 92; 3 Story, 108. 8-
Sec 3 Harr. 358; 4 Id. 190; 6 Conn. 347; i Nott. &
M'C. 20; i Caines, 184; 2 Fla. 541 ; 9 C. B. 457; 3 C.
B. (N. S.) 562, 563; c. Bingh. 117. t-As to presump-
tions arising from the joint retainer of solicitors, see 20
Beav. Rolls. 98 ; 7 De Gex M. & G. 239 ; 7 Hare Ch.
159, 164. For cases in which partnership has been in-
ferred from various circumstances, see 4 Russ. Ch. 247;
2 Bligh. (N. S.)2is; 3 Brown Parl. Cas. 548; 5 Id.
482; i Stark. 81 ; 2 Campb 45. u-i Story Partn.
268 ; 3 Kent Coinm. 54 ; Poth Partn. n. 149. v-4 Russ.
Ch. 260. i Swanst. 508; 3 Kent Comm. 53, 54; Gow.
Partn. (36 Ed.) loo ; Story Partn. $ 84, 271, 273 ; see 5
4rk. 280. W-io JS. Y- (6 Seld.) 489. x-i s Johns. 82.
consent." And where no specified period is
limited for the continuance of the partnership,
either party may dissolve it at his pleasured If
the partnership be for a time certain, one part-
ner may maintain an action against the other
for a breach of the articles in dissolving before
the period therein limited. And the action
may be brought before the expiration of the
time for which the partnership was limited.
The damages would be the profits which would
have accrued to the plaintiff from the con-
tinuation of the business." When a partner-
ship is not to endure for a time certain by the
articles of copartnership, or where that time
has expired, it may undoubtedly be dissolved
at the pleasure of either partner. 1 But notice
should be given to the other partner.? This
should be a reasonable notice where the articles
are totally silent upon the subject, and where,
without such notice, injury would be inflicted,
or fraud indicated. 1 The duration may be
gathered from the terms of the articles, al-
though not expressly provided for." As against
third persons a partner may withdraw from the
partnership at will. b
By the act of God, as by the death of one
of the partners; and this operates from the
time of the death. In such case the dissolu-
tion takes place from the time of the death,
however numerous the association, and this not
only to the deceased partner, but also as to all
the survivors. 3 And the same rule applies to
a silent partner, 8 unless there be an express
stipulation to the contrary.' Although death
of a partner operates a dissolution of the part-
nership, the articles of copartnership may pro-
vide for its continuance, by an agreement that
the executors, administrators, heirs, or other
designated persons, shall take the place of the
deceased partner.* And such express agree-
ment for the continuance of the partnership
after the death of one partner is necessary, al-
though the partnership is for a term of years. h
Absolute insanity, or any equivalent disability,
operates at once, and ipso facto, a dissolution. 1
By the act of the law, as by the bankruptcy
of one of the partners.J Bankruptcy of the
firm, or of one partner, operates an immediate
dissolution.* An act of bankruptcy does not
dissolve the partnership instanter. The adju-
dication that he is a bankrupt is what severs
y-4 Russ. 260; 16 Ves. 50. x-$ ArV. 280. -2 Jtir.
252: 15 Ves. 227; i Swanst. 480; 17 Pick. 519; 18 Vt.
107. fo-3 C. B. (N. S.) 561. C-3 Mer. 610 ; 6 Cow.
441 ; Poth Partn. n. 144; 6 Conn. 184; 2 How. 560; 7
Ala. (N. S.) 19 ; Collyer Partn. ? 113 ; 3 Kent Comm.
55,56; Story Partn. {$317, 3'9 ; 7 Pet. 594 : 5 Met.
(Mass.1 519; 5 Gill. i. d-s Met. 575 ; 7 Peters, 586,
594 ; Chitty Contr. Ed. 1860, 285, note. *-'7 Pick.
520. f-3 Madd. Ch. 521 ; 2 How. 569. g-i Swanst.
514, n. ; Id. 520; 2 Ves. Sen. 33 ; 9 Ves. 500; 3 Dowl.
76 ; ii S. & R. 41 ; 7 Ala. 28. h-3 Madd. 251 ; 7 Pet.
586; M'Clel. & Y. 575. 1-Story Partn. ? 295: 2 M. &
K. 125 ; 15 Johns. 57 ; 10 N. H. 161 ; 2 Ves. & B. 303 ;
Gow. Part. 272. J-4 Burr. 2174 ; Cowp. 448; 6 Ves.
Ch. 126; 5 M. &'S. 340. k-Cowp. 448; i Swanst
482 ; 5 Ves. 295 ; 15 Id. 218 ; n Id. 5 ; 17 Id. 193 ; 15
Johns. 82, S. C. ; 16 Johns. 491 ; 17 Id. 535 ; 24 Pick.
89 ; 2 Doug. (Mich.) 206 ; Coll. Part. B. i, Ch. a, \ 3 ;
Story Part. 313.
PARTNERSHIP.
the partnership. 1 Insolvency under the statute
would have the same effect." 1 And bankruptcy
destroys the right of a partner to bind the firm
by an acknowledgment of debt." But either of
the solvent and competent partners may collect,
adjust, and receipt for partnership accounts.
By a valid assignment of all the partnership
effects for the benefit of creditors, either under
insolvent acts? or otherwise, 1 ! and by a sale of
partnership effects under a separate execution
against one partner.* 1 But the mere insolvency
of one or all the members of a partnership
does not itself operate a dissolution. 1
By the assignment of the -whole of one part-
ner's interest either to his copartner or to a
stranger.' Where it does not appear that the
assignee acts in the concern after the assign-
ment." Where it was held that this would not
ipso facto work a dissolution. Any assign-
ment of a copartner's interest in the partner-
ship's funds operates, ipso facto, a dissolution.
So, the assignment of the whole of a copart-
ner's interest.' And an assignment by one
partner of his share of the future profits to an-
other partner is a dissolution of the partner-
ship, because the essence of that is a participa-
tion of the profits.*
By the award of arbitrators appointed under
a clause in the partnership articles to that effect."
By the civil death of one of the partners ;J
but the absconding of a party from the State
does not of itself operate a dissolution. 1
By the extinction of the subject-matter of
the joint business or undertaking,* and by the
completion of the business or adventure for
which the partnership was formed.*
By the termination of the period for which
a partnership for a certain time was formed.
If the partnership be continued, by express or
tacit consent after that period, it will be pre-
sumed to continue on the old terms,* but as a
partnership at will.
By the breaking out of a war two States in
which the partners are domiciled and carrying
on trade.*
A partnership for a term may be dissolved
before the expiration of the term, by the decree
of a court of equity founded on the wilful
fraud or other gross misconduct of one of the
1-Coll. Partn. \ in ; 5 Ves. 295 ; Story Partn. ? 314.
na-i Bland. 418 ; 2 Ashm. 305. n-z Doug. (Mich.)
206. o-Cowp. 445; 5 M. & Sel. 336; Ji 111. 14; 12 Id.
298. p-Collyer Partn. \ 112. 0-41 Me. 373. r-Coll-
yer Partn. j> 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 <u . */., j. ..->.>.. *......
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<J
grantees of the right to use the thing patented,
to the extent of their interest therein. 1
DESIGNS.
Patents for Designs Authorized.
SEC. 4929. Any person who, by his own in-
dustry, genius, efforts, and expense, has in-
vented and produced any new and origina-
design for a manufacture, bust, statue, alto-rel
lievo, or bas-relief; any new and original de-
sign for the printing of woollen, silk, cotton, or
other fabrics ; any new and original impression,
ornament, patent [pattern], print, or picture to
be printed, painted, cast, or otherwise placed
on or worked into any article of manufacture;
or any new, useful, and original shape or con-
figuration of any article of manufacture, the
same not having been known or used by others
before his invention or' production thereof, or
patented or described in any printed publica
lion, may, upon payment of the fee prescribed,
and other due proceedings had the same as iu
u-8 July, 1870, c. 230, \ 64, v. 16, p. 208. v-Id. \ 65
w-ld. g 66, p. 209 ; W. vs. E. 3 Wood &M. 120: G.
vs. H. i Blatch. 167; C. vs. Y. 2 Blatch. 471. x-Id.
\ 67, p. 209 ; W. vs. R. 4 How. 646 : B. vs. McQ. 14
How. 549 ; C. vs. The B. B Co. 22 How. 223 , B. vs.
M. i Wall. 340; N. P. C. vs. J. 14 Wall 452 ; E vs.
D. 18 Wall. 414; G. vs. C. 2 Blatch. 146; B. vs. W 3
Blatch. 307 ; D. vs. R. Co. 3 Blatch. 488 ; P. tit. C. 4
McLean, 353.
574
PATENTS DESIGNS AND TRADE-MARKS.
cases of inventions or discoveries, obtain a
patent therefor.*
Models of Designs.
SEC. 4930. The commissioner may dispense
with models of designs when the design can be
sufficiently represented by drawings or photo-
graphs.'
Duration of Patents for Designs.
SEC. 4931. Patents for designs may be
granted for the term of three years and six
months, or for seven years, or for fourteen years,
as the applicant may, in his application, elect. 1
Extension of Patents for Designs.
SEC. 4932. Patentees of designs issued prior
to the second day of March, eighteen hundred
and sixty-one, shall be entitled to extension of
their respective patents for the term of seven
years, in the same manner and under the same
restrictions as are provided for the extension
of patents for inventions or discoveries, issued
prior to the second day of March, eighteen
hundred and sixty-one.*
Patents for Designs, ete.
SEC. 4933. All the regulations and provi-
sions which apply to obtaining or protecting
patents for inventions or discoveries not incon-
sistent with the provisions of this title, shall
apply to patents for designs. 1 *
FEES.
Fees in Obtaining Patents, etc.
SEC. 4934. The following shall be the rates
for patent fees :
On filing each original application for a
patent, except in design cases, fifteen dollars.
On issuing each original patent, except in
design cases, twenty dollars.
In design cases : For three years and six
months, ten dollars ; for seven years, fifteen
dollars ; for fourteen years, thirty dollars.
On filing each caveat, ten dollars.
On every application for the reissue of a
patent, thirty dollars.
On filing each disclaimer, ten dollars.
On every application for the extension of a
patent, fifty dollars.
On the granting of every extension of a
patent, fifty dollars.
On an appeal for the first time from the
primary examiners to the examiners-in-chief,
ten dollars.
On every appeal from the examiners-in-chief
V the commissioner, twenty dollars.
For certified copies of patents and other
papers, including certified printed copies, ten
cents per hundred words.
P"or recording every assignment, agreement,
power of attorney, or other paper, of three
hundred words or under, one dollar; of over
three hundred and under one thousand words,
two dollars ; of over one thousand words, three
dollars.
For copies of drawings, the reasonable cost
of making them.
Mode of Payment.
SEC. 4935. Patent fees may be paid to the
X-Id. ? 71, p. 209 ; C. vs. B. 10 Wall. 133 : G. Co. vs.
W. 14 Wall. 511 ; B. rs. G. i Blatch. 247 ; R. vs. B. 4
McLean, 180. y-8 July, 1871^ c. 230, g 72, v. 15, p. 210.
commissioner of patents, 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; and such officer shall give the
depositor a receipt or certificate of deposit
therefor. All money received at the patent
office, for any purpose, or from any source
whatever, shall be paid into the treasury as re-
ceived, without any deduction whatever." 1
Refunding.
SEC. 4936. The treasurer of the United
States is authorized to pay back any sum or
sums of money to any person who has through
mistake paid the same into the treasury, or to
any receiver or depositary, to the credit of the
treasury, as for fees accruing at the patent
office, upon a certificate thereof being made to
the treasurer by the commissioner of patents. 8
TRADE-MARK.
An Act to Antborize the Registration
f Trade-Marks and Protect the Same.
Approved March 3, 1*81.
Be it enacted by the Senate and House oj
Representatives of the United States in Con-
gress assembled, That owners of trade -marks
used in commerce with foreign nations or with
the Indian tribes, provided such owners shall
be domiciled in the United States or located
in any foreign country or tribes, which, by
treaty, convention, or law, affords similar priv-
ileges to citizens of the United States, may ob-
tain registration of such trade- marks by com-
plying with the following requirements :
First. By causing to be recorded in the
Patent Office a statement specifying name,
domicile, location, and citizenship of the party
applying ; the class of merchandise, and the par-
ticular description of goods comprised in such
class to which the parti culartrade-mark has been
appropriated ; a description of the trade-mark
itself, with fac similes thereof, and a statement
of the mode in which the same is applied and
affixed to goods, and the length of time during
which the trade-mark has been used.
Second. By paying into the Treasury of the
United States the sum of twenty-five dollars,
and complying with such regulations as may be
prescribed by the Commissioner of Patents.
SEC. 2. That the application prescribed in the
foregoing section must, in order to create any
right whatever in favor of the party filing it, be
accompanied by a written declaration verified by
the person, or by a member of a firm, or by an
officer of a corporation applying, to the effect
that such party has at the time a right to the
use of the trade-mark sought to be registered,
and that no other person, firm or corporation
has the right to such use, either in the identical
form or in any such near resemblance thereto
as might be calculated to deceive ; that such
trade -mark is used in commerce with foreign
nations or Indian tribes, as above indicated ;
*-Id. ? 73. a-ld.?74. b-Id ?76. c-Id. 68, p. 209:
? 75. P 2I : 2 4 March, 1871, c. 5, \ i, v. 17, p. 3. d-8
July, 1870, c. 230, J 69, v. 16, p. 209. e-Id. { 70.
PATENTS TRADE MARKS.
and that the description and fac-similes pre-
sented for registry truly represent the trade-
mark sought to be registered.
SEC. 3. That the time of the receipt of any
such application shall be noted and recorded.
But no alleged trade-mark shall be registered
unless the same appear to be lawfully used as
such by the applicant in foreign commerce or
commerce with Indian tribes, as above men-
tioned, or is within the provision 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 regis-
tered or known trade-mark owned by another,
and appropriate to the same class of merchan-
dise, or which so nearly resembles some other
person's lawful trade-mark as to be likely to
cause confusion or mistake in the mind of the
public, or to deceive purchasers. In an appli-
cation for registration the Commissioner of
Patents shall decide the presumptive lawfulness
of claim to the alleged trade-mark ; and in
any dispute between an applicant and a pre-
vious registrant, or between applicants, he shall
follow, so far as the same may be applicable,
the practice of courts of equity of the United
States in analogous cases.
SEC. 4. That certificates of registry of trade-
marks shall be issued in the name of the
United States of America, under the seal of
the Department of the Interior, and shall be
signed by the Commissioner of Patents, and a
record thereof, together with printed copies of
the specifications, shall be kept in books for
that purpose. Copies of trade-marks and of
statements and declarations filed therewith,
and certificates of registry so signed and sealed,
shall be evidence in any suit in which such
trade-marks shall be brought in controversy.
SEC. 5. That a certificate of registry shall
remain in force for thirty years from this date,
except in cases where the trade-mark is claimed
for and applied to articles not manufactured in
this country, and in which it receives protection
under the laws of a foreign country for a shorter
period, in which case it shall cease to have any
force in this country by virtue of this act at the
time that such trade-mark ceases to be exclusive
property elsewhere. At any time during the
six months prior to the expiration of the term
of thirty years such registration may be
renewed on the same terms and for a like
period.
SEC. 6. That applicants for registration
under this act shall be credited for any fee or
part of a fee heretofore paid into the Treasury
of the United States with intent to procure
protection for the same trade-mark.
SEC. 7. That registration of a trade-mark
shall be prima facie evidence of ownership.
Any person who shall reproduce, counterfeit,
copy, or colorably imitate any trade-mark
fegistered under this act, and affix the same to
merchandise of substantially the same descrip-
tive properties as those described in the regis-
tration, shall b liable to an action on the case
for damages for the wrongful use of said
trade-mark at the suit of the owner thereof;
37
and the party aggrieved shall also have his
remedy according to the course of equity to
enjoin the wrongful use of such trade-mark
used in foreign commerce or commerce with
Indian tribes, as aforesaid, and to recover com-
pensation therefor in any court having jurisdic-
tion over the person guilty of such wrongful
act ; and courts of the United States shall have
original and appellate jurisdiction in such cases
without regard to the amount in controversy.
SEC. 8. That no action or suit shall be main-
tained under the provisions of this act in any
case when the trade-mark is used in any un-
lawful business or upon any article injurious
in itself, or which mark has been used with
the design of deceiving the public in the
purchase of merchandise, or unaer any certifi
cate of registry fraudulently obtained.
SEC. 9. That any person who shall procure
the registry of a trade-mark, or of himself as
the owner of a trade-mark, or an entry respect-
ing a trade-mark, in the office of the Commis-
sioner of Patents, by a false or fraudulent
representation or declaratien, orally or in writ
mg, or by any fraudulent means, shall be
liable to pay any damages sustained in conse-
quence thereof to the injured party, to be
recovered in an action on the case.
SEC. 10. That nothing in this act shall pre-
vent, lessen, impeach, or avoid any remedy at
law or in equity which any party aggrieved by
any wrongful use of any trade-mark might
have had if the provisions of this act had not
been passed.
SEC. ii. That nothing in this act shall be
construed as unfavorably affecting a claim to a
trade-mark after the term of registration shall
have expired; nor to give cognizance to any
court of the United States in an action or suit
between citizens of the same State, unless the
trade -mark in controversy is used on goods
intended to be transported to a foreign coun-
try, or in lawful commercial intercourse with
an Indian tribe.
SEC. 12. That the Commissioner of Patents
is authorized to make rules and regulations and
prescribe forms for the transfer of the right t
use trade-marks and for recording such trans*
fers in his office.
SEC. 13. That citizens and residents of this
country wishing the protection of trade marks
in any foreign country the laws of which re-
quire registration here as a condition precedent
to getting such protection there may register
their trade-marks for that purpose as is above
allowed to foreigners, and have certificate
thereof from the Patent Office.
An Act Approved August 5, 1882.
Be it enacted by the Senate and House of
Representatives of the United Slates of America
in Congress assembled, That nothing contained
in the law entitled "An act to authorize the
registration of trade-marks and protect the
same," approved March 3, 1881, shall prevent
the registry of any lawful trade-mark rightfully
used by the applicant in foreign commerce or
commerce with Indian tribes at the time of the
passage of said act.
576
PATENTS.
Infringement of Copyrights.
No person shall maintain an action for the
infringement of his copyright unless he shall
give notice thereof by inserting in the several
copies of every edition published, on the title
page or the page immediately following, if
it be a book ; or if a map, chart, musical
composition, print, cut, engraving, photograph,
painting, drawing, chromo, statue, statuary, or
model or design intended to be perfected and
completed as a work of the fine arts, by in-
scribing 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 the Librarian of
Congress, at Washington;" or, at his option,
the word " Copyright," together with the year
the copyright was entered, and the name of
the party by whom it was taken out ; thus
" Copyright, 18 , by A. B."
Copyright Fees.
SEC. 2. That for recording and certifying
any instrument of writing for the assignment
of a copyright, the librarian of Congress shall
receive from the persons to whom the service
is rendered, one dollar ; and for every copy of
an assignment, one dollar; said fee to cover, in
either case, a certificate of the record, under
seal of the librarian of Congress ; and all fees
so received shall be paid into the treasury of
the United States.
"Engraving," "Cat," and "Print."
Other Prints and Labels. Commis-
sioner Supervision of Fees.
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 regula-
tions 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,
lo 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 first day of August, eighteen hundred
and seventy-four.
Approved, June 18, 1874.
REPEAL PROVISIONS.
'What Revised Statutes Embrace.
TITLE LXXIV., Rev. Stat., p. 1091 :
SEC. 5595. The foregoing seventy-three titles
embrace the statutes of the United States, gen-
eral and permanent in their nature, in force on
the 1st day of December, one thousand eight
hundred and seventy-three, as revised and
consolidated by commissioners appointed under
an act of Congress, and the same shall be desig-
nated and cited, as the Revised Statutes of the
United States.
Repeal of Acts Embraced in Revision.
SEC. 5596. All acts of Congress passed prior
to said first day of December, one thousand
eight hundred and seventy-three, any portion
of which is embraced in any section of said
revision, are hereby repealed, and the section
applicable thereto shall be in force in lieu
thereof; all parts of such acts, not contained
in such revision, having been repealed or
superseded by subsequent acts, or not being
general and permanent in their nature : Pro-
vided, That the incorporation into said revision
of any general and permanent provision, taken
from an act making appropriations, or from an
act containing other provisions of a private,
local, or temporary character, shall not repeal,
or in any way affect any appropriation, or any
provision of a private, local, or temporary char-
acter, contained in any of said acts, but the same
shall remain in force; and all acts of Congress
passed prior to said last-named day, no part of
which are embraced in said revision, shall not
be affected or changed by its enactment.
Accrued Rights Reserved.
SEC. 5597. The repeal of the several acts
embraced in said revision shall not affect any
act done, or any right accruing or accrued, or
any suit or proceeding had or commenced in
any civil cause before the said repeal, but all
rights and liabilities under said acts shall con-
tinue, and may be enforced in the same manner,
as if said repeal had not been made ; nor shall
said repeal in any manner affect the right to any
office, or change the term or tenure thereof.
Prosecutions and Punishments.
SEC. 5598. All offences committed, and all
penalties or forfeitures incurred under any
statute embraced in said revision prior to said
repeal, may be prosecuted and punished in the
same manner and with the same effect as if said
repeal had not been made.
Acts of Limitation.
SEC. 5599. All acts of limitation, whether
applicable to civil causes and proceedings, or
to the prosecution of offences, or for the re-
covery of penalties or forfeitures, embraced in
said revision and covered by said repeal, shall
not be affected thereby, but all suits, proceed-
ings or prosecutions, whether civil or criminal,
for causes arising or acts done or committed
prior to said repeal, may be commenced and
prosecuted within the same time as if said re-
peal kad not been made.
Arrangement and Classification of
Sections.
SEC. 5600. The arrangement and classifica-
tion of the several sections of the revision have
been made for the purpose of a more conven-
ient and orderly arrangement of the same, and
therefore no inference or presumption of a
legislative construction is to be drawn by rea-
son of the title under which any particular
section is placed.
PATENTS.
577
Acts Passed Since December 1, 1873,
not Affected.
StC. 5601. The enactment of the said re-
vision is not to affect or repeal any act of Con-
gress passed since the ist day of December,
one thousand eight hundred and seventy-three,
and all acts passed since that date are to have
full effect as if passed after the enactment of
this revision, and so far as such acts vary from,
or conflict with, any provision contained in said
revision, they are to have effect as subsequent
statutes, and as repealing any portion of the
revision inconsistent therewith.
Approved June 22, 1874.
Penalty for Selling or Offering for Sale
Ooods Bearing a Fraudulent Trade-
Mark.
Every person who shall with intent to de-
fraud, deal in or sell, or keep or offer for sale,
or cause or procure the sale of, any goods of
substantially the same descriptive properties as
those referred to in the registration of any
trade-mark, pursuant to the statutes of the
United States, to which, or to the package in
which the same are put up, is fraudulently
affixed said trade-mark, or any colorable imita-
tion thereof, calculated to deceive the public,
knowing the same to be counterfeit or not the
genuine goods referred to in said registration,
shall, on conviction thereof, be punished by fine
not exceeding one thousand dollars, or im-
prisonment not more than two years, or both
such fine and imprisonment.
Penalty for Affixing Fraudulent
Trade-Mark.
SEC. 2. That every person who fraudulently
affixes, or causes or procures to be fraudulently
affixed, any trade-mark registered pursuant to
the statutes of the United States, or any color-
able imitation thereof, calculated to deceive
the public, to any goods, of substantially the
same descriptive properties as those referred to
in said registration, or to the package in
which they are put up, knowing the same to be
counterfeit, or not the genuine goods, referred
to in said registration, shall, on conviction
thereof, be punished as prescribed in the first
section of this act.
Penalty for Putting up Packages
with Fraudulent Trade-Mark.
SEC. 3. That every person who fraudulently
fills, or causes or procures to be fraudulently
filled, any package to which is affixed any
trade-mark, registered pursuant to the statutes
of the United States, or any colorable imita-
tion thereof, calculated to deceive the public,
with any goods of substantially the same de-
scriptive properties as those referred to in said
registration, knowing the same to be counter-
feit, or not the genuine goods referred to in
said registration, shall, on conviction thereof,
be punished as prescribed in the first section of
this act.
Manufacturing Fraudulent Trade-
Mark.
SEC. 4. That any person or persons who
shall, with intent to defraud any person or per-
sons, knowingly and wilfully cast, engrave, or
manufacture, or have in his, her, or their pos-
session, or buy, sell, offer for sate, or deal in,
any die or dies, plate or plates, brand or brands,
engraving or engravings, on wood, stone, metal,
or other substance, moulds, or any false repre-
sentation, likeness, copy, or colorable imitation
of any die, plate, brand, engraving, or mould
of any private label, brand, stamp, wrapper,
engraving on paper or other substance, or trade-
mark, registered pursuant to the statutes of the
United States, shall, upon conviction thereof,
be punished as prescribed in the first section of
this act.
Dealing in Fraudulent Trade-Mark.
SEC. 5. That any person or persons who
shall, with intent to defraud any person or per-
sons, knowingly and wilfully make, forge, or
counterfeit, or have in his, her, or their posses-
sion, or buy, sell, offer for sale, or deal in, any
representation, likeness, similitude, copy, or
colorable imitation of any private label, brand,
stamp, wrapper, engraving, mould, or trade-
mark, registered pursuant to the statutes of the
United States, shall, upon conviction thereof,
be punished as prescribed in the first section of
this act.
Possession of Empty Box or Package
Having Registered Trade-Mark.
SEC. 6. That any person who shall, with in-
tent to injure or defraud the owner of any trade-
mark, or any other person lawfully entitled to
use or protect the same, buy, sell, offer for sale,
deal in or have in his possession any used or
empty box, envelope, wrapper, case, bottle, or
other package, to which is affixed, so that the
same may be obliterated without substantial
injury to such box or other thing aforesaid, any
trade-mark, registered pursuant to the statutes
of the United States, not so defaced, erased,
obliterated, and destroyed as to prevent its
fraudulent use, shall, on conviction thereof, be
punished as prescribed in the first section of
this act.
Proceedings to Detect Fraudulent
Trade-Mark Jurisdiction of United
States Courts.
SEC. 7. That if the owner of any trade-mark,
registered pursuant to the statutes of the United
States, or his agent, make oath, in writing, that
he has reason to believe, and does believe, that
any counterfeit dies, plates, brands, engravings
on wood, stone, metal, or other substance, or
moulds of his said registered trade-mark, are
in the possession of any person, with intent to
use the same for the purpose of deception and
fraud, or makes such oaths that any counter-
feits or colorable imitations of his said trade-
mark, label, brand, stamp, wrapper, engraving
on paper or other substance, or empty box,
envelope, wrapper, case, bottle, or other pack-
age, to which is affixed said registered trade-
mark not so defaced, erased, obliterated, and
destroyed as to prevent its fraudulent use, are
in the possession of any person, with intent to
use the same for the purpose of deception and
fraud, then the several judges of the circuit and
district courts of the United States and the
commissioners of the circuit courts may, within
their respective jurisdictions, proceed under the
578
PATENTS.
law relating to search-warrants, and may issue
a search-warrant authorizing and directing the
marshal of the United States for the proper
district to search for and seize all said counter-
feit dies, plates, brands, engravings on wood,
stone, metal, or other substance, moulds, and
said counterfeit trade-marks, colorable imita-
tions thereof, labels, brands, stamps, wrappers,
engravings on paper, or other substance, and
said empty boxes, envelopes, wrappers, cases,
bodies, or other packages that can be found ;
and upon satisfactory proof being made that
said counterfeit dies, plates, brands, engravings
on wood, stone, metal, or other substance,
moulds, counterfeit trade-marks, colorable imi-
tations thereof, labels, brands, stamps, wrap-
pers, engravings on paper or other substance,
empty boxes, envelopes, wrappers, cases, bot-
tles, or other packages, are to be used by the
holder or owner for the purposes of deception
and fraud, that any of said judges shall have
full power to order all said counterfeit dies,
plates, brands, engravings on wood, stone,
metal, or other substance, moulds, counterfeit
trade-marks, colorable imitations thereof, labels,
brands, stamps, wrappers, engravings on paper
or other substance, empty boxes, envelopes,
wrappers, cases, bottles, or other packages, to
be publicly destroyed.
Penalty for Abetting: Violation of
Preceding Sections.
SEC. 8. That any person who shall, with in-
tent to defraud any person or persons, know-
ingly and wilfully aid or abet in the violation
of any of the provisions of this act, shall, upon
conviction thereof, be punished by a fine not
exceeding five hundred dollars, or imprison-
ment not more than one year, or both such
fine and imprisonment.
Approved August 14, 1876.
RULES OF PRACTICE
In tbe United States Patent Office.
No. of
Paragraph.
Abandonment of application by neglect
to complete or prosecute it . -7, 39, 127
by filing a formal one .... 27
by non-payment of final fee . . 38
may be proved on interference . 41, 51
Administrators. (See Executors.)
Affidavits to support application to be
received only as to practicability . 31
Amendments, when they may be made 31, 60
only on Commissioner's order after
second rejection .... 31
and recommendation of examiner
or board 31
must introduce nothing new . . 32
enlarging claim must be sworn to . xi
not received pending interference . 60
Appeals, regulation respecting hearings
on them 49
case re-opened after decision only
on Commissioner's order . . 45
to examiners-in-chief in ex parte
cases 4 3 -45
when they may be taken . -. . . 42, 44
course of proceeding prescribed . 42
all preliminary questions to be set-
tled first 44
reasons of appeal to be filed, of what
character 42
examiner to answer before hearing 42
oral hearing, when allowed, and
hew conducted . . . . 42, 49
No. of
Paragraph
Appeals, to what extent the decision
may be revised 43
to examiners-in-chief in interfer-
ence cases 48, 55
reasons of appeal and brief required 48
to Commissioner on preliminary
questions from examiner . . 44
from examiner of trade-marks . 86
from examiners-in-chief, regula-
tions 46, 48
on motions in contested cases . 50
from Commissioner to supreme
court of the District of Columbia,
regulations to be observed . . 47)
when to be heard .... 47
none in interference cases ... 48
Applications, requisites to filing . . 7
when application takes date . . 7
by whom to be made .... 8
in cases of reissues .... 62
how to be written and signed . . 9
alterations in them, how noted . 9
to contain but one invention, unless
connected 15
if more, such to be struck out as
applicant elects , 16
may be prosecuted by correspond-
ence or attorney .... 30
or by assignee 30
abandoned if not completed or
prosecuted for two years . . 7, 39, 127
how long considered pending . . 127
kept secret while pending . . 124
except as required by other business I2U
when patented or abandoned, in-
formation given respecting them 125, 127
when patented or abandoned, mod-
els open for general inspection . 126
specifications and drawings also
when called for .... 126
may be put in interference when
renewed 41,51
may be divided when in interference 61
upon what conditions ... *<
for reissue, what must accompany . 62
for registration of trade-mark . . 84
Arguments, oral, when heard, and at
what length 42, 49
not permitted before examiner in
extension cases 78
against extensions from parties not
remonstrants 75
Assignee, patent, when issued to . . 2, loo
to prosecute application jointly with
inventor, or severally, according
to interest 30
when to hold correspondence with
the office 120
Assignments, what is requisite to make
them valid 98
of the whole interest of an undi-
vided part thereof .... 98
grants of territorial rights . . 102
both must be recorded in the Patent
Office ic3
patent may then issue to assignee . 100
not unless recorded when final fee
is paid 100
correspondence to be with assignee
or his agent 101, 120
conveyances of rights not exclusive,
licenses, etc 104
need not be recorded .... 104
what papers respecting assign-
ments will not be recorded . . 99
of patents and trade-marks, when
to be recorded .... 15, xoo, 103
of trade-marks 15
Attorneys may be employed to prose-
cute applications 30
recommendations and suggestions
as to employing them . . . 131
cannot inspect papers without a
power. . . ." . . . 133
correspondence usually to be with
them only xao
PATENTS.
579
No. f
Paragraph.
Attorneys, if that is not satisfactory,
power to be revoked .... xai
appearing for conflicting parties,
they are to be notified . . .
may be restricted, or excluded for
misconduct .....
Briefs, required in interference cases .
Caveat, how filed, and by whom . .
must embrace but one invention .
how fully it must be described . .
to be accompanied by drawings
when practicable ....
oath required, what it must contain
cannot be withdrawn or altered .
additional papers restricted to orig-
inal invention .....
copies of it will be furnished . .
may be-renewed .....
notice of conflicting application .
counter application to be filed in
three months .....
interference to be declared . .
must be filed, or a copy, if relied on
as proof ..... Sec. 6, 113
Claim in distinct form must follow spe-
cification . ...... 13
not in conflict in interference may
be withdrawn .....
Commissioner, appeals to, from exam-
iners . ......
examiners-in-chief ....
examiners of trade-marks . .
appeals to, on contested motions .
appeals from, to the supreme court
of District of Columbia ...
Composition of matter, specimens when
required .......
Copies of designs must accompany ap-
plications .......
trade-marks also .....
will be furnished of papers to be
amended ......
caveat papers to the party . .
of specifications, drawings, and
patents ......
made on parchment if required .
from works in the library . .
of what will be furnished in inter-
ference cases .....
testimony in interference and ex-
tension cases .....
orders for, must specify particulars
Correspondence sufficient for prosecut-
ing applications .....
regulations for conducting it . .
must be addressed to the Commis-
sioner of Patents ....
a separate letter required for each
distinct matter .....
Office will act only on written com-
munications .....
to be with either party, assignee or
attorney only .....
postage must be prepaid after July
1,1873 ....... H3
receipt of assignments for record
not acknowledged .... 105
Date of patent ...... 38
Depositions, how to be drawn up . 114, 115-118
to be certified by the magistrate,
and how .... Sec. 3, 113
how to be closed and sent to the
Office ...... Sec. 3, 113
the printing of them required in
general ......
Designs, patents for, and to whom
granted ...... .
how long to run ....
proceedings on applications . .
model, not required, when . .
if illustrated by photograph or en-
graving, how mounted ...
ten extra copies then required . .
if by drawing must conform to rules
for drawings .....
except in certain cases ,
133
134
48
93
95
95
96
96
93
93, 93
93
93
61
44-50
46-48
86
50
47, 48
24
83
9
37
96
126
126
136
61
118
107
30
119-130
119
119
130
101, 120
118
79
80
81
82
83
83
83
No. of
Paragraph.
Disclaimers, for what made, and by
whom ....... 68
how prepared, and the effect they
have 68
Drawings to be furnished with applica-
tion when practicable . . . . 18
new, when required on reissues . 33
must be referred to in the specifica-
tion 13
having them prepared by artists ad-
vised 33
three editions to be printed and pub-
lished by the Office .... 19
process by which they are prepared 19
original drawings must be adapted
to the process 19
quality of paper and ink required . a, c, 19
dimensions and arrangement of
figures b, h, 19
artistic character of work . . . c,d,ig
rules to be observed . . . . d, 19
scales e i*9
reference letters, rules as to . . j, 19
title, signatures, and arrangement . g, 19
figure for the Official Gazette . . h, 19
to bear no irrelevant figure or in-
scription 7', 19
these rules to be strictly enforced,
and how 20
exceptions as to designs and trade
marks i, 19
specimen drawings furnished on re-
quest ...... 21
to be amended on reissue by model
only; exception . . . 64
Evidence, Office records, and books
may be used on hearing. . Sec. 6, 113
notice of using them to be given Sec. 6, 113
printing of testimony and argument
recommended 118
Examination of applications, in what
order pursued 29
renewed after first rejection, if re-
quested 33
objections to form to be first consid-
ered 39
of original claim renewed on appli-
cation for reissue .... 67
of papers not permitted to attorney
without power 133
Examiners, appeals from . . . 42-45, 48, 13
Exceptions to testimony, when to be
taken 116
notice to be given to Office and ad-
verse party 116
what will be allowed .... 116
Executors and administrators, when to
sign application and oath ... 8
when patent shall issue to them . 3
Extensions, when petition must be filed 70
an application required for each di-
vision of patent .... 69
cannot be granted after patent has
expired 70
what statements must accompany
petition 72
when they must be furnished . . 73
questions to be considered on the
hearing 73
proof respecting them required . 73
opposition, how made and what
must accompany it .... 71
notice of it, and reasons to be fur-
nished petitioner . . . . 71, 75
and filed in the Office . . . . 71, 75
testimony in contested cases . . 74, 78
notice of taking testimony . . 74
time of closing, how determined . 77
how to be served 78
when ex parte will be received Sec. 4, 113
referred to examiner, and his report 78
no hearing before him ... 78
hearing 49
hearing adverse parties who have
not filed opposition .... 75
have precedence in examination , ay
PATENTS.
No. of
Paragraph.
Fees, tariff ot, and charges . . . 107
to be paid in advance .... 106
in what money izo
to what official they may be paid . 109
if sent by mail, at the owner's risk . no
on appeal to the supreme court of
the District of Columbia . . 47
final, on grant of patent, when to be
paid 108
consequence of default . . . 108
Final fee on grant of patent, when to
be paid 108
consequence of default . . . 108
Foreign patent, effect of, on United
States patent for same invention . 89
application here should mention it
and its date 91
has precedence in order of exam-
ination
trict of Columbia .... 47
Information furnished on rejections . 33-35
in interferences 61
not as to pending applications . . 124
exception when necessary for other
business 128
as to rejected and abandoned appli-
cations 135-127
not as to merit of inventions or on
law points 129
Inspection of papers restricted after ap-
plication rejected
Intercourse between the Office and its
suitors should be in writing .
personal with examiners di
scour-
13, 133
33
59
5i
5
41-51
53
aged
Interferences, in what cases declared .
only when the subject is found pat-
entable
the claims must be complete for is-
suing patent
the issue must be clearly denned
may be declared to ascertain aban-
donment
preliminary to be first declared. (See
Preliminary Statements.)
judgment in default thereof or
founded on its contents ... 53
further proceedings .... 53, 54
notice of interference to be given,
and how 56
presumption in favor of first appli-
cant 57
order of taking testimony ... 57
appeal to examiners-in-chief and
Commissioner 48, 55, 59
in what cases dissolved ... 59
before whom motion to dissolve is
heard 59
specifications, how far open to in-
spection 61
claims not in conflict may be with-
drawn, etc 61
second, on what showing granted . 60
Joint inventors, what patents they may
have 3
Label circular in relation to registra-
tion. (Appendix.)
Letters to the Office. (See Correspond-
ence.)
Library, rules for consulting . . . 136
Licenses under patent need not be re-
corded 104
Mistake, moneys paid under, when re-
funded in
Model, when required, and how to be
made 24, 25
must exhibit every feature claimed 24
working, desirable .... 26
when returned to applicant . . 27, 28
may be amended on reissue by
drawing only ; exception . . $4
No. of
Paragraph.
Models of designs, when dispensed with 8a
open to general inspection in pat-
ented and abandoned cases . . 12!
Moneys, how to bo paid, and to
whom 106, 109, no
in what
paid by mistake, when refunded
if sent by mail, are at the owner's
no
in
risk no
Motions in contested cases, regulations 50
before whom heard .... 50
appeal to Commissioner ... 50
to postpot.c tiling preliminary state-
ment 53
hearing in extension cases . . 78
taking testimony in the same . 78
in interference cases ... 58
generally Sec. 5, 113
Motion to dissolve interference, before
whom heard 59
New trials in interference cases, on
what showing granted .... 60
Notice of appeal to supreme court of
District of Columbia .... 47
motions in contested cases . . 50
interferences 56
to caveator of conflicting application 92, 93
opposition to extension and service 71, 75
taking testimony in extension cases
and service . . . . 74, 77
taking testimony generally and ser-
vice Sec. i, 113
what proof of service is required Sec. 2, 113
and proof of service to be attached
to the deposition . . . Sec. 2, 113
exceptions to testimony .
to conflicting parties who have the
same attorney
Oath to application, by whom made
and before whom
supplemental to amendment .
in extension cases, what required .
when invention is patented abroad .
for caveat . . . . .".'
Patents, who may obtain .
in case the inventor dies . . .
in case of joint inventors .
to assignee
for what causes granted or refused .
proceedings to obtain .
for inv
iventions patented abroad
withheld for non-payment of final
fee .......
granted on renewed application
when dated ......
reissued, granted for the remainder
of the original term . . . .
division of, on reissue . . ' .
for designs. (See Designs.)
cannot be extended after expiration
returned when reissue is refused
when they expire, in case of foreign
Pending cases, what are such . . .
Personal attendance of suitors unneces-
sary ...... . .
Preliminary statements ....
what they should contain, and how
be prepared . . .
when open to inspection .
judgment for default thereof or
founded thereon ....
proof precluded of earlier invention
than they claim ....
not evidence for the signer
motion to postpone time for filing .
Records of Office and books in library
116
133
8, 10, 62
II
72
90
3
2,100
4-6
7-37
i, 7
38, 108
39-41,108
38
65
56
69,
8g
127
30
53
53
53
53
53
53
53
may be used as evidence
notice of intent to use them to be
Sec 6, 113
given
Re-examination of applications
Reference letters in drawing; direc-
tions ..... . .
References, specific, to be furnished if
demanded .......
copies of, to be furnished if re-
quested . . , . .
Sec. 6, 113
33
34
J4
PATENTS.
No. of
Paragraph.
References, if rejected cases, all needful
information given 35
Rehearing of interferences, on what
showing granted 60
Reissues, to whom granted, and in
what cases 6a
when the inventor or assignee must
sign application .... 63
what must accompany the petition 63
the original patent must be surren-
dered 67
loss of original patent must be
shown, and a copy furnished . 67
patent may be returned if any claim
is refused 67
what may be embraced ... 64
no new matter to be introduced into
specification 64
drawings and model to be amended
only by each other ; exceptions . 64
take precedence in order of exami-
nation . . 39, 65
original claims subject to re-exami-
nation 67
may be in several divisions . . 66
no division to be issued till all are
decided 66
when the reissued patents expire . 65
Rejected cases, how renewed . . . 39-41
Rejection of application, applicant to
be notified 33. 34
Renewed applications .... 39, 41
Service of notices . 50, 71, 75, Sees, x, a, 113
Signatures to petition and specification 8, 9, 17
drawings g, 19
Specifications, what is required in them 13-17
must point out new improvements
specially 14
and distinguish between what is
new and old 14
must be followed by a distinct claim 13
how signed and witnessed . . 17
must contain but one invention, un-
less connected 15
if more, such to be struck out as ap-
plicant elects 16
to be amended and revised as exam-
iner requires 36
will not be returned for that pur-
pose 37
copies will be furnished ... 37
each division on a reissue to have a
distinct one 66
for a design, requisites ... 8z
for a trade-mark, requisites . . 84
aid of counsel in preparing them
recommended ..... 131
Specimen drawings furnished on re-
quest 31
Specimens of compositions when re-
quired 34
Subpoenas for witnesses to be issued by
clerks of United States courts . . 117
Substitution of attorney made only by
one expressly authorized . . . 133
Supreme court of the District of Colum-
bia, appeals to 47
how to institute and prosecute ap-
peals to 47
appeals to, do not lie in interference
cases ....... 48
Testimony in interference cases, in
what order to be taken .... 57
postponement of taking, how ob-
tained 58
in extension cases, what is required 73
when to be taken, and by whom . 74, 76
when ex parte depositions may be
used Sec. 4, 113
notice of taking, and service . . 77
closing the same, and postpone-
ments 78
In general, rules for taking . . 113
what notice to be given of taking,
and how served . . . Sec. 1, 113
what proof of service required . Sec. 3, 1x3
No. of
Paragraph
Testimony muat be attached to the de-
position Sec 2 in
depositions to be certified by magis-
trate, and how .... Sec. 3, 113
how to be closed and forwarded Sec. 3, xij
rules for drawing them up . . 114, 115
if prevented from being taken, pro-
ceedings for relief . . . Sec. 5, 113
caveat must be filed, if relied on or
a copy Sec. 6, 113
records of the Office and books in
the library made evidence . Sec. 6, 113
notice must be given previously Sec. 6, 113
depositions not pursuant to the
rules inadmissible .... xi6
exceptions to depositions, when al-
lowed jig
when they must be taken . . . 116
notice of them to be given immedi-
ately n
when open to inspection, and copies
furnished u8
printing of them required in general 118
attendance of witnesses, how se-
cured H j
Trade-marks, who may obtain exclu-
sive title to i
what he mast do to obtain it . . a-8
how long (he right will endure . 14
characteristics essential to their
validity .... . ii
may be illustrated by photographs,
etc g
ten extra copies required In each
case g
to follow the same rules as in de-
sign cases g
certain exceptions .... Sec /, 19
assignment and fees .... 15
when to be recorded ... 15
Withdrawing papers not allowed . 37, 122
Witnesses, their attendance, how se-
cured 117
The following information and regulations,
designed to be in strict accordance with the
revised, consolidated, and amended law relat-
ing to patents for inventions and designs, and
to trade-marks, are published for gratuitous
distribution.
Copious forms to which inventors and attor-
neys are recommended to conform as nearly as
possible, will be found in an appendix.
Printed copies of the revised and amended
law may also be obtained by applying to the
patent office.
WHO MAY OBTAIN A PATENT.
1. Any person, whether citizen or alien,
being the original and first inventor or discov-
erer of any new and useful art, machine,
manufacture, or composition of matter, or any
new and useful improvement thereof, may ob-
tain a patent for his invention or discovery,
subject to the conditions as to public use and
abandonment hereinafter named.
Who, if Inventor dies or Assigns.
2. In case of the death of the inventor, the
patent may be applied for by, and will issue
to, his executor or administrator. In case of
an assignment of the whole interest in the
invention, or of the whole interest in the patent
if granted, the patent will issue to the as-
signee, upon the request of the latter, or his
assignor; and so, if the assignee holds an
undivided part interest, the patent will, upon a
similar request, issue jointly to him and the
PATENTS.
inventor; but the assignment must first have
been entered of record, and at a day not later
than the date of the payment of the final fee ;
and the application must be duly made, and the
specification sworn to by the inventor.
Of Joint Inventors.
3. Joint inventors are entitled to a joint
patent ; neither can claim one separately ; but
the independent inventors of separate and in-
dependent improvements in the same machine
cannot obtain a joint patent for their separate
inventions; nor does the fact that one man
furnishes the capital and the other makes the
invention entitle them to take out a joint patent.
What will Bar a Patent.
4. A patent will not be granted to an appli-
cant if what he claims as new has been, before
his invention, patented or described in any
printed publication in this or any foreign
country, or been invented or discovered in this
country, nor if he has once abandoned his in-
vention, nor if it has been in public use or on
sale more than two years previous to his appli-
cation.
When Knowledge of Invention Abroad
is no Bar.
5. If it appears that the inventor, at the time
of making his application, believes himself to
be the first inventor or discoverer, a patent will
not be refused on account of the invention or
discovery, or any part thereof, having been
known or used in any foreign country before
his invention or discovery thereof, it not ap-
pearing that the same, or any substantial part
thereof, had before been patented or described
in any printed publication.
Of Prior Knowledge or Use.
6. Merely conceiving the idea of an im-
provement or machine is not an " invention "
or " discovery." The invention must have
been reduced to a practical form, either by the
construction of the machine itself, or of a
model thereof, or by making a drawing of it,
or by such disclosure of its exact character that
a mechanic, or one skilled in the art to which
it relates, can and does, from the description
given, construct the improvement, or a model
thereof, before it will prevent a subsequent in-
ventor from obtaining a patent.
JIOIK OF iMtorrroi \; TO OKTAI v
A PATENT.
APPLICATION.
What is required in an Application.
7. No application for a patent can be placed
upon the files for examination until the fee is
paid, the specification and the petition and
oath are filed, and the drawings and a model
or specimens (when required) are furnished.
The application must be completed and pre-
pared for examination within two years after
the filing of the petition ; and in default
thereof, or upon failure of the applicant to
prosecute the same within two years after any
action thereon, of which notice shall have been
mailed to him or his agent, it shall be regarded
as abandoned, unless it be shown to the satis-
faction of the commissioner, that such delay was
unavoidable,
It is desirable that everything necessary to
make the application complete should be depos-
ited in the office at the same time. If other
wise, a letter should accompany each part,
stating to what application it belongs, and giv-
ing the date thereof.
When Application takes Date.
For all purposes of office practice, the date
of an application for a patent will be fixed at
the time when the first fee has been paid, an
acceptable drawing or model received, and a
specification, properly signed, witnessed, and
sworn to, filed. After such date, and during
the pendency of an application, either the
drawing or model (but not both at the same
time), may be withdrawn for correction, but
the specification will not be permitted to be
withdrawn for any purpose whatever.
Application and Oath, by Whom Made.
8. The application and oath must be made
by the actual inventor, if alive, even if the
patent is to issue to an assignee ; but where the
inventor is dead, the application and oath must
be made by his executor or administrator.
or Drawing; Applications.
9. The application must be in writing, in the
English language, and addressed to the com-
missioner of patents. The petition and speci-
fication must be separately signed by the ap-
plicant. The specification, claims, and all
amendments must be written in a fair, legible
hand; otherwise, the office may require them to
be printed; and all interlineations or erasures
should be clearly marked in a marginal or
foot-note written on the same sheet of paper.
All the papers constituting the application
should be attached together. Legal-cap paper
is deemed preferable, and a wide margin
should always be left upon the left-hand side
of the page.
Oath, and its Nature.
10. The applicant, if the inventor, must
make oath or affirmation that he does verily
believe himself to be the original and first in-
ventor or discoverer of the art, machine, manu-
facture, composition, or improvement for which
he solicits a patent ; that he does not know and
does not believe that the same was ever before
known or used ; and shall state of what coun-
try he is a citizen, and of what a resident. If
the application be made by an executor or ad-
ministrator, the form of the oath will be cor-
respondingly changed. The oath or affirma-
tion may be made before any person within the
United States, authorized by law to administer
oaths, or, when the applicant resides in a for-
eign country, before any minister, charge
d'affaires, consul, or commercial agent, hold-
ing commission under the government of the
United States, or before any notary public of
the foreign country in which the applicant may
be, the oath being attested in all cases, in this
and other countries, by the proper official seal
of such notary.
Oath to Amendments.
11. In case the applicant by amendment
seeks to introduce any claim or claims, not
PATENTS.
5*3
substantially embraced in the original affidavit,
he will be required to file a supplemental oa'.h
relative to the invention as covered by such
new or enlarged claim or claims; and such
supplemental oath must be upon the same
paper which contains the proposed amendment.
SPECIFICATION.
Specifications, their Requisites.
12. The specification is a written description
of the invention or discovery, and of the man-
ner and process of making, constructing, com-
pounding, and using the same, and is required
to be in such full, clear, concise, and exact
terms, avoiding unnecessary prolixity, 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, com-
pound, and use the same. It must be followed
by a specific and well-defined claim of the
part, improvement, or combination which the
applicant regards as his invention or discovery.
Further Requisites.
13. Where there are drawings, the specifica-
tion should refer by letters and figures to the
different parts ; and it must set forth the pre-
cise invention for which a patent is claimed,
explaining the principle thereof and the best
mode in which the applicant has contemplated
applying that principle, so as to distinguish it
from other inventions.
Specifications .Hnst Point Out Im-
provements.
14. In all applications for patents upon mere
improvements the specification must particu-
larly point out the part or parts to which the
improvement relates, and must by explicit
language distinguish between what is old and
what is claimed as the improvement, so that
the office and the public may understand ex-
actly for what the patent is granted ; and in
such cases the description and the drawings, as
well as the claims, should be confined to the
specific improvement and such parts as neces-
sarily co-operate with it.
Application Must Embrace bat one In-
vention.
15. Two or more separate and independent
inventions cannot be claimed in one applica-
tion ; but where several inventions relating to
the same subject are necessarily connected each
with the other, they may be so claimed.
If More, one Must be Elected.
16. If more than one invention is claimed
in a single application, and they are found to
be of such a nature that a single patent may
not be issued to cover the whole, the office
will require the inventor to confine the descrip-
tion and claim of the pending application to
whichever invention he may elect; the other
inventions may be made the subject of separate
applications.
Specifications, How Signed and
Witnessed.
17. The specification must be signed by the
inventor, or by his executor or administrator,
and musl be attested by two witnesses. Full
names must be given, and all names, -whether of
applicants or witnesses ^ must be legibly -written.
DRAWINGS.
Drawings to be Furnished.
18. The applicant for a patent is required
by law to furnish a drawing of his invention,
where the nature of the case admits of it.
Three Editions Published by the
Office.
19. Three several editions of patent draw-
ings are printed and published : one for office
use, certified copies, etc., of the size and char-
acter of those attached to patents, the work
being about 6 by 9^ inches; one reduced to
half that scale, or one -fourth the surface, of
which four will be printed on a page to illus-
trate the volumes distributed to the courts, etc. ;
and one reduction to about the same scale
of a selected portion of each drawing, to illus-
trate the " Official Gazette."
By What Process Prepared.
This work will all be done by the photo-
lithographic or other analogous process, and in
consequence the character of each original
drawing must be brought as nearly as possible
to a uniform standard of excellence, suited to
the requirements of the process, and calculated
to give the best results, in the interests of in-
ventors, of the office, and of the public gen-
erally. The following rules will therefore be
rigidly enforced, and any departure from them
will be certain to cause delay in the examina-
tion of an application for letters patent.
Paper and Ink Required for Originals.
a. Drawings should be made upon paper
stiff enough to stand in the poitfolios, the sur-
face of which must be calendered and smooth.
" Two-sheet" bristol-board, or sheets cut from
Whatman's hot-pressed drawing-paper, "anti-
quarian " size, are recommended.
Indian ink of good quality, to the exclusion
of all other kinds of ink or color, must be em-
ployed, to secure perfectly black and solid work.
Dimensions.
b. The size of a sheet on which a drawing
is made should be exactly 10 by 15 inches.
One inch from its edges a single marginal line
is to be drawn, leaving the "sight" precisely 8
by 13 inches. Within this margin all work
and signatures must be included. One of the
smaller sides of the sheet is regarded as its top,
and, measuring downward from the marginal
line, a space of not less than i% inch is to be
left blank for the insertion of title, name, num-
ber, and date. The signatures will be placed
in a space left at the bottom of the sheet.
Quality of Work.
c. All drawings must be made with the peu
only, using the blackest Indian ink. Every
line and letter (signatures included) must be
absolutely black. This direction applies to all
lines, however fine, to shading, and to lines
representing cut surfaces in sectional views.
All lines must be clean, sharp, and solid, and
they must not be too fine or crowded. Surface
shading, when used, shoutd be left very open.
Sectional shading should be by oblique parallel
lines, which may be about one-twentieth of an
inch apart. The usual reduction will bring
them to about one-sixtieth of an inch dist.ir.Cft>
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.
<l-5 M. & S. 38 ; Yelv. 36. e-Co. Litt. 303 ; 5 Blackf.
557. f-2 Bulstr. 214 ; Ld. Raym. 1413. Jf-Steph. PI.
378-392 ; 16 Mass. 443 ; 12 Pick. 251 ; 3 Stew. 319 ; se
GF.NERAL STATUTES. h-i3 La. An. 147; 41 Me. 102;
7 Gray, 38 : 5 R. I. 235 ; 2 Bosw. 267 ; i Grant Cas.
359; 4 Johns. 241 ; 3 Miss. '704; 20 Id. 656; i Chitty
PI. 425; see 16 Tex. 114; 4 Iowa, 158. i-io S. & R.
229 ; 17 Texas, 52. j-4 Gower, 464. k-Story Eq. PI.
PRACTICE REAL PROPERTY.
Power. See AUTHORITY.
Power of Attorney. See AGENCY, "Attorneys
in Fact."
PRACTICE. See COPYRIGHTS ; PATENTS ; PLEAD-
INGS.
PRACTICE is the form, manner, and order in
which legal or equitable proceedings are in-
stituted, conducted, and concluded in the
various courts, whether civil, criminal, or
equitable, according to the rules prescribed by
the law and in such courts. It includes juris-
diction, limitation, parties, and pleading. A
settled, uniform, and long-continued practice,
without objection, is evidence of what the law
is; and such practice is based on principles
which are founded in justice and convenience."
Precedents. See AUTHORITY.
Pregnancy. See MEDICAL LAW.
Premeditation. See CRIMINAL LAW, "Inten-
tion," etc.
Premises. See CONVEYANCES, " Deeds, Leases,
Mortgages," etc.
Premium. See INSURANCE.
Presentment. See BILLS, BONDS, AND NOTES.
Presumptions. See EVIDENCE.
Price. See CONTRACTS.
Prima Facie. See EVIDENCE.
Principals. See AGENCY.
Promissory Aotes. See BILLS, BONDS, AND
NOTES.
Property. See PERSONAL PROPERTY; REAL
PROPERTY; ETC., ETC.
Proposals. See CONTRACTS.
Protest. See BILLS, BONDS, AND NOTES.
Proviso. See BONDS OR OBLIGATIONS, CONVEY-
ANCES, ETC.
Publisher. See COPYRIGHT.
Quack. See MEDICAL LAW, "Malpractice."
Question. See EVIDENCE.
Quickening. See MEDICAL LAW.
Quiet Eli joy ment. See CoNVEYANCES,"Deeds."
Quit Claim. See CONVEYANCES, " Deeds."
Quotations. See AUTHORITIES.
Kailway. See BAILMENTS.
Rape. See CRIMINAL LAW.
Ratification. See ACTS; AGENCY.
REAL PROPERTY. See BONDS, ETC. ; CON-
VEYANCES, ETC. ; PERSONAL PROPERTY.
REAL PROPERTY includes land and what-
ever is erected or growing thereon, and what-
ever is above or beneath the surface thereof,*
including houses standing and trees growing
upon the land but not chattels like stock upon
a farm, or furniture in a house. Houses and
even growing trees may acquire the character
of personal property ; and various chattels,
originally movable, may acquire the character
of real property. Thus a dwelling-house erected
upon the land of another with his assent, is the
personal property of the builder. b So, if a
nurseryman plant trees for the purpose of grow-
ing them for market, upon land hired by him,
they would be personal property. So, crops
while growing, planted by the owner of the
land, are a part of such real property ; but if
sold by him when fit for harvesting they become
k-2 Russ. 19, 570 ; 2jac. 232; 5 T. R. 380 : lYounge
& J. 167, 168 ; 2 Cr. & M. 55 ; Ram. Judg't Ch. 7 ; see
8 S. Coll. (N. C.) 599, 600. a-2 Bl. Comm. 17-19; i
Am. L. Mag. 271 ; Co. Litt. 4, a. b-6 N. H.s=s; 6
Me. 452; 8 Pick. 404. C-i Met. (Mass.) 27; 4 Taunt.
316. d-5 B. &C. 829. e-4 M. &W. 343; 2 Dana,
206; 2 Rawle, 161. f-4 Met. (Mass.) 584 ; 9 B. & C.
561 ; 7 N. H. 523. g:-4 Mass. 266. h-i T. R. 701 ; i
Met. (Mass.) 541 ; 10 Conn. 318. i-Wms. Ex. 613-615;
n Co. 50; 10 Paige Ch. 162 ; 30 Penn. St. 185. j-6
Me. 154. k-a Washb. R. Prop. 427. 1-4 M. & \V.
personal, 4 and a sale of such crops, though not
fit for harvest, as personal, is good." So, trees
growing, though not in a nursery, may be
changed into the category of personal property,
if sold to be cut without any right to have them
stand to occupy the land. f But if the owner of
land in fee sold the trees growing thereon to an-
other and his heirs, to be cut at his pleasure, the
property in the trees would be real.* The same
rule would apply to property in fee in a dwell-
ing-house, though the owner only has the right
to have it stand upon the land of another.
And one may own a chamber in a house as his
separate real estate. 11 So, a large class of ar-
ticles originally wholly movable, and which
may be at the time even disconnected with the
land, may be regarded as real property, from
having been fitted or actually applied to use in
connection with real estate, such as keys in
locks fastened upon doors ; mill-stones and
irons, though taken out of the mill for repair-
ing; window-blinds, though temporarily re-
moved from the house ; and fragments of a
dwelling-house destroyed by a tempest; 1 and
a conveyance of a " saw-mill " with the land,
passed iron bars and chains then in it, which
had been fitted for and used in operating it.'
See various subjects, below.
ABANDONED LAND. See DERELICT, ETC.,
below.
ADVERSE ENJOYMENT (or possession or ex-
ercise of an easement or privilege under a
claim of right against the owner of the land
out of which the easement is derived) k if open 1
and continued uninterruptedly for the term
of twenty years, raises a conclusive presump-
tion of a grant, provided that there was, during
the time, some one in existence, in possession,
and occupation, who was not under disability
to resist the use. n
ADVERSE POSSESSION, or the enjoyment of
land or such estate as may be conveyed, etc.,
under such circumstances as to indicate that
such enjoyment has been commenced and con-
tinued under an assertion or color of right on
the part of the possessor. When actual P and
has been adverse for twenty years, of which a
jury are to judge from the circumstances, the
law raises the presumption of a grant. i But
this presumption arises only when the use or oc-
cupation would otherwise have been unlawful.'
Possession is not adverse : I . When both
parties claim under the same title. 8 2. When
the possession of the one party is consistent with
the title of the other.* 3. When, in contem-
plation of law, the claimant has never been out
of possession." 4. When the occupier has ac-
knowledged the claimants' titles. T
500; 4 Ad. & E. 369. m-9 Pick. 251 ; 8 Grny, 441 ; 17
Wend. 564; 26 Me. 440; 20 Penn. St 331 ; 2 N. H. 2^5 ;
old. 454; 2 Rich. 136; lAd. & E. 788. n-2\Vashb.~R.
Prop. 48. 0-3 East. 394; i Pick. 466 ; 28. &R. 527; 3
Penn. St. 132 ; 8 Conn. 440; 2 Aik. 364 ; 9 Johns. 174 ; it
Id. 40 355 ; 5 Pet. 402 ; 4 Bibb. 530. p-3 S. & R. 517 ; 7
Id. 192 ; 2 Wash. C. C. 478. q-Angoll Water-Courses,
8s. et seq. r-3 Me. 120; 6 Cow. 617,677; 8 Id. 589 ; 48.
& R. 456; see 2 Smith L. Cas. 307-416. 8-Co. Litt. s.
396. t-8 East. 348. u-i Ld. Rayin. 329. v-Seei B. fit
P. 542 ; 8 B. & C. 717 ; 2 Bouv. lust. nn. 3193, 3194, 2351.
612
REAL PROPERTY.
AIR is not a subject of property ; it belongs
equally to all men, being indispensable to their
existence. But no man has a right to use the
air over another man's land in such a manner
as to be injurious to him. And to poison or
materially change the air, to the annoyance of
the public, is a nuisance. T An easement of
light and air coming over the land of another
cannot be acquired by prescription in the
United States,* though the rule is otherwise
in England. 1
ALLUVION is that gradual and imperceptible
increase of the earth on a shore or bank of a
river, by the force of water, as the current or
waves (alluvion differs from avulsion in this,
ihe latter is sudden and perceptible). Such in-
crease is so gradual that no one can judge how
much is added at each moment of time.' The
proprietor of the bank, increased by the allu-
vion, is entitled to the addition, this being re-
garded as the equivalent for the loss he may
sustain for the breaking in or encroachment of
the waters upon his land.* The increase is
to be divided among riparian proprietors by
the following rule : Measure the whole extent
of their ancient line on the river, and ascertain
how many feet each proprietor owned on this
line; divide the newly-formed river line in
equal parts, and appropriate to each proprietor
as many of these parts as he owned feet on the
old line, and then draw lines from the points
at which the proprietors respectively bounded
on the old to the points thus determined as the
points of division on the newly-formed shore.
In applying this rule allowance must be made
for the projections and indentations on the old
line.' When the increase is instantaneous, it
belongs to the State, upon the ground that it
Was a part of the bed of the river of which it
is proprietor. 1 " Sea-weed which is thrown upon
the beach, partaking of the nature of alluvion,
belongs to the owner of the beach.* But sea-
weed below low-water mark, on the bed of a
navigable river, belongs to the public. 4
APPURTENANCES. See CONVEYANCES.
AREAS are enclosed yards or openings in
houses ; also, open places adjoining to the
house. 8
AVULSION, or the tearing away or removal
of a considerable quantity of soil from the land
of one man, and its deposit upon or annexation
to the land of another, suddenly and by the
perceptible action of the water/ does not de-
V-Cro. Car. 510; 2 Ld. Raym. 1163; i Burr. 333;
i Str. 686 ; Dane Abr. W-6 Gray, 255 ; 14 ]cl. 583; 2
Watts, 327 ; JO Barb. 543 ; 13 Wend. 263 ; 19 Id. 309 ; 4
Sandf. Ch. 438; 2 Conn. 597; 16 III. 277 ; i Greene Ch.
57 : i Dudl. 131 ; 5 Rich. 311 ; 26 Me. 436; it Md. i ;
10 Ala. (N. S.)63. x-8 Ell. & B. 39 ; see2Washb. R.
Prop. 62, et scq, y-Inst. i, 2, t. i, g 20; 3 B. & C. 91.
JE-I Washb. R. Prop. 451 : 2 Md. Ch. Dec. 485 ; i Gill.
& J. 249 ; 4 Pick. 273; 17 Id. 41 ; i Hawks, 56; 6 Mar-
tin, 19 ; Ji Ohio, 311 ; 10 Pet. 662; 5 Wheat. 380. a-
17 Pick. 41 ; 9 Me. 44; 17 Vt. 387. b-i? Ala. 9; 2 Bl.
Conim. 69. 0-7 Mot. (Mass.) 373 : 2 Johns. 322 ; 3 B.
& Ad. 967. d-9 Conn. 38. e-i Chilty Pr. 176. f-2
Washb. R. Prop. 452. jf-Bract. 221; Hargr. Tract,
d'Jure mar.; Schuttes Aq. Rights, 115-138. h-n Me.
482; 23 Id. no; 24 Id. 192; 13 Ohio, 308; 10 Yerg.
477; 13 Vt. 533; 17 Id. 109. J-Toullier n. 171. ^-16
prive the first owner of the property thus torn
away or removed.*
BENCHES. See WASTE, below.
BETTERMENTS are improvements of a higher
character than mere repairs, 11 and also denote
additional value which the property acquires
from some public improvement, as laying out,
widening, etc., streets, etc.
BOUNDARIES are those separations, natural
or artificial, which mark the confines or line
of two contiguous estates,' and those objects
placed or existing at the angles of the bound-
ary lines Boundaries are frequently denoted
by monuments fixed at the angles; in such
case the connecting lines are always presumed
to be straight, unless described to be other-
wise .J
Artificial boundaries are those erected by
man ; the ownership in case of such bounda-
ries must of course turn mainly upon circum-
stances peculiar to each case,* generally ex-
tending to the centre. 1 A tree standing directly
on the line is the joint property of both pro-
prietors; otherwise, where it only stands so
near that the roots penetrate." Land bounded
on a highway extends to the centre, though a
private street, unless the description excludes
the highway.? See COURSES; LINES and
CORNERS; MONUMENTS; below.
Natural boundaries are natural objects re-
maining where they were placed by nature. A
river or stream is a natural boundaiy, and the
centre of the stream is the line.*
The order of marshalling boundaries is as
follows :
1. The highest regard is had to natural
boundaries.
2. To lines actually run and corners marked
at the time of the grant.
3. If the lines and courses of an adjoining
tract are called for, the lines will be extended,
if they are sufficiently established, and no
other departure from the deed is required,
preference being given to marked lines.
4. To courses and distances. 1 "
Parol evidence is often admissible to identify
and ascertain the locality of monuments called
<for by a description ; and where the description
is ambiguous the parties may be shown.' Com-
mon reputation may be admitted to identify
monuments, especially if of a public or ques-
tionable nature."
Pick. 235 ; 6 Monr. 179; 3 Ohio, 382; i McL. C. C.
579; 2 Washb. R. Prop. 632. lt-5 Taunt. 20; 3 Id
138; 8 B. & C. 259. 1-4 H'ill,309 ; 6Conn.47i. m-is
N. H. 454. n-i Mood. & M. 112; 2 Rolle, 141 ; 2
Greenl. Ev. 617. O-8 Cush. 595 ; i Sandf. 323, 374.
-i5 Johns. 454; n Conn. 60; i Allen, 443; 2 Washb.
R. Prop. 635. q-i2 Johns. 252 ; 20 Id. 91; 6 Cow
579; i Rand. 417; 3 Id. 33 ; 4 Pick. 268 ; i Halst. i ;
4 Mason C. C. 349 ; 9 N. H. 461; i Tayl. 136; n
Miss. 366; 5 H. & J. 195, 245. As to a pond, see 13
Pick. 261 ; 9 N. H. 461 ; 10 Me. 224; 13^.198; 16
Id. 257. As to sea-shore, see 2 Johns. 362; 5 Gray,
335; 13 Id. 254. r-i Greenl. Ev. $ 301, n. 8-13 Pick.
267; 19 Id. 445. t-i Met. (Mass.) 378; 7 Pick. 274.
11-2 Washb. R. Prop. 636; I Greenl. Ev. j> 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,<i to the extent
of rents accruing; 1 " and for any sum paid beyond
that he becomes a creditor of the estate.*
When the whole incumbrance is removed by a
single payment, the share of the tenant for life
is the present worth of the annuity, for the life
of the tenant, equal to the annual amount of
the interest which he would be obliged to pay.*
This rule applies to estates held in dower ; in
curtesy ; T in tail only in special cases."
INNINGS or lands may be gained from the
sea by drainage. 1
IRRIGATION. The owner of land over which
there is a current stream is, as such, the pro-
prietor of the current.^ A riparian proprietor
may avail himself of the river for irrigation,
provided such river be not materially lessened,
and the water absorbed be imperceptible or
trifling. 1 See SPRINGS, below.
23 Ala. (N. S.) 616. k-2 Me. 22; 22 Pick. 447 ; 3 N.
I. 260. 1-s Me. 94 ; 30 Id. 392. m-2 N. H. 458 ; 12
Mass. 304; 8 Pick. Mass. 547: n S. & R. 109; 4
Halst. 139. 11-30 Vt. 655 ; 5 Ohio St. 271 ; 5 Wis. 407.
0-3 Gray, 515 ; 6 Id. 572. |>-Sugden Vend. 6; i Vcs.
Sr. 96. <j-i Washb. R. Prop. 95-97, 257, 573 ; j Edw.
Ch. 312 ; 5 Johns. Ch. 482 ; 5 Ohio, 28. r-3i Eng. L.
Si Eq. 345; Tudor L. Cas. 60. 8-2 Atk. Ch. 463; i
Bail. Eq. 397. t-i Washb. R. Prop. 96,573. u-io
Mass. 315, n. ; 5 Pick. 146; 10 Paige Ch. 71, 158; 3
Md. Ch. Dec. 324; 7 H. & J. 367. v-i Washb. R.
Prop. 142. W-i Washb. R. Prop. 80; Tudor L. Cas.
613; 2 Law Gaz. 265, 270; 3 P. Wms. 229. x-Law of
Sewers, 31. y-4 Mason, C. C. 400. v-Angell WaK*
Courses, 34.
6i8
REAL PROPERTY.
ISLANDS when they first arise in the open
sea belong to the first occupant ; but when they
are newly formed so near the shore as to be
within the boundary of some State, they belong
to that State. Islands which arise in rivers,
when in the middle of the stream, belong in
equal parts to the riparian owners. When they
arise merely on one side, they belong to the
riparian owner up to the middle of the stream.*
See COASTS, above ; WATER, below.
JOINTURE. See ESTATES, ante.
KEYS of a house are considered real estate,
and descend to the heir with the inheritance. 1 *
LAND includes any ground, soil, earth, min-
eral, or liquids, and all natural and artificial
growth. It may be wild, cultivated, arable, or
otherwise. It includes in general all build-
ings erected upon it, with some exceptions ;
if a stranger voluntarily erects buildings on
another's land, they will belong to the owner
of the land, and will become a part of it, d
though under peculiar circumstances they
would be considered as personal property. 6 It
includes mines, except mines of gold and sil-
ver; and a grant of public lands will include
these also. f
LEASE. See title CONVEYANCES, ante.
LICENSE may be by conveyance duly ac-
knowledged,* by parol, h or by implication from
circumstances, as opening a door in response
to a knock. 1 It is distinguished from an ease-
ment, which implies an interest in the land to
be affected, and is also distinguished from a
lease, which is a right to take the profits of
land. It may be and often is coupled with a
conveyance of some interest in the land itself,
or right to take the profits.^ It may be granted
by the owner, or, in many cases, by a servant.*
An executory license may be revoked at the
pleasure of the grantor. 1 In general, a mere
license may be revoked at the grantor's pleas-
ure, although the licensee has incurred ex-
pense." Not so a license closely coupled with a
transfer of title to personal property. An exe-
cuted license, which destroys an easement en-
joyed by the licenser in the licensee's land,
cannot be revoked.? The effect of an executed
license, though revoked, is to relieve or excuse
the licensee from liability for acts done properly
in the pursuance thereof, and their conse-
quences.' The licensee's improvements on
lands are without compensation, in equity/
j-Washb. R. Prop. ; Kent Comm. b-n Co. 50 b ;
30 Eng. L. & Eq. 598; see 5 Blackf. 417; 5 Taunt. 518.
c-9 Day, 374. d-i6 Mass. 449. -4 Miss. 514; 5
Pick. 487 ; 8 Id. 203, 402 ; 6 N. H. 555 ; 10 Me. 371 ; i
Dana, 591 ; i Burr. 144. f-3 Kent Comm. 378, n. ; i
N. Y. 572. JT-2 Parsons' Contr. 22. h-13 M. & W.
838 ; 4 M. & S. 562 ; 7 Barb. 4 ; i Washb. R. Prop. 148.
i-Hob. 62 ; 2 Greenl. Ev. \ 427. i-i Washb. R. Prop.
14<J. k-Cro. Eliz. 246; 2 Greenl. Ev. 427. l-i Washb.
R. Prop. 148. ni-n Mass. 433; 15 Wend. 380. n-io
Conn. 378; 23 Id. 223 ; 3 Duer, 355; n Met. (Mass.)
251 ; 2 Gray, 302 ; 24 N. H. 364 ; 13 Id. 264 : 4 Johns.
418- 3 Wis. 117; i Dev. & 6.492; 13 M. &W. 838;
37 Eng. L. & Eq. 489; 5 B. & Ad. i ; see 14 S. & R.
167. 0-8 Met. (Mass.) 34; ii Conn. 525; 13 M. & W.
Exch. 856; ii Ad. & E. 34. p-g Met. (Mass.) 302 ; 2
Gill. 221 ; 3 Wis. 124; 3 Duer, 255; 7 Bingh. 682 ; 3
P. Si C. 332 ; 5 Id. 22 j. q-6 Duer, 263; 23 Barb. 336;
LIENS. See that title, ante.
LIME. See WASTE, below.
LINES. When a line is mentioned in a
deed as ending at a particular monument it is
to be extended in the direction called for
without regard to distance until it reach the
boundary, 8 and a marked line is to be adhered
to although it depart from the course. 1 Where
a number of persons settle simultaneously, or at
short intervals, the same neighborhood, and their
tracts, if extended in certain directions, would
overlap each other, the settlers sometimes by
agreement determine upon dividing lines,
which are called consentible lines. These lines,
when fairly agreed upon, have been sanctioned
by the courts ; and such agreements are con-
clusive upon all persons claiming under the
parties to them, with notice, but not upon botta
fide purchasers for a valuable consideration
without notice, actual or constructive." Lines
fixed by compact between nations are binding
on their citizens and subjects/
LINES AND CORNERS in conveyances and
surveys are the boundary lines and their angles
with each other."
MEADOWS. See WASTE, below.
METALS. See WASTE, below.
MILLS conveyed with their appurtenances,
even without the land, carries the whole right
of water enjoyed by the grantor, as necessary
to its use, and as a necessary incident; 1 and a
devise of a mill carries the land used with it
and the right to use the water.' A mill in-
cludes not only the building in which the busi-
ness is carried on, but includes the site, the
dam, and other things annexed to the freehold
necessary for its beneficial enjoyment." As to
manufacturing machinery, see FIXTURES, above,
and title LANDLORD AND TENANT, " Crops,'"
" Emblements," " Fixtures," etc. See WASTE,
below.
MINES of gold and silver and the preciour.
metals belong to state or sovereign,' but pass
by a grant of land, without exception or reser-
vation, from the state or government. 1 * Mines
of other minerals belong to the owner of the
soil, and pass by a conveyance thereof, unless
separated; but the owner may convey hii
mines by a separate and distinct conveyance so
as to create one freehold in the soil and another
in the mines. d In case of a separate owner-
ship the owner of the mine must support the
18 Pick. 569; 2 Gray, 302 ; 10 Conn. 378; 13 N. H.
264; 7 Id. 237; 7 Taunt. 374; 5 B. & C. 221. r-? Wis.
117; Story Eq. Jur. 1237; Angell Water Courses, J
318. s-i Tayl. no, 303 ; 2 Id. i ; 2 Hawks, 219 ; 3 Id.
21. t-7 Wheat. 7; 2 Overt. 304; 3 Call. 239; 4 Monr.
29 ; 7 Id. 333; 2 Bibb. 261 ; 4 Id. 503. 0-3 S. & R.
323; 5 Id. 273; 17 Id. 57; 9 W. & S. 66. v-n Pet.
209; i Overt. 269; i Ves Sr. Ch. 450; i Atk. Ch. 2; i
P. Wins. 723-727 ; iVern. Ch. 48: t Ves. Ch. 19; x
Id. 284; 38. & R. 331. W-i? Miss. 459 ; 21 Ala. 66;
q Foster & H. 471 ; 10 Gratt. 445 ; i6Ga. 141. x-Cro.
Jac. 121. y-i S. & R. 169; see 5 S. & R. 107; 10 Id.
63; 2 Caines Cas. 87; 3 Isi. H. 190; 7 Mass. 6: 6 Me.
154, 436: 16 Id. 281. z-3 Mass. 280; see 6 Me. 436.
-i Plowd. 310 : 3 Kent Comm. 378, n. b-i4 Cal. 375;
17 Id. 199; 2 Washb. R. Prop. 626. -i N. Y. 564;
19 Pick. 314. d-i Penn. 726; 7 Cush. 3*1 ; 8 Id, 21,
$ M. & W. 50,
REAL PROPERTY.
superincumbent soil,* and ancient buildings
and other erections/ Opening new mines by
a tenant is waste, unless the lease includes
them ; but if mines be already open it is not
waste to work them even to exhaustion. 11
The occupant of public lands who holds
them for agricultural purposes, holds them
subject to the right of any person to dig for
gold. 1 See WASTE, below.
MONEY often has the character of realty at-
tached to it, so far as being heritable and the
like, by equity, where it is the proceeds of real
estate wrongfully converted into money, or
which ought to be converted into real estate.^
MONUMENTS or permanent landmarks, estab-
lished or erected to indicate and mark bound-
aries of lands, may be either natural or arti-
ficial objects : as, rivers, known streams,
springs, or marked trees,* and even posts set
up at the corners, 1 and in a clearing. 111 When
monuments are established they must govern,
although neither courses, nor distances, nor
computed contents correspond." See BOUND-
ARIES, above.
ORCHARDS. See WASTE, below.
PARCENARY. See ESTATES IN PARCENARY,
above.
PARTITION FENCE. See FENCES, above.
PLATS, or map of land, on which are marked
the courses and distances of the different lines,
may be given in evidence in ascertaining the
position of the land and what is included, and
may serve to settle the figure of a survey and
correct mistakes.
PARK. See WASTE, below.
PARLOR. See WASTE, below.
PEWS in churches are sometimes real and
sometimes personal estate, depending, gener-
ally, upon local statutes ; though, in the ab-
sence of statute law, it would seem they were
interests in real estate and partake of its char-
acter.?
POSSESSED applies to the right and enjoy-
ment of a person having a term who is said to
be possessed, but not seized .1
POSSIBILITIES are merely contingent interests
in real or personal property . r It is uncertain
whether the contingency may happen or not;
whether the interest will be realized or not.
PRESCRIPTION is a mode of acquiring title
to incorporeal hereditaments,' by immemorial
or long continued enjoyment. The length of
c-i2 Q. B. 739: 5 M. & W. 60; 12 Exch. 259. f-2
Hurlst. & N. 828. ST-Co. Litt. 53, i; 2 Bl. Comm.
282 ; i Taunt. 410 : Hob. 234. h-i Taunt. 410 ; 19
Penn. St. 324; 6 Munf. 134: i Rand. 258; 10 Pick.
460; I Cow. 460; see Smith Landl. & Ten. 192, 193,
B. 1-5 Cal. 140,308; 6 Id. 148. j-3 Wheat. 577;
i Brown Ch. 6, 497; 13 Pick. 154. It -6 Wheat. 582 : 7
Id. 10; 3 Ohio, 284 ; 5 Id. 534 ; 5 N. H. 524 : 3 Dev.
75. 1-5 Ohio, 534. m-7 Cow. 723 ; see 3 Dev. 75. n-
i Con. 605 ; 5 Id. 346 : 6 Id. 706 ; 7 Id. 723 ; 2 Mass.
380; 6 Id 131; 3 Pick. 401 ; 5 Id. 135; 3 Gill. & J.
142 ; 2 Harr. & J. 260 ; 5 Id. 163, 255 ; i Harr. & McH.
355: 2 Id. 416; Wright, 176; 5 Ohio, 534 ; Cooke, 146;
4 Hen. & M. 125 : i Call. 429 ; 3 Id. 239 ; n Me. 325 ;
i Hayw. 22 ; 3 Hawks. 91 ; 3 Murph. 88 ; 4 Monr. 32 ;
5 Id. 175 ; 5 J. J. Marsh. 578 ; 6 Wheat. 582 ; 4 Wash.
C. C. 15. 0-5 Monr. 160; see 17 Mass. 211 ; 5 Me.
219 ; 7 Id. 61 ; 4 Wheat. 444 ; 14 Mass. 149. p-i Pick.
time necessary to raise a strict prescription was
limited to sixty years.* Grants of incorporeal
hereditaments are presumed upon proof of
enjoyment of the requisite character for a period
of years equal to that fixed by statute as the
period of limitation of real actions." Prescrip-
tion properly applies only to incorporeal here-
ditaments/ such as easements of water, light
and air, way, etc. w A class of franchises. 1
QUARRIES. When a farm is let with an open
quarry the tenant may, when not restrained by
his contract, take out the stone ; but he has no
right to open new quarries. See MINES, above.
RELICTION is an increase of land by the
retreat or recession of a sea, lake, or river.
Lands left dry by the sudden or sensible reces-
sion of the sea, or of a river which flows and
reflows with the tide, belong to the sovereign
or State, unless the property in the land so re-
lected has been granted to individuals ; in other
words, the right of property in the soil is not
changed by the change of the water. But
where the recession is gradual and insensible,
or where it takes place in fresh water rivers,
the soil of which belongs to riparian proprie-
tors, the lands so relicted belong to the pro-
prietors of the estates which are thereby in-
creased.' But this reliction must be from the
sea in its usual state, for if it should inundate
the land and then recede, this would be no re-
liction. 1 If a navigable lake recede gradually
and insensibly, the derelict land belongs to the
adjacent riparian proprietors ; but if the reces-
sion be sudden and sensible, such land belongs
to the State.* See AVULSION; ALLUVION,
above.
REMAINDERS are remnants of estates in real
property expectant on a particular estate created
together with it at the same and one time. A
contingent remainder depends on a contingency
which may or may not happen ; a vested re-
mainder is one by which the present interest
passes to the property, though to be enjoyed in
future.*
REPAIRS. What a party is bound to do,
when the law imposes upon him the duty to
make necessary repairs, does not appear to
be very accurately defined. Natural and un-
avoidable decay in the buildings must always
be allowed for, when there is no express cov-
enant to the contrary ; and, it seems, the lessee
104: 16 Wend. 28; 5 Met. (Mass.) 132. q-Boc. Tr.
335; Poph. 76; Dyer, 369. r-i Madd. Ch. 549. s-See
title CONVEYANCES, ante, t-32 Hen. VIII; 8 Pick.
308 ; 7 Wheat. 79 ; 4 Mason C. C. 402 ; 2 Greenl. 539 :
see 9 Cush. 171; 29 Vt. 43: 24 Ala. (N. S.) 130; 29
Penn. St. 22. 11-3 Kent Comm. 442; 12 Wend. 330;
19 Id. 365 ; 27 Vt. 26s : a Bail. 101 ; 4 Md. Ch. Dec.
386; 13 N. H. 360; 4 Day, 244; 108. &R.6 3; 9 Pick.
251 ; see 14 Barb. 511 : 3 Me. 120; i B. & P. 400; 5 B.
& Aid. 232. v-3 Barb. 105 ; Finch L. 132. w-4 Mas.
C. C. 397; 4 Rich. 536; 20 Penn. St. 331 ; i Crompt.
M. & R. 217 ; i Gale & D. 205. 210, n. ; Tudor L. Cas.
114; Washb. Easm. x-Co. Litt. 114; 10 Mass. 70;
10 S. & R. 401. y-Woolrych Wat. 29-36; Schultes
Agr. Rights, 138 ; Ang. Tide-wat. 264-267 : 3 B. & C.
oi ; 9 Conn. 41 ; 2 Md. Ch. Dec. 485 ; 13 N. Y. 296; 5
Bingh. 163. z-Ang. Tide-wat. 264-267; Hargrave
Tracts, 15; 16 Viner Abr. 574. a-i Hawks. 56; i GiU.
& J. 249. b-See 2 Johns. 288; I Yeates, 340.
/
620
REAL PROPERTV.
will satisfy the obligation the law imposes on
him by delivering the premises at the expiration
of his tenancy in a habitable state. Questions
in relation to repairs most frequently arise be-
tween the landlord and tenant. When there is
no express agreement between the parties, the
tenant is always required to do the necessary
repairs. He is, therefore, bound to put in
windows or doors that have been broken by
him, so as to prevent any decay of the premises ;
but he is not required to put a new roof on an
old, worn-out house. d An express covenant on
the part of the lessee to keep a house in re-
pair, and leave it in as good a plight as it was
when the lease was made, does not bind him to
repair the ordinary and natural decay.* As to
the time when the repairs are to be made, it
would seem reasonable that when the lessor is
bound to make them, he should have the right
to enter and make them, when a delay until
after the expiration of the lease would be in-
jurious to the estate ; but when no such dam-
age exists, the landlord should have no right
to enter without the consent of the tenant.'
When a house has been destroyed by accidental
fire, neither the tenant nor the landlord is
bound to rebuild, unless obliged by some agree-
ment so to do.*
REVERSION is the residue of an estate left in
the grantor to commence after the determina-
tion of some particular estate granted out by
him ; the return of the land to the grantor and
his heirs after the grant or lease is over. h
REVOCATION. See LICENSE, above.
ROOMS See WASTE, below.
SEASHORE is that space of land on the bor-
der of the sea between high and low water-
mark. 1 At common law the seashore belongs
to the State or sovereign^ The rights of fish-
ery and navigation remain unimpaired by the
grant of lands covered by navigable water. k
The power of the States is absolute, except so
far as it is controlled by the federal constitu-
tion^ and they may regulate the use of their
shores and the fisheries thereon, provided such
regulations do not interfere with the acts of
Congress. The public right of fishing in-
cludes shrimping and gathering all shell-fish,
or other fish, whose natural habitat is between
high and low water- mark.
SEA-WEED when cast upon the land belongs
to the owner of the land adjoining the sea-
thore, upon the ground that it increases grad-
ually, it being useful as a manure or in pro-
tection of the ground, and being some compen-
e-Woodfall Landl. & Ten. 244 ; 6 Cow. 475. d-a
Ep. 590. e-Woodfall Landl. & Ten. 256 ; see 7 Gray,
550. And it has been held that such a covenant does
not bind him to rebuild a house which has been de-
stroyed by a public enemy. i Dall. 210 ; sec i Dyer,
33 a. I'-See 18 Toullier, . 297. g-4 Paige Ch. 355 ;
i T. R. 708 ; Foublanque, b. i, e. 5, s. 8 ; see 6 T. R.
650; 4 Campb. 275 ; Com. 627; 2 Show. 401 ; jVes.
Ch. 34; C. Litt. 27, a note, i ; 3 Johns. 44; 6 Mass.
63; Platt. Cov. 266 ; Com. Dig. Condition (L. 12); i
Saud. 322, n. i, 323, . 7: 2 Id. 158, t. n. 7& 10 ; Bouv.
Irut. Index. Il-Co. Litt. 142, b. 1-Hargr. St. Tr. 12 ;
6 Mass. 435, 439 ; I Pick. 180, 182 : 5 Day, 22 ; 12 Me.
37 i Zabr. 441 ; 27 Eng. L. & Eq. 242 ; 4 PeG. M. &
sation for the encroachment of the sea upon
the land.
SEEDS which have been sown in the earth
immediately become a part of the land in
which they have been sown.P
SEIZIN is the possession of real property
with an intent on the part of the occupant to
claim a freehold interest.*
SHELVES. See WASTE, below.
SHOALS. See COASTS, above.
SHORE includes only such land on the side
of a sea, lake, or river, where the water ebbs
and flows, as lies between high and low-water
mark.
SOIL. See WASTE, below.
SPRINGS are the exclusive property of the
owner of the soil. When another has an ease-
ment or right to draw water from such a spring,
acquired by grant or prescription, and the
spring fails, the easement ceases ; but if it re-
turns the right revives. The owner of land on
which there is a natural spring has a right to
use it for domestic and culinary purposes, and
for watering his cattle ; and he may make an
aqueduct to another part of his land, and use
all the water required to keep the aqueduct in
order, or to keep the water pure. r He may also
use it for irrigation, provided the volume be
not materially decreased.* The owner of the
spring cannot lawfully turn the current, or give
it a new direction ; he is bound to let it enter
the inferior estate on the same level it has been
accustomed to, and at the same place, for every
man is entitled to a stream of water flowing
through his land without diminution or altera-
tion. 1 The owner of the superior inheritance,
or land on which there is a spring, has no right
to deprive the owner of the estate below him ;
nor can he detain the water unreasonably.*
STATUTE. See WASTE, below.
STILES. See WASTE, below.
STONE. See WASTE, below.
STRAWBERRY BEDS. See WASTE, below.
SURRENDER. See CONVEYANCES, ante.
SURVEYS made by authority of law, and duly
returned into the land office, are matters of
record, and of equal dignity with the patent."
TENURE is the mode by which one holds an
estate in lands ; the species of right or title to
real property.
TIMBER. See WASTE, below.
TRANSFER. See title CONVEYANCES, ante.
TREES are a part of the real estate while
growing and before they are seyered from the
G. 206. J-Angell Tide-w. 20, ft seg. ; 3 Kent Comm.
347; 27_Eng.]L. & Eq. 842; 6 Mass.
435; i Dutch,
525 ; 16 Pet. 367 ; 3 How. 221 ; 3 Zabr. 624. k-6 Gill.
121. 1-Angell Tide-w. 59. ni- 4 Wash. C. C. 371 ; 18
How. 71 ; 4 Zabr. 80; 2 Pet. 245. n-s Day, 22 ; 2 B. &
P. 472; 22 Me. 353. 0-2 Johns. 313,323: sees Vt. 223.
p-Inst. 2, i, 32. q-8 N. H. 58 ; i Washb. R. Prop. 35.
r-i$ Conn. 366. H-Angell Water Courses, 34. t-6
East. 206 ; 2 Conn. 584 ; see 3 Rawle, 84 ; 12 Wend. 330 ;
10 Conn. 213; 14 Vt. 239. u-i Yeates, 574 ; 5 Pick.
'75 I 3 Harr. & J. 231 ; la Vt. 178 ; 13 Conn. 303 ; 14
111. 492. v-17 Jjohns. 306; a B. & C. 910. w-~3 A. K.
Marsh. 226; a J. J. Marsh. 160; see 3 Me. ia6; 5 Id.
24 ; 14 Mass. 140 ; x Harr. & J. 201 ; i Overt. 109 ; i
Dev. & B. 76.
REAL PROPERTY.
621
freehold ; but as loon as they are cut down
they are personal property. Trees belong to
the owner of the land where they grow ; but
if the roots go out of one man's land into that
of another, or the branches spread over the
adjoining estates, such roots or branches may
be cut off by the owner of the land into which
they thus grew. x When the roots grow into
the adjoining land, the owner of such land may
lawfully claim a right to hold the tree in com-
mon with the owner of the land where it was
planted ; but if the branches only overshadow
the adjoining land, and the roots do not enter
it, the tree wholly belongs to the owner of the
estate where the roots grow.? When the tree
grows directly on the boundary-line, so that
the line passes through it, it is the property of
both owners, whether it be marked as a bound-
ary or not.* See WASTE, below.
VEST. An estate is vested in possession
when there exists a right of present enjoyment ;
and an estate is vested in interest when there
is a present fixed right of future enjoyment.*
VESTED REMAINDERS are estates by which
the present interest passes to the party, though
to be enjoyed in the future, and by which the
estate is invariably fixed to remain to a deter-
minate person, after a particular estate is ex-
tinguished. 1 *
VIEW. Every one is entitled to a view from
his premises ; but he thereby acquires no right
over the property of his neighbors. The erec-
tion of buildings which obstruct a man's view,
therefore, is not unlawful, and such buildings
cannot be considered a nuisance. 8
WARRANTY. See title CONVEYANCES, " Cov-
enants," ante.
WAINSCOT. See WASTE, below.
WARREN. See WASTE, below.
WASTE is any spoil or destruction done, or
permitted, to lands, houses, or other real prop-
erty to the prejudice of the owner or his heirs.
It may be voluntary or permissive.
Permissive waste to buildings consists in
omitting to keep them in tenantable repair;
suffering the timbers to become rotten by neg-
lecting to cover the house; or suffering the
walls to fall into decay for want of plastering;
or the foundation to be injured by neglecting to
turn off a stream of water, and the like. At
common law, the mere suffering of a house to
remain unroofed, if it was so at the commence-
ment of the lease, would not be waste ; but a
tenant assumed the responsibility of any/ other
part of the house thereby becoming ruinous or
decayed ; and so although no injury or destruc-
tion of a house by lightning, tempest, or the
public enemy, would not be waste, yet to suf-
fer it to remain ruined would be. d Permissive
X-RolIe, 394; 3 Bulstr. 198; Viner Abr. Trees, 6,
Nuisance (W. x) ; i Suppl. to Ves. Jr. 138; 2 Suppl.
Ves. Ch. 162, 448 ; 6 Ves. Ch. 109. y-i Ld. Raym.
737. z-i2 N. H. 454. a-Fearne Cont. Rem. 2. b-2
Bour. Inst. n. 1831. c-g Co. 58, b. d-2 Rolle Abr.
818 ; F. Moore, 69 ; 10 Ad. & E. 398 : 4 Leon, 240. e-
4 B. & P. 298 ; 10 B. & C. 312. f-s T. R. 373 ; 6 Ves.
Ch. 328 ; 2 Hill, 157 ; 2 B. & P. 86. gr-Co. Litt. 51, b.
h-2 Rolls Abr. 817. i-i Campb. 227. j-Co. Liu. 53,
waste in houses, as a general rule, is now only
punishable when a tenant is bound to repair,
either expressly or by implication. 8
Voluntary waste is committed upon culti-
vated fields, orchards, gardens, meadows, and
the like, whenever a tenant uses them con-
trary to the usual course of husbandry, or in
such a manner as to exhaust the soil by neg-
ligent or improper tillage.' It is, therefore,
waste to convert arable land into woodland,
or the contrary.* Cutting down fruit trees,
although planted by the tenant himself, is
waste. h So if an outgoing tenant plough up
strawberry beds which he has bought of a
former tenant when he entered. 1 When lands
are leased on which there are open mines of
metal, or coal, or pits of gravel, lime, clay, brick
earth, and the like, the tenant may dig out of
such mines or pits, but he cannot open any
new mines or pits without being guilty of waste $
any carrying away of the soil is also waste."
Voluntary waste is committed in houses by
pulling them down, or by removing wain-
scots, floors, benches, furnaces, windows, doors,
shelves, and other things once fixed to the free-
hold, although they have been erected by the
lessee himself, unless they were mere fixtures ;
and this kind of waste may take place not only
in pulling down houses, or parts of them, but
also in changing their forms, as if a tenant pull
down a house and erect a new one in its place,
whether it be larger or smaller than the first, 1
or convert a parlor into a stable, or a grist-mill
into a fuelling-mill, 111 or turn two rooms into
one.' The building of a house where there
was none before, by the strict rules of the com-
mon law, was said to be waste ; and taking it
down after it was built was waste also.P Volun-
tary waste may be committed upon timber ; and
in those countries where timber is scarce and
valuable, the law is strict in this respect. The
law of waste accommodates itself to the varying
wants and conditions of different countries;
that will not, for instance, be waste in an entire
woodland country which would be so in a
cleared one. The extent to which wood and
timber on such land may be cut without waste,
is a question of fact for a jury to determine un-
der the direction of the court.i A tenant may
always cut trees for the repair of houses, fences,
hedges, stiles, gates, and the like; 1 " and for
making and repairing all instruments of hus-
bandry ; as plows, carts, harrows, rakes, forks,
etc. ; and he may, when unrestrained by the
terms of the lease, cut timber for firewood, if
there be not enough dead timber for such pur-
poses;* but where, under such circumstances,
he is entitled to cut down timber, he is re-
strained, nevertheless, from cutting ornamental
b. k-Com. Dig. Waste, D. 4 ; 14 East. 489 ; a Hfll N.
Y. iS7; 6 Barb. 13; Co. Litt. 53, b; i Sch. & L. Ch. 8.
1-2 Rolle Abr. 815. m-2 RoUe Abr. 814, 815. n-2
Rolle Abr. 813. O-Co. Litt. 53, a. p-Com. Dig. Waste
(D.2); 2East.88; i B. & Ad. 161 ; 8 Mass. 416 ; I
Met. (Mass.) 27 ; 4 Pick. 310; TO N. Y. 234; 16 Conn.
322 ; 2 M'Cord, 329 ; i Harr. & J. 289 ; i Watts, 378.
q-7 Johns. 227. r-Co. Litt. 53, b. 8-Wood Inst. 344.
t-Com. Dig. Waste (D 5) ; Fitzherbert Nat. Brev. S9 .
*->-
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,<i in such a way as to adapt the uses of
the water to the complex and multiplying de-
mands and improvements of civilization.
Wherever a water-course divides two estates
each estate extends to the thread or central line
of the stream ; but the riparian owner of
neither can lawfully carry off any part of the
water without the consent of the other oppo-
site, each riparian proprietor being entitled not
to half or any other proportion of the water,
but to the whole bulk of the stream undivided
and indivisible. 1 " Where an island is on one
side of a river, so as to give the riparian owner
of that side only one- fourth of the water, he has
no right to place obstructions at the head of
the island to cause one-half of the stream to
descend on his side of the river, but the owner
opposite is entitled to the natural flow of the
remaining three-fourths. 1
243. h-t? Johns. 306; 3 Hill, 531 ; 5 Vt. 371 ; 3 Hair.
6 J. 231. 1-17 Conn. 288; 13 Johns. 212; 10 Barb.
518; 24 Ala. (N. S.) 130; 28 Vt. 670; 38 Eng. L. &
Eq. 526. j-38 Eng. L. & Eq. 241 ; 13 Mass. 420; s
Pick. 175 ; 8 Me. 253; 12 Wend. 330; 41)1.496. fe-,
17 Barb. 654 ; to Cush. 367 ; 6 Ind. 324; 28 Vt. 459 ; 6
Penn. St. 32; 29 Id. 98; 4 Mason C. C. 401 ; 17 Johns.
306; 13 Conn. 303. 1-24 Penn St. 298 ; 22 Barb. 297;
3 Rawle, 397; 8 Eng. L. & Eq. 217; 3 Hill, 479; 4
Ohio, 833. Ul-3 Conn. 373; 13 Johns. 525; 17 Me.
281 ; 3 Hill N. Y. 418 ; 6 Met. (Mass. ) 131 ; 7 Id. 94 ;
7 Penn. St. 318 ; 18 Eng. L. & Eq. 164; 9 N. H. 282 ;
3 N. Y. 253. n-6 N. Y. 33 ; 20 Vt. 250. 0-2 Gill. 221 ;
13 Conn. 303: i Met. (Mass.) 331 ; 14 S. & R. 267; 4
East. 107. p-ig Pick. 449; 21 Id. 417: 22 Id. 333; 3
Harr. & I. 282; 17 Wend. 126. q-6 East. 208; i
Campb. 463 : 4 Mason C. C. 397: 6 Scott, 167: 9 Pick.
251. r-i3 Johns. 212 ; 8 Me. 253 ; 3 Sr.mn. C. C. 189;
13 Mass. 507; i Paige Ch. 447. s-io Wend. 260.
REAL PROPERTY RECEIPTS.
623
Where there is an underground flow of
water so well defined as to be a constant
stream, the owner of the land through which
it flows has no right to divert it to the injury
of the person on whose land it comes to the
surface as a spring.?
WHARFS, the several States being owners
of the soil of tide waters within their respective
territories, may by law authorize and regulate
the erection of wharfs thereon, until the gen-
eral government shall have legislated upon the
subject. i In the navigable fresh-water rivers
the riparian proprietors, being the owners of
the bed of the stream, may wharf out to the
channel, subject only to the condition that they
do not materially interrupt the navigation.
WINDFALLS. See WASTE, above.
WINDOWS. See WASTE, above.
WOODS. See WASTE, above.
Reason. See AUTHORITIES.
Rebutting. See EVIDENCE.
RECEIPTS. See BAILMENTS; CONTRACTS; CON-
VEYANCES ; RELEASES.
A RECEIPT is a written acknowledgment of
payment of money or delivery of chattels.
AN ACQUITTANCE is a discharge or release
from a debt. The writing which is evidence
of the discharge. A receipt in full, which bars
a further demand. An agreement in writing
to discharge a party from an engagement to
pay a sum of money. It differs from a release
in this, that the latter is under seal, while an
acquittance is not. r But though not under seal
it has nearly the same effect as a release. 8
A receipt is often useful as evidence of facts
collateral to those stated in it. It proves the
payment, and whatever inference may be
legally drawn from the fact of the payment
described, will be supported by the receipt.
Thus, receipts for rent for a given time have
been held prima facie evidence of the payment
of all rent previously accrued.* And they
have been admitted on trial of a writ of right,
as showing acts of ownership on the part of
him who gave them." A receipt given by A.
to B. for the price of a horse, afterwards levied
on as the property of A., but claimed by B.,
was once admitted as evidence of ownership
against the attaching creditor/ A receipt " in
ill of all accounts," the amount being less
than that called for by the accounts of the party
giving it, was held in his favor evidence of a
mutual settlement of accounts on both sides,
and a payment of the balance ascertained to be
due after setting off one account against the
other. w A receipt given by an attorney for
p-25 Penn. St. 258 ; 29 Id. 59 ;
Story C. C. 387 ; see 12 M. & W. _
gell Water Courses, 3 109, 114. q-4 Ga. 26; 7 Cush.
Harr. & M. H. 244; n Gill. & J. 351. r-Poth.
6 Paige Ch. 435 ; i
324 ^ 28 Vt. 49 ; An-
53: 2 1
Oblig.
>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 i<?
concerned, it is presumptive evidence only,"
and is, in general, open to explanation," 1 being
an exception to the general rule that parol evi-
dence cannot be admitted to contradict or vary
a written instrument. 8 Thus, a party may
always show, in explanation of a receipt lim-
ited to such acknowledgment, the actual cir-
cumstances under which it was made/*, g.,
that it was obtained by fraud,* or given under
a mistake, 11 or that, in point of fact, no money
was actually paid as stated in it. 1
IN CONTRACTS, ETC.
A receipt may embody a contract, and, in
this case, it is not open to the explanation or
contradiction permiited in the case of a simple
receipt.^ The fact that it embodies an agree-
ment, brings it within the rule that all matters
resting in parol are merged in the writing.*
Thus, a receipt which contains a clause amount-
ing to an agreement as to the application to be
made of the money paid as when it is ad-
vanced on account of future transactions is
not open to parol evidence inconsistent with it. 1
A bill of parcels with prices affixed, rendered
by a seller of goods to a purchaser, with a re-
5 ; 3 Id. 317 ; 4 Id. 206 ; 7 Cow. 334 ; 16 Wend. 460 : 16
Me. 475 ; 5 Ark. 61 ; n Mass. 27, 363 ; 3 McLean C.
; 6 B.
C. 265 ;
Mon. 199 ; 2 Johns. Cas. 438 ; i Per. & D.
437; 3 B. & C. 431 ; 8Gill.i79; 3 Jones, 501. tl-2
Johns. 378; o Id. 310; 6 Ala. 8n ; 8 Ala. (N. S.) 59 : 4
Vt. 308 ; 21 Id. 222 ; 3 McLean C. C. 387 ; 4 Barb. 265 ;
5 t)uer, 294 ; 5 J. J. Marsh. 79 ; 5 Mich. 171. e-s
Johns. 68 : 2 Met. (Mass.) 283. f-8 Johns. 389. g-
W right, 764 ; 4 Harr. & McH. 219. h-6 Barb. 58 ; 3
Dana, 427. i-2 Strobh. 390 ; 3 N. Y. 168 ; 10 Vt. 96 ;
but see i J. J. Marsh. 583. j-4 Gray, 186. k-See
ante, EVIDENCE. 1-5 Ind. 109; i4\Vend. 116; 12 Pick.
40, 562; 15 Id. 437.
624
RECEIPTS.
ceipt of payment executed at the foot, was held
in one case to amount to a contract of sale of
the goods, and therefore, not open to parol
explanation, while, in another case, a similar
bill was held merely a receipt, the bill at the
head being deemed only a memorandum to
show to what the receipt applied. A bill of
hiding which usually contains words of receipt
stating the character, quantity, and condition
of the goods as delivered to the carrier, is the
subject of a somewhat peculiar rule. It is
held that so far as the receipt is concerned, it
may be explained by parol. n But as respects
the agreement to carry and deliver, the bill is a
contract, to be construed like all other con-
tracts, according to the legal import of its
terms, and cannot be varied by parol.
Where the payment is made in some particu-
lar currency or medium, as doubtful bank-bills,
a promissory note of another person, etc.,
clauses are often inserted in receipts specifying
the condition in which such mode of payment
is accepted. The general rule is that nego-
tiable paper given in payment is presumed to
have been accepted on the condition that it
shall not work a discharge of the demand
unless the paper shall ultimately produce satis-
faction; and if an intent to accept it absolutely
does not affirmatively appear, the creditor is
entitled, in case the paper turned out to him is
dishonored, to return it and claim to be paid
nnew.P If the receipt is silent on that subject,
it is open to explanation, and the creditor may
rL-but it by proof that the payment admitted
was in fact made by a note, bill, check, bank-
notes, afterwards ascertained to be counterfeit,
or notes of a bank in fact insolvent, though not
known to be so to the parties, etc.i But if the
agreement of the parties is specified in the re-
ceipt, the clause which contains it will bind
the parties, as being in the nature of a con-
tract/ A receipt for a note taken in payment
of an account will not, in general, constitute a
defence to an action on the account, unless it
appears by proof that the creditor agreed to
receive the note as payment, and take the risk
of its being paid.*
IN DEEDS.
The effect to be given to a receipt for the
consideration-money, so frequently inserted in
a deed of real property, has been the subject
of numerous and conflicting adjudications.
The general principle settled by weight of
authority is, that for the purpose of sustaining
the conveyance as against the vendor and his
m-3 Cranch, 311 ; i Bibb. 271. n-6 Mass. 422; 7
Id. 297 ; 3 N. Y. 321 ; 10 Id. 529 ; 25 Barb. 16 ; 5 Duer,
538 ; i Abb. Adm. 209, 397; but see i Bail. 174. 0-25
B irb. 16 ; 3 Sandf. 7. p-See ante, PAYMENT, q-i
Wash. C. C. 338; i W. & S. 521 ; 2 Johns. Cas. 438; 2
Johns. 4155 ; 13 Wend. 101 ; 3 McLean C. C. 265 ; 5 J.
I. Marsh. 78 ; but see 3 Caines Cas. 14 ; i Munf 460; i
Met. (Mass.) 156. r-4 Vt. 555: i Rich. HI; 16 Johns.
277 ; 23 Wend. 345 ; 2 Qill. & J. 493 ; 3 B. Mon. 3153.
s-io Md. 27. t-i Binn. 502; 26 Mo. 56; 4 Hill(N. Y.)
6(3. n-i6 VTend. 460 ; 4 Johns. 23; 14 Id. 210; 2 Hill
(N. Y.)554: 10 Vt. 96; 12 Id. 443: 3 N. H. 170; 4 Id.
2 9. 397: * M'Cord, 514; 7 Pick. 533; i Rand. 219; 4
1)sv. 355; 3 Hawks. 82; 6 Me. 364; 5 B. & Aid. 606;
5 Ala. 324; 5 Lond. Jur. 693; 2 Hairing. 354; 13 Miss.
privies, the receipt is conclusiva; 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 covenant in the deed, and the like,
the grantor may show that the consideration
was not, in fact, paid that an additional con-
sideration to that mentioned was agreed for,
etc. u And when the deed is attacked fo-
fraud, or is impeached by creditors as volun-
tary, and therefore void, or when the object is
to show the conveyance illegal, the receipt
may be explained or contradicted. T
IN FULL, ETC.
When a receipt acknowledges payment " in
full " of a specified debt, or " in full of all ac-
counts " or of " all demands" the instrument is
of much higher and more conclusive character.
It does not, indeed, like a release, operate upon
the demand itself, extinguishing it by any force
or virtue in the receipt, but it is evidence of
a compromise and mutual settlement of the
rights of the parties. The law infers from
such acknowledgment an adjustment of the
amount due after consideration of the claims
of each party, and the payment of the specified
sum as a final satisfaction.* This compromise,
thus shown by the receipt, will often operate to
extinguish a demand, although the creditor
may be able to show he did not receive all that
he justly ought.* If the rights of a party are
doubtful, are honestly contested, and time is
given to allow him to satisfy himself, a receipt
in full, though given for less than his just rights,
will not be set aside. Thus, in general, a re-
ceipt in full is conclusive when given with a
knowledge of the circumstances, and when the
party giving it cannot complain of any misappre-
hension as to the compromise he was making,
or of any fraud.' But receipts of this character
are not wholly exempt from explanation : fraud
or misrepresentation may be proved, and so
may such mistake as enters into and vitiates
the compromise of the demand admitted. 1 The
evidence in explanation must be clear and full,
and addressed to the point that there was not
in fact an intended and valid compromise of
the demand. For if the compromise was not
binding, the receipt in full will not aid it. The
receipt only operates as evidence of a com-
promise which extinguished the claim.'
238; 5 Conn. 113; i Harr. & G. 139; i Humph. 584; i
Gill. 84; i J. J. Marsh. 387; 3 Md. Ch. Dec. 411 ; 3
Ind. 212; 15 111. 230; i Stockt. Ch. 492. But there arc
many contrary cases. See i Me. 2 ; 5 Id. 232 ; 7 Johns.
341 ; 3 M'Cord, 552; i Johns. Ch. 390; I Harr. & J.
252; i Hawks. 64; 4 Hen. & M. 113; 2 Ohio, 182;!
B & C. 704. v-3 Zabr. 465 ; 3 Md. Ch. Dec. 6i ; 21
Penn. St. 480; 20 Pick. 247 ; 12 N. H. 248. w-io Vt.
49.1 ; 2 Dev. 247; Wright, 764; 21 N. H. 85. x-See
ACCORD AND SATISFACTION. y-$ Vt. 520; i Esp. 171 :
i Campb. 392 ; 2 Strobh. 203. -Brayt. 75 : i Campb.
iQ4; Coxe, 48; 2 Brev. 223; 4 Harr. & McH. 219 ; 4
Barb. 265; i Edw. Ch. 101, 427 ; 2 Harring. 392; i
Harr. & P. 44. a-26 Me. 88 ; 4 Denio, 166 ; 2 M'Cord,
320; 4 Wash. C. C. 562.
RECEIPTS RELEASES.
625
LARCENY AND FORGERY OF.
A receipt may be the subject of larceny b or
of forgery, and it is a sufficient " uttering " of a
forged receipt to place it in the hands of a per-
son for inspection, with intent fraudulently to
induce him to make an advance on the faith
that the payment mentioned in the spurious
receipt has been made. d
Receipt Account Generally.
( Place , Date .
Received of A. B. the sum of dollars on
account (.for ). C. D.
Receipt Chattels, Paper**, etc.
Place , Date .
Received of A. B. the chattels (or papers, etc.)
described in the following schedule, viz.: (describ-
ing them).
\If the chattels or papers are received for any spe-
cial purpose, add : For the purpose of, etc., specifying
the purpose.) C. D.
Receipt Debt.
Paid through Third Person.
Received this day of , of Mr. C. D., by
the hand of E. F., the sum of twenty-five dollars
in full, for certain goods (or otherunse) bought by
said C. D. of me, between the day of and
the day of . A. B.
Receipt Debt.
Due from Intestate.
$ Philadelphia.
Received this day of , of A. R., admin-
istrator of the estate of D. D. (late) of .de-
ceased, the sum of dollars in full of a debt
owing me by said D. D. , in his lifetime, for house-
hold goods, by me sold him. [Signed] A. B.
Receipt In Full of all Demands.
$ Place , Date .
Received of A. B. the sum of dollars in full
of ail demands against him. C. D.
Receipt In terest.
Received this day of , of C. D. , dol-
lars in full, for one year's interest of one thousand
dollars, due me the day of , on a bond of
said C. D., dated the day of . A. B.
Another.
Received this day of , of Mr. C. D., the
sum of dollars, for one year's interest of one
thousand dollars, due me on the day of
last, on a bond from said C. D. to me.
[Signed] A. B.
Another.
July .
Received on the within obligation dollars
interest. A. B.
Receipt Legacy.
Received this day of , of E. X., execu-
tor of the last will and testament of D. D., of
, deceased, the sum of four thousand dollars
in full of a legacy bequeathed me by said last will
and testament. [Signed] A. B.
Receipt Money.
$ Place , Date .
Received of A. B. dollars (for, etc.;
C. D.
Another On a Bond.
Received the day of , of C. D., the sum
of dollars, in part payment of the sum of one
thousand dollars, due me from said C. D., on his
bond, bearing date the day of . A. B.
Another for Money Paid by a Third Person.
$ Place , Date .
Received of A. B. , by C. F. , the sum of dol-
lars. C. D.
Another.
Received this day of , of Mr. C. D., the
sum of dollars, in part payment of a greater
sum due me on a bond executed by said C. D.
A. B.
b-z Abb. Pr. 211. c-Russ. & R. 227: 7 C. & P. 459.
d-M Ene. L. & Eq. 556. f-See Poth. Ob. nn. 608, 609.
Another.
January .
Received on the within obligation dollars,
principal. A. B.
Another.
Paid by a Third Person for the Use of Another.
Received this day of , of C. D. , esq. , the
sum of fifty dollars in full, for work done by Mr.
E. F. for work done said C. D. by the order and
for the use of said E. F. A. B.
Another.
Received this day of , of E. F., esq., the
sum of fifty dollars, by the order and for the use
of C. D., for work and labor in . A. B.
Receipt Purchase-Money.
Know all men by these presents :
That I, A. B. (of ), hereby acknowledge the
receiptfrom C. D. (of ), of five hundred dollars,
being the last payment, and in full, of one thou-
sand dollars, by said C. D. paid as the considera-
tion of the purchase of a certain tract and parcel
of land, situate in , etc. (as in the agreement,
bond or conveyance described).
That of the entire sum of the five hundred dol-
lars aforesaid, and every part thereof, I do, by
these presents, for me, my heirs, executors, and
administrators, acquit and discharge said C. D.
his heirs, executors, and administrators forever.
In witness, etc. A. B.
Another.
Received this day of , of the within-
named C. D., the sum of five hundred dollars,
being the full consideration and purchase-money
within mentioned remaining to be paid me.
Witness, E. F. A. B.
Receipt To take Care of and Redeliver
Property on l>emand.
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 ; <J IV = 4
drachms, they indicate troy weight.
ss = one-half; thus 3 8S = one-half drachm.
When Arabic numerals are used before the signs to
which they relate : thus 73 * drachm ; 5T<5 4
drachms, they indicate avoirdupois weight.
a a = of each.
Measures of Fineness of Powders.
80 meshes to an inch = very fine.
60 meshes to an inch = fine.
50 meshes to an inch = moderately fine.
40 meshes to an inch = moderately coarse.
20 meshes to an inch = coarse.
Astronomers' and Geographers' Meas-
ures.
60" (seconds) = x' (minute), or I geographical mile.
60' = i (degree).
30 = I sign of the zodiac (S).
xa S = i great circle of the heavens.
60 = i sextant.
360 or 6 sextants = x C. circumference.
i geographic mile = 1.15 statute mile.
3 geographic miles = x league (L).
60 geographic miles, or 69.16 statute miles = degree
(Deg.) of latitude or of longitude on the equator.
69.16 miles is the average degree of latitude a usd
by the United States Coast Survey.
Measure of Books.
x sheet folded in
3 leaves = a folio.
4 leaves = a quarto (410.)
8 leaves = an octavo (8vo.)
12 leaves = a duodecimo (xsmo.)
16 leaves = a i6mo.
18 leaves = a i8mo.
34 leaves = a 24010.
32 leaves = a 321110.
64 leaves = a 641110.
Civil Engineers' Measures.
1 link (1) = I foot (ft.)
xoo 1 (or ft.) = i chain.
5280 ft. (1769 yds.) = I mile (mi.)
Measures of Copying.
72 words = I folio, common law.
90 words = i folio, chancery.
xoo words = x folio, statute law.
2 figures = i word, statute law.
For Measuring Goods Sold by the Tard.
2# inches = I sixteenth.
3 sixteenths or 4^ inches = I eighth.
a eighths or 9 inches = I quarter (qr) or fourth.
4 qrs = x yard.
1 yard U. S. Standard = 3 feet or 36 inches.
Mariners' Measures.
6 feet = i fathom (depth at sea).
X3O fathoms = x cable's length,
x nautical mile or knot =1.15 statute miles.
3 nautical miles or knots = x league.
Measures of Length.
Generally.
13 inches = x foot.
3 feet = i yard.
5% yards = x rod or pole.
40 poles = I furlong.
8 furlongs = I mile.
69 1-15 miles = i degree of a great circle f th
earth.
Measures of Cloth.
X nail = 3j inches.
4 inches =* x quarter.
4 quarters = x yard.
5 quarters = x ell.
Measures of Depth.
6 feet = i fathom.
6 4 4
WEIGHTS AND MEASURES.
Measure of Height of Horses.
In measuring horses 4 inches = x hand, the measure
being taken directly over the foreshoulder.
Measure of Land.
7 92-100 inches = I link.
100 links = I chain.
IO square chains = Z acre.
640 acres = I square mile or section.
36 square miles = X township.
Measures of Paper.
34 sheets = X quire.
3O quires = I ream.
3 reams = I bundle.
5 bundles =- I bale.
Measures of Stolidity and Capacity.
Measures of Capacity for Commodities Sold by
Heaped Measure.
3 gallons = I peck.
8 gallons = I bushel.
1 bushel U. S. Standard = 215O.42 cubic
inches.
3 bushels = I sack.
12 sacks = x chaldron.
Measures of Capacity of Liquids, etc.
For liquids several denominations have heretofore
been adopted: for beer the firkin of 9 gallons, the kidder-
kin of x8, the barrel of 36, the hogshead of 54, and the
butt of 108 gallons. For wine or spirits there are the
anker, runlet, tierce, hogshead, puncheon, pipe, butt,
and tun; these are, however, rather the names of the
casks in which the commodities are imported than as
expressing any definite number of gallons. It is the
practice to gauge all such vessels and to charge them
according to their actual contents.
4 gills = I pint.
3 pints = I quart.
1 quarts = I gallon,
gallon U. S. Standard 231 cubic inches.
2 gallons = I peck.
8 gallons = x bushel.
8 bushels = I quarter.
5 quarters = I load.
The last four denominations are used only for goods,
not liquids.
Measures of Solidity.
1728 cubic inches = x cubic foot.
37 cubic feet = x cubic yard.
x cord stove wood = 128 cubic feet.
Measures of Surface.
144 inches = x square foot.
9 square feet x square yard.
305^ square yards = x perch or rod.
40 perches = x rood.
4 roods or 160 perches = I acre.
640 acres = x square mile.
Surveyors' Measures.
7.92 inches =* i link (1).
100 1 = I chain (ch).
80 ch = i mile (mi).
See MEASURES OF LENGTH, above.
Measures of Things.
13 = I dozen.
12 dozen = I gross.
12 gross = I great gross.
Measures of Time.
60 seconds = X minute.
60 minutes = I hour.
24 hours = I day.
7 days = i week.
28 days or 4 weeks = x lunar month.
28, 20, 30, or 31 days = x calendar month.
12 calendar months = x year.
365 days = I year.
366 days = I leap year.
The second of time is subdivided like that of angular
measure.
Measures by Weight.
The following articles are generally sold by the buthel,
hundredweight, or tor, and are generally regulated by
statute :
Apples, dried; barley; beans, white; beans, castor;
bluegrass seed ; bran ; buckwheat ; clover seed ; coal
(anthracite, bituminous, cannel, stone, and all other
mined coals) ; corn, Indian, in the ear ; corn, Indian,
shelled ; corn meal ; flax seed : hair (for plastering) ;
hay ; hemp seed ; hominy ; Hungarian grass seed ; lime
(unslaked); malt; millet seed ; oats, shelled; onions;
peaches, dried ; peas, ground ; potatoes, Irish ; potatoes,
sweet; rye; salt; salt, fine; timothy seed; turnips;
wheat, etc., etc.
Weights are of two kinds, avoirdupois and troy.
Apothecaries' or Pharmaceutists'
Weights.
Used in Prescribing and Mixing Dry Medicines.
(Dry medicines are sold by avoirdupois weight, and
prescribed and mixed by troy weight.)
20 grains (gr.) = x scruple (Sc. or) y
3 9 = I drachm (Dr. or) !J
8 5f = * ounce (oz. or) 3
12 ^ = x pound troy (H>).
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:i<j 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 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.
NETADA.
In general. A claim, debt or demand
for less than $300 may be collected in a Justice's
Court. When over $300 in 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, or
j where money is not secured by lien or pledge.
Parties to the suit, or interested therein,
I are competent Witnesses.
Costs of suit must be secured in advance^
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 I to
IO Days in Justices' Courts.
Execution may issue in any Court after en-
tering of judgment, unless such execution is
stayed. Such stay is allowed by order of tbe
Court.
COLLECTION OF CLAIMS. DEBTS AND DEMANDS.
655
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 personal
property only upon levy of an execution.
NEW HAMPSHIRE:.
Ill general. A claim, debt or demand
for less than $13.33 mav De collected in a Jus-
tice's Court, and if less than $ioo in a Police
Court. When over $100 in the Supreme Judi-
cial Court.
Arrest for debt is allowed.
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 14 to 28 Days between the ser-
vice of summons on the Debtor and obtaining
of judgment in the Supreme Judicial Court,
and 14 Days in Justices' Courts.
Execution may issue in any Court immedi-
ately after 24 hours' entering of judgment.
The Judgment is a lien upon personal property
only upon levy of an execution or attachment.
NEW JERSEY.
In general. A claim, debt or demand,
for less than $200 may be collected in a Justice's
Court ; $300 in District Courts in cities ; over
$100 in the Court of Common Pleas or Circuit
Court ; over $200 in the Supreme Court.
Arrest (except females) for debt is only al-
lowed in cases of fraud, or on the Debtor's
removal, transfer or concealment of property
to prevent its being realized by his creditors.
Attachment is allowed against Non-Resi-
idents, and against Debtors in cases of fraud,
whether the debt is due or not. Other creditors
may apply under the writ and receive pro rata,
Parties to the suit, or interested therein,
are competent Witnesses.
Costs of suit must be secured in advance,
if required by the defendant, the plaintiff being
a Non-Resident, or the suit will be dismissed.
It is at least IO to 30 Days between the ser-
vice of summons on the Debtor and obtaining
of judgment in the Common Pleas, Circuit
or Supreme Court, and 5 Days in Justice's
Court, or City District Courts.
Execution may issue in any Court after enter-
ag 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 Common Pleas 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
upon levy of an execution.
NEW MEXICO.
Ill general. A claim, debt or demand
for less than $100 may be collected in a Justice's
Court. When over $100 in the District 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, if demanded, must be secured
in advance, or the suit will be dismissed.
It is at least 5 to 30 Days between the ser-
vice of summons on the Debtor and obtaining
of judgment in the District Court, and 5
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 office
of the Clerk of the Probate 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.
NEW YORK.
In general. A claim, debt or demand
for less than $200 may be collected in a Justice's
Court. When less than $250 in the New York
City District Courts. When less than g 1,000
in a County Court. When less than $2,000 in
the New York City Marine Court. The Su-
preme Court has unlimited jurisdiction.
Arrest and Imprisonment for debt is not
allowable except for fraud and tort damages.
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 by the defendant, or the suit will be
dismissed.
It is at least 6 to 20 Days between the ser-
vice of summons on the Debtor and obtaining
of judgment.
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 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 le\y
of an execution.
NORTH CAROLINA.
In general. A claim, debt or demand
for less than $200 may be collected in a Justice's
Court. When over $200 in the Superior
Court. When over $200 in the Superior Court.
Arrest allowed only in frauds, tort dam-
ages, etc.
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 judg-
ment in the Superior Court, and 2 Days in
Justices' Courts.
Execution may issue in any Court, after
entering of judgment, unless such execution is
COLLECTION OF CLAIMS, DEBTS AND DAMAGES.
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 Superior 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.
OHIO.
In general. A claim, debt or demand
for less than 300 may be collected in a Justice's
Court. When over $100 in the Common
Pleas and Superior Courts.
Arrest for debt is allowed in cases of fraud.
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 need not be secured in ad-
vance, except as to Non- Residents and Cor-
porations.
It is at least 29 Days between the service of
summons on the Debtor and obtaining of
judgment in the Common Pleas or Superior
Court, and 3 Days in Justices' Courts.
Execution may issue in the Common Pleas
or Superior Court after entering of judgment,
and in Justices' Court in 10 Days, 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 Common Pleas 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.
OREGON.
In general. A claim, debt or demand
for less than #250 may be collected in a Jus-
tice's Court. When less than $500 in the
County Court. The Circuit Court has unlim-
ited jurisdiction.
Arrest for debt is allowed, in case of fraud.
Attachment is allowed upon an unsecured
contract for the direct payment of money.
Parties to the suit, or interested therein,
are competent Witnesses.
Costs in actions in Justices' Courts may, in
the discretion of the Justice, be secured in
advance when demanded by the defendant,
or the action will be dismissed.
It is at least 10 Days between the service
of summons on the Debtor and obtaining of
judgment in the Circuit Court, and at least 5
Days in Justices' Courts.
Execution may issue in any Court immedi-
ately 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 office
of the Clerk of the County Court and docketed
in the Circuit Court of the county where ren-
dered, 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 ex-
ecution.
PENNSYLVANIA.
In ffeiieral. A claim, debt or demand for less
than $300 may be collected at an Alderman's, Justice's
or Magistrate's Court. In Philadelphia, less than
$100, Magistrate's Court. When over 100 in the Com-
mon Pleas Court.
Arrest for debt is allowed in cases of fraud.
Attachment is allowed against Debtors in
cases of fraud, and against Non-Residents.
Parties to the suit, or interested therein, are
competent Witnesses.
Costs of suit must be secured in advance,
when required by the defendant, if plaintiff is
a Non-Resident, or the suit will be dismissed.
It is at least 15 to 30 Days between the ser-
vice of summons on the Debtor and obtaining
of judgment in the Common Pleas Court, and
5 to 8 Days in Justice's Court.
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 office
of the Clerk of the Common Pleas 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 upon
levy of an execution.
RHODE ISLAND.
In general. District Courts have ex-
clusive jurisdiction except as otherwise pro-
vided, in civil cases up to $300. Common
Pleas Courts have original jurisdiction of claims
of $300 and upwards, and are concurrent with
Supreme Court.
Arrest for debt allowed, except as provided.
Females not arrestable on original writ on
contracts.
Attachment allowed against Non-Resi-
dents, and against Debtors in cases of conceal-
ment, fraud or absconding.
Interested parties are competent Witnesses.
Costs must be secured in advance, or suit
dismissed.
District Court writs are returnable in not
less than 6, or more than 20 Days before return
day.
Judgment may be entered on second day
of term, where no defence offers. Judgment
is not a lien on real estate.
Execution may issue in 24 hours after judg-
ment, unless otherwise ordered. Court may
stay for cause.
SOUTH CAROLINA.
In general. A claim, debt or demanfl
for less than $100 may be collected in a Jus-
tice's Court. The Common Pleas Court has
unlimited jurisdiction.
Arrest 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 01
not.
Parties to the suit, or interested therein,
are competent Witnesses.
For Oklahoma and South Dakota see page 665.
COLLECTION OF CLAIMS, DEBTS AND DEMANDS.
657
It is at least 20 Days between the service of
summons on the Debtor and obtaining of
judgment in the Common Pleas Court, and
20 Days in Justice's Court, where more than
25 dollars are demanded, and 5 Days where
less than that amount is demanded.
A certified transcript of a judgment dock-
eted in the Circuit Court Clerk's office of the
county where rendered, is a lien upon the real
property of the judgment debtor therein.
Execution may issue in any Court after en-
tering of judgment.
TENNESSEE.
In general. A claim, debt or demand
for less than as follows ; Accounts, Bills of
Exchange against acceptor, $500, Promissory
notes against makers and indorsers, where de-
mand and notes are expressly waived, $ 1,000
(against other indorsers, $500), may be col-
lected in a Justice's Court. When over 50
in the Circuit Court.
Arrest for debt is not allowed.
Attachment is allowed against Non-Resi-
dents, and against Debtors in case 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
judgment in the Circuit Court; in Justices'
Courts the date of return is fixed by the officer
and judgment had on day of trial.
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 office
of the Register's office of the county where
rendered, is a lien upon the Debtor's real es-
tate in such county. The judgment is a lien
upon personal property only upon levy of an
execution.
TEXAS.
In general. A claim, debt or demand
for less than $200 may be collected in a Jus-
tice's Court. When over $200 and under
$1,000, in the County Court. When over
$500 in the District Court.
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,
or the suit will be dismissed.
Citations shall be served at least ten days
before return day of Courts, to compel defend-
ant to plead at return day. Citations issued
too late, or which cannot be served in time,
must seek service to next term of Court.
Execution may issue in any Court after en-
tering of judgment, unless such execution is
stayed. Such stay is allowed in Justices'
Courts only.
UTAH.
In general. A claim, debt or demand
for less than. $300 may be collected in a Jus-
tice's Court. When over 300, in the Dis
trict Court.
Arrest for debt is allowed after judgment,
and execution returned unsatisfied, and on
affidavit of judgment creditor, and then only
for nomination as to his property.
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 if plaintiff is a
Non- Resident.
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 2 to
10 Days in Justices' Courts.
Execution may issue in any Court after en-
tering of judgment in that Court.
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.
VERMONT.
In general. A claim, debt or demand
not above $200 mav be collected in a Justice's
Court. When over 200 j n the County Court.
Arrest for debt only in special cases is al-
lowed. Females are not subject to arrest for
debt.
Attachment is allowed against Non-Resi-
dents, and against Debtors in cases of fraud,
whether the debt is due or not.
Trustee Process is allowed in all actions
founded upon contract, express or implied,
where the claim sought to be enforced and
the credits in the hands of the trustee exceed
$10.
Parties to the suit, or itnerested 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 County Court, and 6 Days
in Justices' Courts.
Execution may issue in any Court after
entering of judgment.
VIRGINIA.
In general. A claim, debt or demand
for less than $100 may be collected in a Jus-
tice's Court, but if over $20, defendant may
remove to County Court. The Circuit Court
has general jurisdiction.
Arrest for debt not allowed, except of ab-
sconding debtors.
Attachment is allowed against Non-Resi-
dents, and against Debtors in cases of fraud,
whether the debt is due or not
658
COLLECTION OF CLAIMS, DEBTS AND DEMANDS.
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 Circuit Court, and 60
Days in Justices' Courts.
Execution may issue in any Court after
entering of judgment, unless stayed by forth-
coming bond.
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 coun-
ty where rendered, is a lien upon the Debtor's
real estate in such county. The judgment is
i lien upon personal property only upon levy
jf an execution.
WASHINGTON.
In general. A claim, debt or demand
for less than $100 may be collected in a Jus-
tice's Court. The Superior Court has general
jurisdiction.
Imprisonment for debt not allowed ex-
cept in case of absconding debtors. (Con. of
State.)
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, if brought >y 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.
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and
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Years.
Accounts
and Book
Debts.
Years.
Notes
and
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Years.
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ments.
Years.
Special-
tics. A
Years.
Months.
Years.
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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
r<m Urination of Agency 53
of Contracts 2O2
of Conveyances 266
Conflict of Law 478-481
<?onjctnre, Evidence 439
Connecting Railroad Companies'
Duties 128
Consequences of Divorce 546
Consideration of Assignment 96
in Bills, Bonds, A Votes 15O-153, 2O3
in Contracts 194, 2O2
Consignees 84
Conspiracy 494
Constraint 46
Construction of Agents' Authority 55
of Bills, Bonds, and Notes 153
of Contracts, etc 2O6, 213
of Copyright 4O1
of Legacies .. 366
of Statute Law 538
Consultations Prior to Contract 437
Contagions Disorders 495
Contracts 193-263
of Apprenticeship 93
of Authors and Publishers 4O1
Distinguished from Torts or
Wrongs 635
in Evidence 455
Forms 223-263, 4O2
Law of Place of. 535
Loss of 542
of Marriage 543
Measure of Damages, Partly in
One State and Partly in An-
other 535
Of Partnership 549, 555, 556, 558
Receipts in 623
Contingent Estates 429
Contusions, Evidence of. 518
Conversations Prior to Contract. . . 437
Conveyances Affecting Real Estate,
Acknowledgment of. 14-45
Covenants in 266-268
Forms 273-396
Loss Of 5*2
Mode of Execution 263-396
Conviction 495
Co-Obligors in Contracts ,~ 209
Cool Blood 495
Cooling Time 495
Coparcenary Estates 429, 615
Co-Pledgee 137
Copies, Evidence 439,442
of Laws and Ordinances, Evi-
dence 444
of Records, etc 451
Copy 4O3
Copying, Measure 643
Copyists 4C.1
Copyrights 396-417
Forms, Assignments 399
Certificates 413
Contracts 242-244, 4O2, 4O3
Correspondence 414, 415
Pleadings 411,413
Coroners 519-521
Corporations 46, 417-42O
Bills, Bonds, & Notes of. . 159, 144-146
Real Estate 613
Corpus Delicti 495
Correction, House of. 5O2
Correspondence with Patent Office 596
Corruption 496
Counsellors at Law 80
Confidential Communications
to 438
Counter Affidavit 5O
Bond 179
Course of Business 121
Courses of Real Property 613
Court Guides, Copyright 4OO
Court, Payment into 6O7
Cousins, Legatees 367
Covenants in Conveyances 266-268
Credibility of Witnesses 439
Creditors of Partnership 553
Creeks 613
Crimes, Distinguished from Torts. . 635
Criminal Actions, Evidence in 45O
Law 481-51O
Offences 481-51O
Pleadings 61O
Criminating Witness 439
Crops, Emblements, etc 473
Cross-Examination of Witnesses.. . 455
Cruelty to Animals 89
Cncking Stool 496
Culprit 496
Cumulative Legacies 366
Currency, Offences Against 482
Cnrtesy, Estates in 429, 613, 615
Curtilage, Real Property 613
Custody and Work 133
Custom in Contracts 2O7, 2O9
Evidence of 439
Cuts. See Copy right 413
CyPres [363
Damage Peasant 422
Damages 421
on Bills and Notes, etc 176
Carriers 121,128
in Contracts 2O9
Evidence of 439
in Insurance 466
Date, in Bonds 18O
In Contracts ... 2ie
682
TO LAW.
Page
Date of Patent 586
of Written Instrumental 634
Day 634
Day-Book 12, 13
Dead Body 496
I>ead 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
<.<staii.ni, Evidence of
Gifts Between Living Persons
in Prospect of Death
Gist of Trespass
Good Behavior
Consideration
Faith in Bills, Bonds, and Notes
Goods in Wills
Measure of
and Chattels
in Wills
Gon t, Evidence of
Grand Jurors, Evidence
Larceny
Grant, etc ,
Gratis
Gratuitous Distribution, Copy-
right
Grave, Tiolation of.
Ground Bent
Growing Crops
Guaranty
Guardians, Foreign
Guests
Guide Books .
Guilt...
Pace
643
533
461
461
639
502
2O4
151
364
643
5O2
364
523
453
502
27O
132
404
5O2
617
473
155
ISO
133
4O4
502
llabeiidum in Conveyances 27O
Hallucination, Evidence of. 523
Handwriting, Evidence 442
Hanging, Evidence of Death by. . . . 52O
See Execution 498
Hard Labor 5O2
Hazardous Contracts 213
Heaped Measure 643
Hearings in Patent Cases 587
Hearsay Evidence... ~~ 443
Heirlooms, Beal Property 617
Heirs, Legatees 367
Hereditaments 27O
Hermaphrodites 524
Hire of Things 132
Hiring Horses 9O
Homicide 5O2
Excusable 498
Horses 9O
Measure of. 643
Household Furniture in Wills 364
Stuff 365
Houses, Bawdy 491
Breaking 5O3
of Correction 5O2
Gaming 5O2
of Ill-Fame 5O2
Beal Property 617
How to Obtain Copyright 414
Patent 582-6O5
Hunting Animals 91
Husband, Obligations, Bights 544
and Wife, Evidence by 438, 453
Identity, Evidence 443
of Partnership Name 561
Idiocy, Evidence of. 524
Idiots, etc 47,37O
Ignorance of Fact 462
of Law 462
Ill-Fame, House 002
ft*
Illegal Considerations 204
in Bills, Bonds, and Notes. . . 101
Illegality of Contracts 213
Illusion, Evidence of. 524
Imbecility, Evidence of. 525
Immoral Considerations 2O4
Works, no Copyright in 4O9
Immovable Fixtures 473
Impairing the Obligation of Con-
tracts 217
Impeachment, of Public Officers... 503
of Witnesses 443, 455
Implied Warranty in Sales 631
Importation of Literature 4O1
Impossible Considerations 2O4
Impossibility of Performance 219
Impotence, Evidence of 526
Improvements, Beal Property 617
Inadequate Damages 422
Inception of Wills 365
Incest 5O3
In Chief, Evidence 443
Incnmbrances, Covenant Against. 267
Real Property 617
Indecency 5O3
Indecent Works, No Copyright 409
Indenture, Conveyances 87O
Indictment 503
Bills of. 491
Indirect Evidence 443
Individual Name Used as Partner-
ship Name 561
Offences Against 482
Indorsee's Bights 157
Indorsement of Bills, Bonds, and
Notes 155
by Partners 556
Indorser's Liability 156
Bights 157
Infanticide, Evidence of 526
Infants, Evidence 403
Bills, Bonds, and Notes of. 159
Inferences, Evidence 444
Influence, Undue. See Persuasion,
in Wills 370
In formation 5OS
Infringement of Copyright 4O4
Inheritance 429
Estate in 615
Injuries 636
Malicious 5O5
to Passengers 128-13O
to Plain tiff's Possession in Tres-
pass 640
Innings, Beal Property 617
Innkeepers 133-135
Lien 134
Insanity, Evidence of. 527
Inscriptions, Evidence 444
Inspection, Personal 434
Instructions to Agents O7
Instruments Affecting Beal Estate,
Acknowledgment of 14-45
Instruments of Evidence 434
Insurable Interest, Insmranee 465
of Carriers 124
Insurance 463-468
Brokers 84
Intended to be Becorded 27 W
LAW.
Page
Intention in Contracts O8
to Commit Crime OO3
Inter Paries 27O
Intercourse Between Nations 013
Interest, Agent's Powers Coupled
With 58
Insnrable 465
on Money 468-471
in Property Bequeathed 367
." u ter ferences in Patent Cases 587
^international Law 513-515
Interpretation of Contracts 213
Interpreters, Confidential Comma*
uications to 438
Evidence of 453
Evidence Through 444
Intestacy of Owner of Copyright .. 4O5
Inventors 414
In Terrornmin Wills........... 365
In Testimony Whereof. 27O
In Witness Whereof 27O
Irregular Bills, Bonds, and Notes. . 154
Irrelevant Evidence 444
Irrigation, Real Property 617
Irritant Poisons 53O
Islands, Real Property 618
Issue, Proof of. 449
503
5O3
Jail
Jeopardy
Joint Bonds, Joint and Several
Bonds 179
Contracts .. _.... 814
Owners of Copyright..... 4O5
Ten ancy 429, 615
Tenants, Partners as 557
Jointure 429
Journal 12,13
Journalizing 9
Judicial Acts 47
Mortgages. 27O
Notice 434,444
Recognition 434, 444
Records and Transcripts in Evi-
dence 451
Sales 270
Judges' Evidence 444,453
Judgment Contracts 214
and Warrant of Attorney 83
Jurat 51
Jurisprudence. Nee LAW 476, 538
Justice, Fugitives from 5O1
Public Offences Against 481
Justifiable Homicide 498-5O2
J nstification of Agents, etc. 57
Keys, Real Property 618
Kidnapping 5O4
Kinds of Consideration 2O4
of Performance 219
Knowledge of Crime 5O4
Labor, Hard 5O2
as a Consideration 2O6
Lading, Bill of. 113-121
Land 618,611-622
Measure of 643
Landlord and Tenant 471-476
.Landlords 474
Lapse of Tlme.~~..~.~-...~~ 684
Larceny aoa, 5O4
Grand 5oa
of Receipts 625
Last Will 865
Latitude, Measure of. 643
Laws 109,434,444, 476-538
Law, Admiralty 476,477
Civil .- 477
Code 477
Common 477, 478
Conflict of 478-481
Criminal 481-51O
of Domicil 510,511
Ex Post Facto 011,012
Foreign O12
Forum 012,013
Ignorance Of 462
International 013-515
Medical 015-584
Military OS4
Municipal O34
of Place 129, 534-536
of Place of Situation of the
Thing 536
Presumptions in Contract* 2O9
Prospective O36
Report 036
Retrospective 536, 537
Statute 537.538
Lawyers 8O
Leading Cases 1O9
Questions 445
Leases 312,313
Acknowledgment of. 14-45
Forms 313-334
Ledger 11,12,14
Legacies 365
Legal Forms, Copyright In 4O6
Estates 429
Legality of Contract Determined
by Law of Place 530
Legatees 867
Legislation, Contracts Concerning 214
Length, Measures of 643
Letters of Attorney 72, 8O
as Contracts 214
Payment by 218
Letting Things 132
Liabilities of Agents 60
of Principals Concerning Ag'ts,
etc 86,87
Liability for Torts or Wrongs 636
Libel 637
Libellous Works, no Copyright 4O9
Librarian of Congress 4O6, 4O7
Library at Patent Ofiice 597
Liens 538-542
Copyright 4O8
for Freight 123
1 pon Pledge 137
Life, Evidence of, in Infanticide 526
Estates 429,610
Lightning, Evidence of Death by. . 52O
Limitation to Actions in Bills,
Bonds, and Notes 177
of Estates 432
of Interest 469
of Prosecutions for Crime 503
636
INDEX 10 LAW.
Page
Limitations In Contracts 2O1
Limited Partnership 561, 562
Lines, Real Property 618
and Corners, Real Property 371, 618
Liquid IMeasnre 643
Liquidated Damages 423
Literature. See Copyrights 413
Litigation, Prevention of, a Con-
sideration 2O4
Lives of Individuals, Offences
Against 481
Loans for Consumption 135
for Use 135
Local Copyright 408
Locative Calls 271
Loss, Insurance 465-467
of Pledge ^. 137
Lost Papers 445,542
Property 542, 543
Lucid Intervals, Evidence of. ....... 528
Lunatics, etc 47, 37O
Lying in Wait 5O5
Maintenance, Crime of. 5O5
In Contracts 199
Mailing Promissory Notes 153, 154
Malice _ 5O5
in Slander 639
Malicious Injuries 5O5
Mischief T 5O5
Trespass 5O5
Malpractice 529
Management of Partnership Busi-
ness ... 555
Mandate 136
Mania-a-Potn 518
Manslaughter 5O5
Manstealing 5O4
Manuscripts, Infringement on. . . 4O8
Maps. See Copyright. ...._. 413, 414
Mariners' Measures. 643
Maritime Contracts 215
Liens , 541
Market, Forestalling 499
Marriage 543-546
as a Consideration 2O4
Married Women's Bills, Bonds, and
Notes 159
Injuries to 129
Masters of Ships 86
Hen 541
Material Men's Lien 541
Maxims 11O
Mayhem 5O6
Measure of Damages 423
in Insurance 466
Measures and Weights 642-644
Medical Evidence 445
Law 515^534
Members of a Partnership 554
Memorandums 215
Insurance 466
Memory, Refreshing 451
In Wills 370
Mercantile Definitions 8
Law. See ACCOUNTS ; AGENCY ; BAIL-
MENTS ; BILLS, BONDS, AND NOTES ; CON-
TRACTS ; INSURANCE ; INTEREST ; LAW ;
PARTNERSHIP, ETC., ETC.
Pugt
Merger of Crimes 5O6
of Estates 432
Method or Plan In Copyright 411
Metric System of Weights and
Measures 642, 643
Midwife 529
Military Law 534
Mills, Real Property 618
Mind and Memory in Wills 37O
Mineral Poisons 53O
Mines, Real Property 618
Ministerial Acts 47
Miscarriage 516
Miscarriage of Another. See Fraud 458
Mischief, Malicious 5O5
Mischievous Animals 91
Misconduct 47
Misdemeanors 5O6
Misnomer in Contracts S15
Misreading of Contracts 215
Conveyances 271
Mlsrecital of Contracts 215
of Conveyances 2t71
Misrepresentation In Contracts 215
Mistakes in Contracts 215
Mitigation of Damages 424
Mode of Presentment of Bills and
Notes 166
Models for Patents 585, 591
Modifications of Contracts 215
Moiety 368
Money. See Interest 468-471
Real Property 619
Repayment by Patent Office 595
Tenderof. 222
Monomania, Evidence of. 529
of Testator 37
Monsters 518
Mou th 634
Monuments, Real Property 619
Moral Obligations as a Considera-
tion 2O4
Morals, Contracts Contrary to 2O3
Morality, Offences Against 482
More or Less in Conveyances 271
Mortgages* 334, 335, 48O
Acknowledgment 14-45
Judicial 27O
Forms 335-363
of Personal Property 334-363
of Real Property . ~ 334-363
Movables in General, Law of. 471
in Wills 368
Municipal Law..... 534
Muniments of Title 273
Murder 5O6
Musical Compositions. See Copy-
right 413
Mutilation. See Mayhem 5O6
Mutiny &O
Mutual Promises as a Considera-
tion 2O
Mntnal Rights and Obligations.
See AGENCY ; and LANDLORD AND TENANT
Mystic Testaments 368
Naked Contracts - 215
Naked Powers of an Agent Coupled
with an Interest 58
IN1>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
<fcnarries. Real Property 619
'lujisi Corporations 42O
( ;i <-s i i <> 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<I Construction of. ................. 23O
Maine.
Acknowledgments ......... ........... Jo, 7
Deeds ...... ............................. 282
Mortgages ......................... 37, 338
Wills ..................................... 375
I MM-;* TO FOBMfl.
Page
Manager of Furnace, Contract with 246
Manufactory, Lease 330,331
Manufacturer's Contracts with
Agents, Brokers, and Commission
Merchants, etc 249,250
Manufacturing, Contracts for.. 25O, 251
Barrels 25O
Boots, etc 25O
Brick 25O, 251
Patented Articles 251
Shoes 251
Marginal Invoices to Bills of Lad-
ing 118-121
Marriage of Daughter. Niece, etc.,
Provisions in Will 382,383
or Forfeiture, Bond for 191
Married Woman's Will, etc 386
Maryland.
Acknowledgments , 27
Deeds 282
Mortgages 338
Wills 375
Massachusetts.
Acknowledgments 27
Deeds 282
Mortgages 338
Wills 375
Master's Deed in Chancery 3O7
in Foreclosure 289
in Partition 288, 289
Measures and Weights 642, 644
Mediterranean Out and Home,
Charter Party for 24O
Memorandums in Chattel Mort-
gages 36O
of Copyright Agreements. . . 4O2, 4O3
of Unwritten, Verbal, or Nun-
cupative Will 396
Merchant and Bookkeeper, Con-
tract Between 245
Metes and Bounds, How Described
in Deeds, etc 3OO
Michigan.
Acknowledgments 27, 28
Deeds 282
Mortgages 338
Wills 375
Mill Lease 331
Property, Contract for Sale of
258, 259
Mining Lease 331
Minnesota.
Acknowledgments 28
Deeds 282
Mortgages 338
Wills 375-376
Minor's Acknowledgment 16
Mississippi.
Acknowledgments 28, '29
Deeds 282
Mortgages ._. 338
Wills _ 376
Missouri.
Acknowledgments 29
Deeds 282,283
Mortgages 338
Wills 376
Mistakes, Deed to Correct 3O7, 308
Moneys.
Assignment of JO5
Bonds for Payment of 181
Receipt for 625
Montana.
Acknowledgments 29
Deeds 283
Mortgages 338, 339
Wills 376
Mortgage and Bond, Contract for
Sale of......
257
Mortgages.
Assignment of 1O5
Bond to Pay and Cancel 191
Deeds of Tenants, Subject to 2H5
Security, Contract to Change 261
Mortgaged Prem ises, Deed of 285
Mortgages S35, 363
Alabama 335
Arkansas 335
California 335
Colorado 335j
Connecticut 835, 339
Delaware 336
District of Columbia 336
Florida 33tf
Georgia 336
Illinois 336
Indiana 336, 337
Iowa 837
Kansas 337
Kentucky. 337
Louisiana 337
Maine 337
Maryland 337,338
Massachusetts 338
Michigan 338
Minnesota 338
Mississippi. 338
Missouri 338
Montana 338
Nebraska 338,339
Nevada 339
New Hampshire 339
New Jersey 339
New Mexico 34O
New York 339,340
North Carolina 34O
Ohio 34O
Oregon 34O
Pennsylvania 34O, 341
Rhode Island 341
South Carolina 341
Tennessee 341
Texas 341
Utah 341
Vermont 341,342
Virginia 342
West Virginia 342
Wisconsin '. 342
of Personal Property 356-363
Affidavits for Renewal 36O
Annual Statement of Mortgagees' Inter-
est, etc 36O
Bill of Sale and Chattel Mortgage
357, 358, 359
Continuing Chattel Mortgages, Affida-
vits and Statements for 36O
Default, Possession of Goods, etc., until 362
General Forms 356, 362
Instalments, Payment by 362
Interest of Mortgage, Affidavits and
Statements of 36O
Memorandums, etc 36O
Notice of Sale of Mortgaged Property,
etc 361
Payments 362
Renewal, Affidavits 36O
Schedules . 361
Security on a Note 362,363
Statements, Annual, of Mortgagees' In-
terest, etc 36O
Stock, Chattel Mortgage of 862
Surety on a Lease 363
Warranty Covenant, etc 363
With Powers of Sale 36O, 361
of Beal Property.
Acknowledgment of Mortgages. See
title ACKNOWLEDGMENTS, etc., above.
Additional Charge on Mortgaged Prem-
ises 352
Assignments of Mortgages 848, 349
By a Corporation 349
Covenants for 843
Short Form 348
With Power of Attorney 848, 349
Assurance Covenant. 848
45
704
INDEX TO 1 OHMS.
agos of Real Property. (Con-
Bond, Secured by Mortgage 349
Commencing Clauses in Mortgages 343
Conclusions in Mortgages 345
Conditions and Provisos to Mortgages . 343
Corporation Assignment 349
. Mortgages 35O, 351
Covenants in Mortgages 343,345
Assignment 343
Assurance 343
Enjoyment of the Premises, etc 343
Entry upon Default 243
Fire Clause 343
Incumbrances, Free of 343
Lease, Mortgage of 343
Payment of Money 344
of Taxes 344
Power to Assign 344
Reassignment, etc 344
Receipt, etc 344
Right to Convey 344
Sale on Default, etc 344, 345
on Delivery 344
on Notice 345
Discharges or Releases of Mortgages. .
351, 354
in Part 354
Dower and Homestead Exemption Re-
leased 349
Dower not Released 35O
Enjoyment of Premises, Covenant for. . 343
Executors, Mortgage to 351, 352
Extension of a Mortgage 352
Fire Clause 343
Foreclosure, Covenant for 343
Further Charge on Mortgaged Premises 352
General Forms of Mortgages 345-347
Habendum in Mortgages 342,343
in Fee Simple 343
Homestead Exemption and Dower Re-
leased 349
Incumbrances, Covenant Against 343
Indemnity to Mortgagee, etc 352, 353
Indorser's Security by Mortgage 355
Introductions to Mortgages 342
Lease, Covenant Concerning 343
Leased Premises, Mortgage of 353
Life, Mortgage for Support During. .... 353
Note, Secured by Mortgage 354
Payment of Money, Covenant for. 344
of Taxes, Covenant for 344
Power to Assign, Covenant of. 344
Promissory Note Secured by Mortgage 354
Provisos and Conditions in Mortgages . 343
Receipt, etc., Covenant Concerning 344
Reddendum or Reservation in Mort-
gages 343
Release of Dower and Homestead Ex-
emption 349
Releases or Discharges of Mortgages. . .
351, 354
in Part 354
Reservation. See REDDKNDUM, ETC., IN
MORTGAGES, above 343
Right to Convey Covenant for 344
Sale on Default, Covenant for 344, 345
Sale, Security, etc 355, 356
Satisfaction of Mortgages 351, 355
-of a Part 354
Security for an Indorser 355
Sale, etc 355, 356
for an Unliquidated or Unascertained
Amount 356
Short Form Mortgages 345
Unliquidated or Unascertained
Amounts, Mortgage for 356
Term of Years, Mortgage for 356
Years, Term of, Mortgage for 356
Mortgages and Bonds, Assign-
ment of 105,106
Municipal Bonds 145,146
Mutual Covenants to Convey in
Deeds 3O2
Name of Testator to be Taken with
Estate, in Will S83
Page
Names of Parties in Deeds, etc. 298, 299
National Bank Notes 144
Natural Boundaries, Highways,
How Described in Deeds, etc 3OO
Nebraska.
Acknowledgments 29, SO
Deeds 283
Mortgages 339
Wills 376
Negotiable Bills. See BILLS OP EXCHANGE 147
Bonds. See BONDS NEGOTIABLE . . 144-146
Notes. See PROMISSORY NOTES 149, 15O
Nevada.
Acknowledgments SO
Deeds 283
Mortgages 339
Wills 376
New Hampshire.
Acknowledgments SO, 31
Deeds 283
Mortgages 339
Wills 376,377
New Jersey.
Acknowledgments 31
Deeds 283
Mortgages 339
Wills 377
New Mexico.
Acknowledgments 31, 32
Deeds 283
Wills 377
New Tork.
Acknowledgments 32-37
Deeds 283-289
Mortgages 339,340
Wills ... 377
North Carolina.
Acknowledgments .......... 37
Deeds ~ . . . 289
Mortgages 34O
Wills ..... 377
Note Secured by Mortgage 354
Notes, etc.
Assignment of.. 1O6
of Hand 149, 15O
Negotiable. See PROMISSORY NOTES 149, 15O
Notice.
Affidavit of. 52
to Arbitrators 69
of Carriers of Goods. See BILLS OF LAD-
ING 114-121,140-142
of Dissolution of Limited Partnership. . 562
of Protest 164
of Sale of Mortgaged Goods, etc 361
Witness in Arbitration 39
Nuncupative, Verbal, or Unwrit-
ten Wills 396
Affidavit of Witnesses to Memorandum
of 390
Oaths for Trade-Marks, Patents,
and Designs ....................... 6OO, 6O1
Obligations or Bonds .............. 181-192
Obligees and Obligors, Joint and
Several, One or More, etc., to
Bonds or Obligations ........... 187, 188
Obstructions to Light, Contracts
for ......................................... 251
Official Character, Authentication,
or Exemplification of. ............... 109
- Seals and Signatures ............... 15
Ohio.
Acknowledgments .................. ~, 3!
Deeds ............................... 29O-292
Oil, Mineral, or Salt Land Lease. . . . 331
One Person Covenants to Another,
in Deeds, etc .......... -.. ............ -
IKDEX TO FORMS.
75
Page
Orders.
Assignment of 106
To Buyer Sell Stock, Broker's 84
Charter Party for.,. 240,241
Oregon.
Acknowledgments 38
Deeds 292
Mortgages , 34O
Wills 878
Papers, etc., Receipt for 625
Parties, Names in Deeds, etc.. . 298, 299
Partition Deeds 3O8
by Commissioner 3O4
Master 288, 289
Recital of Title by, in Deeds, etc. 299
Partners, Affidavit 52
Partnership Contracts 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 253
Firm Name, etc 253
General Forms 251, 252
New Partners 253
Profits and Losses 253
Release of Debts 253
Retiring Partners 253, 255
Settlements 253
Silent Partners 253, 254
Interests, Assignment of 1O6
Property, Assignment of. . . . 106, 1O7
-limited.
Affidavit of Stock, etc 562
Certificate of Partnership, etc 562
Notice of Dissolution 562
Party Walls.
Contracts- Concerning 255, 256
Easements for, How Described in
Deeds, etc 3OO
Patent, Recital of Title by, in
Deeds, etc 299
Rights 597-4.05
Assignment of 6O3
Forms Relating to. See Index to Patent
Forms 597-598
Patented Articles, Contracts for
Manufacture of. 251
Payment.
Bonds for 181-187
of Money on Mortgage, Covenant for. . . 344
in Satisfaction of Chattel Mortgages . . . 362
of Taxes 344
Pecuniary Legacies 392
Pennsylvania.
Acknowledgments 38-41
Deeds 293-297
Mortgages 34O, 341
Wills 378
Performance, Contract for 256
Personal Property. See BEQUESTS AND
LEGACIES OF, ETC., above 391-393
Assignments of 1O7
Representatives, Bonds 186, 187
Petition, Affidavit 53
Petitions for Trade-Marks, Pat-
ents, and Designs 598, 599
Petroleum.
Bill of Lading 242
Charter-Party for 241, 242
.~. ... 308
Pag
PewLeaae 831, 333
Plans, Building Contract with 228
Pleadings, Copyright 411-413
Policy of Insurance, Assignment of 1O3
Postmaster's Receipts, Copyright
Matter 414,415
Power to Convey, Covenant of in
Deeds 3O2
Powers, etc., in Wills. See CONDITIONS,
ETC., ETC., above 38O-384
Powers of Attorney.
Assignment of 1O5
Assignment Attached 97
Attestation of Deed, etc., Executed by
Virtue of 3O3
of Attorney to 73-8O
Accept, Pay, Sell, etc 74
Acknowledge Conveyances, etc 73
Satisfaction, etc 73
Appoint Appraisers 74
Arbitrate Matters 74
Carry on Business, etc 74
Mercantile Concerns 74, 75
Collect Debts for Corporations 75, 76
Dividends 76
Rents 76,
Confirm Acts of Attorney '76'.
Deliver Possession of Goods 7ft
Demand Rents 7
Draw, Indorse, and Negotiate Bills of
Exchange, etc 76
Fill Out Blanks in Writings 7V
Fit Out, Furnish, and Let Vessel 7fl
Insure Property, etc 7V
Lease Lands 7V
and Sell Lands 77
Make Partition 7V
Manage Real Property 7V
Mortgage Real Property 77
Prosecute and Defend Suits 77
Ratification 78
Receive Dividend 78
Legacy 78
Money from Underwriters 78
Possession of Real Estate 78
Principal and Interest 78
Renew Lease, and Sell, etc 77
Sell Real Estate 79
Stock 79
Vessel 79
Sign Writings 79
Subscribe 79
Substitute 79
Survey and Lease 77
Vote 77,78
of Sale in Chattel Mortgages 363
Premises.
in Deeds, etc 299, 3OO
Leases 314
Mortgages 342
Private Corporation Bonds 145
Prizes, Assignment of 1O7
Promissory Note Secured by Mort-
gage 354
Promissory Notes 149, ISO
Chattels, for 149
Demand, on 149
General Form 149
Guaranty of 15O
Joint ISO
and Several 15O
Judgment Note 15O
Payable at a Particular Place 15O
Several, and Joint 15O
Proof of Unacknowledged Deeds,
Mortgages, etc., etc. See ACKNOWL-
EDGMENT FORMS, above.
Property Attached.
Receipt for 139
of Partnership, Assignment of 1O6, 1O7
Receipt for redelivery of, etc 625
Protest 164
Notice ...., j.64
706
INDEX TO FORMA.
Pace
Provisions, etc.. in Wills. See CONDI-
TIONS, ETC., ETC., above 38O-384
Provisos in Leases. See CONDITIONS,
ETC., IN LEASES, above 815
and Conditions in Mortgages.. .. 843
Publication , Affidavit of. 53
Publications on Joint Account,
Contracts for 244
Purchase, Contracts for 256
Cord Wood 256
Several Jointly 256
Money, Receipt for 625
Quiet Enjoyment, Covenant for, in
Deeds 3O2
4fcu it-Claim Deeds.
Forms used in Indiana 277
Kansas 278
Kentucky 281
Missouri 282
New York 285,286
Ohio 29O
Pennsylvania 294
Virginia 298
Racing:, Horse, Contracts Concern-
ing: 246,247
Railroad, Contracts for Building
and Construction 232-234
Subdivision, Contracts for, etc.
234, 235
Ticket Office, Contracts for, etc.
235-237
Ratifications of Former Codicils,
and Will 395, 396
Real Estate, Contracts for Sales of
258, 26O
and Personal Property, Wills,
etc., Concerning: 389,390
Property, in Devises of, in Wills,
etc 393,395
Reassignment, Contracts for... 256, 257
Rebuilding:, Contracts for 228, 229
Receipt.
for Attached Property 139
of Broker for Stock 84
in Mortgages, Covenant Concerning. . . . 344
Receipts 625
Accounts Generally 625
Chattels, Papers, etc 625
Debt, etc 625
Full of All Demands 625
Interest 625
Legacy 625
Librarian of Congress 415
Money 625
postmaster, for Copyright Matter . 414, 415
Purchase-Money ... 625
Redelivery of Property, etc 625
Rent 625
Recipe, Assignment of 1O7
Recitals in Deeds, etc 299
Administrator's Title 299
Attorney's in Fact Title 299
Executor's Title 299
Deed, Title by 299
Descent, Patent, etc. , Title by 299
Partition, Title by 99
Record, Authentication or Exem-
plification - 1O9
Recourse, Assignment Witbont .... 108
Reddendnm or Reservations in
Deeds, etc SCO, 3O1
Reserving Annuity 3OO, 3O1
for Streets, etc SOI
in Leases 314, 315
Balcony, Observatory, etc 314
Drive, Roadway, etc 314
Private Passage 314,315
Timber, etc 315
Water-Course, etc .-. 815
43
Page
Reddendnm or Reservation in
Mortgages 343
Redelivery Bonds 186
Referee's Deed 308, 3O9
Registration of Bonds. 145
Releases 626
Apprenticeship 95
Claims, Demands, etc., etc 626
Deed of ;$O9
Dower and Homestead Exemption in
Mortgages 349
Mortgages in Full 351-354
in Part 354
Remainder, Contract for Sale of. . . . 259
Renewal Affidavits.
in Chattel Mortgages 36O
of Insurance, Contract for 247
of Lease 332
Rent.
Ground-Rent Deed 295
Receipt for 625
Representatives, Personal, Bonds
of 187
Requisites in
Acknowledgments 14-45
Assignments 96
Bonds 180,181
Contracts 223, 224
Deeds 273-298
Leases 313,314
Mortgages 335-343
Powers of Attorney 72
Wills 371-38O
Reservations in Deeds, etc. See RED-
DENDUM, ETC., above 3OO, 3O1
in Leases. See REDDENDUM IN LEASES,
above 314,315
Reservation or Reddendnm in
Mortgages 343
Residence, Rebuilding 226-23O
Respondentia Bonds 187, 188
Reversion, Contract for Sale of 259
Deeds of 3O9, 31O
Revocation of Arbitrators' Powers 69
Notice of 69
Powers of Attorney , 8O
Substitution of Attorney 8O
Revocations of Former Codicils
and Will 395,398
Rhode Island.
Acknowledgments 45
Deeds 297
Mortgages 341
Wills 378
Right to Convey, Covenant of, in
Mortgages 344
Rights, Patent, Assignment of 593
Right of Way Deed *86
Sale, Security, etc. 355, 356
Bills 633
Assignment of 98
General Form 633
of a Horse, With Warranty 633
on Default, Covenant for 344, 345
Sales, Contracts for 257-261.
Animals 257
Appraised Value 257
Bond and Mortgage 257
Farm and Mill Property . . 258, 259
Fruit Trees 261
General Forms 257
Goods in Grocery 25";
in Store 257
Horse , 258
Real Estate 258-26O
Remainder or Reversion 259
Shares of Stock 260
Stone 261
Timber, Growing 260, 261
INDEX TO FORMS.
707
Page
Bales, Contract* for. (Continued.)
Trees, Fruit 261
Vessel Enrolled or Registered 261
Wheat 261
Wood or Stone 261
Satisfaction of M ortgages 351, 355
in Part 354
Scale, Demurrage and Lay-Day 122
Schedules to Assignments 97
in Chattel Mortgages and Bills
of Sale 361
Seal of Officers 15
Seamen, Contract for Shipping 261, 262
Seamen's Wages, Assignment of. ... 1 OS
Security Clause to Assignments 1O8
Contract for Change of 261
by Mortgage for an Indorser 355
on a Note by Chattel Mortgage . . . 362, 363
Sale, etc 355, 356
for Unliquidated or Unascertained
Amount by Mortgage 356
Seizin, Covenant of, in Deeds 302
Self, and for Another, Attestation
of Deed Executed by 3O3
Servants, Assignment of. 1O8
Service of Award 71
Services, Performance of 256
Several, Covenants of, in Deeds 3O2
and Joint Notes 15O
Sewers, Contract for Building and
Construction of 237,238
Shares of Stock.
Assignment of 1OS
Contract for Sale of 26O
Sheriff's Acknowledgment 16
Deeds.
Forms Used in Kansas 279, 28O
New York 289
Ohio 291,292
Pennsylvania 295-297
Signature and Seal to Deeds 3O2
Ship-Owner's Contract with Sur-
geon 246
Shippers 114-121
Shipping Seamen, Contract for 261, 262
Ships, Contracts for Building and
Construction of. 231
Shoes, Contract for Manufacturing,
etc 251
Short Forms.
Assignments 97
Bonds 1S1
Building Contracts 228-23O
Deeds SOS
Leases 317
Mortgages 345
Powers of Attorney 73
Substitutions of Attorney 8O
Wills 385
Signature to Affidavits 53
of Officers 15
Signatures and Seals to Deeds, etc. 302
Agents 3O2
Attorney-in-Fact SO2
Administrator or Administratrix 3O2
Corporations 8O6
Executor or Executrix 3O2
Guardian 3O2
Sheriff. SO2
Trustee , 3O2
Simple Forms of
Assignment , 97
Bonds 181
Building Contracts 228, 23O
Deeds SOS
Leases 317
Mortgages 345
Powers of Attorney 73
Wills 385
Single Entry Bookkeeping 7
South Carolina.
Acknowledgments 41
Deeds 297
Mortgages 341
Wills 378
Special Warranty Deeds.
General Forms 312
Forms Used in Indiana 277 1
Kansas 278
Kentucky 281
New Jersey 283
Ohio 29O
Pennsylvania 293, 294
Specifications for Trade-Marks,
Patents, and Designs 599, 6OO
State Bonds 146
Statements of Account 6
by Brokers 84
Statement, Annual, of Mortgagee's
Interest in Goods Mortgaged 36O
of Venue.
in Acknowledgments 14
in Affidavits 51
Steamship, Contract for Building
and Construction of 232
Stock, Chattel Mortgage of 362
Shares, Assignment of. 1O8
Stone, Contract for Sale of 261
Store, Goods in, Contract for Sale. . 257
Streets, Contract for Building and
Construction of 23O, 231
Subscription, Con tracts by 262
Substitution of Attorney 8O
by Power of. 8O
Suits, Contracts to Bear Expenses
of. Equally 247,248
Release of All, etc 626
Surety to Lease 332
by Chattel Mortgage 363
Sureties, Affidavits 53
Surgeons, Contract with Ship
Owner 246
Surrender of Iiease 332
of a Term of Years of Lease 332
Taking Down and Rebuilding, Con-
tracts for 229,230
Tax Deeds.
Forms Used in Kansas 28O
Ohio 292
Telegrams 14O-142
Telegraphic Messages 14O-142
By Cable 140,141
Half-Rate 141,142
Tenancy in Common, Deed for 31O
Tenant's Certificate of Leasing 323, 324
Tennessee.
Acknowledgments 41, 42
Deeds 297
Mortgages 341
Wills 378
Term of Years, Mortgage of 359
Testaments. See WILLS AND TESTAMENTS ;
NUNCUPATIVE WILLS ; CODICILS, above. . 371-396
Testatnm Clauses. (Introductions.)
in Contracts 224
Deeds, etc 298, 299
Leases 314
Mortgages 342
Texas.
Acknowledgments 42
Deeds 297
Mortgages 341
Wills 378,379
Ticket Office, Contracts for Build-
ing and Construction of 235-237
Timber, Charter Parties for 242
TO FORMS.
Page
Timber Grown. Contract for Sale
of 260,261
Title, Abstracts of 264,265
to an Action at Law 51
to an Affidavit. 51
Towing Boats, Contracts for ... 262, 263
Township Bonds 146
Trade and Barter, Contracts for. . . , 225
Mark Forms 598, 6OO, 6O5
Translations, Acknowledgment 16
Transcript of Judgment, Authen-
tication or Exemplification of. ... 1O9
Treasury Note, 17. S 144
Trees, Fruit, Contracts for Sale of. . 261
Trust Deeds.
General Forms 31O, 311
Forms Used in Kansas 279
Kentucky 281
Ohio 291
Virginia 298
Trust, Will in, etc. 39O
by Widow 390,391
Trustee's Deeds.
Forms Used in Kentucky 281
Pennsylvania 294,295
Signature and Seals to Deeds 3O2
Turnpike Roads, Contracts for
Building and Construction of. 238
Umpires, Appointment 69
Submission to Arbitrator with
Provisions for 67
Unliquidated or Unascertained
Amounts, Bonds for 188
Mortgages to Secnre 345
Unwritten Wills. See NUNCUPATIVE
WILLS, etc., above.
Unfurnished House, Lease 328
U. S. Treasury Notes 144
Utah.
Acknowledgments 42, 43
Deeds 297
Mortgages 341
Wills 379
Verbal Wills. See NUNCUPATIVE WILLS,
etc., above 396
Verification of Awards 71, 72
Verified Account 51,52
Vermont.
Acknowledgments 43
Deeds 297,298
Mortgages 341,342
Wills 379
Vessels.
Contracts for Building and Construc-
tion of. 231,232,246
for Sale of 261
Virginia.
Acknowledgments 43
Deeds 298
Mortgages 342
Wills 379
Voidable Deed, Deed Confirming,
*tc 3O5, 3O6
Wages In Oeneral, Assignment of. . 1O8
Seamen's, Assignment of 1O8
Warrant and Bond to Confess Judg-
ment 182
Warrants of Attorney 83
-for Interest on Bonds 145, 146
Warranty, Bond to Keep 188
Covenant In Chattel Mortgages. 363
- Covenantor, in Deeds...,,...,,.,,, 303
New Jersey.
New York...
Pap:
Warranty Deeds 811, 312
General Forms.
by Attorney 312
With Full Covenants ail, 312
Forms Used in Alabama 374
California 275
Illinois 276
Indiana 276, 277
Kansas 278
Kentucky 281
Massachusetts 282
Missouri 283
283
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
Washington.
Acknowledgments 43, 44
Deeds 298
Wills 379
Watercourse Deed 286, 287
Rate or Tax Lease 319, 32O
Weights and Measures 642-644
West Virginia.
Acknowledgments 44
Deeds 298
Mortgages 342
Wills 379
Wharf and Machinery Lease 333
Wheat, Contracts for Sale of. 261
Widow's Will, etc., Containing
Trusts 39O, 391
Wills and Testaments, etc.
Alabama 371
Arkansas 371
California 371
Canada 371,372
Colorado 372
Connecticut 372
Dakota 372
Delaware 372
District of Columbia 372
Florida 372, 373
Georgia 373
Idaho 373
Illinois 373
Indiana 873
Iowa 373
Kansas 373, 374
Kentucky 374
Louisiana 374, 375
Maine 375
Maryland 375
Massachusetts 375
Michigan 375
Minnesota 375, 376
Mississippi 376
Missouri 376
Montana 376
Nebraska 376
Nevada 376
New Hampshire 376, 377
New Jersey 377
New Mexico 377
New York 377
North Carolina 377
Ohio 377,378
Oregon 378
Pennsylvania 878
Rhode Island 378
South Carolina 378
Tennessee 378
Texas 378, 379
Utah 379
Vermont 379
Virginia , S79
INDEX TO FORMS.
709
Page
Wills and Testaments, etc. (Con-
tinned.)
Washington Territory 379
West Virginia 379
Wisconsin 379,380
, General Form* 38O-396
Attestation of Written Wills by Wit-
nesses 384,385
English Forms 384
Massachusetts Form 384
New York Form 385
Pennsylvania Form 385
Authentication or Exemplification of. . . 1O9
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
Conditional Bequest ... 392
Corporation, Bequest to 392
Death of Legatee 392
Debts, etc 392
Dress and Ornaments, etc 392
Furniture, etc 393
Books, Provisions, etc 393
Codicils to Wills, etc 395, 396
Appointing Executors, Trustees, etc... . 395
Indorsement of, on Will 395
Ratification of Former Codicils and Will
395, 396
Revoking Former Codicils and Will..
395, 396
Good-will of Business 392
Infant's Legacy 392
Jewelry, Plate, and Household Effects,
etc 392
Payment of Legacies, etc 392
Pecuniary Legacies, etc 393
Residue of Estate 393
Share Under Another Will 393
Stock, for Support of Family 393
Trust for an Unincorporated Society. .. . 393
Commencing Clauses to Wills, etc. .... 38O
Concluding Clauses to Wills, etc 384
Conditions, Declarations, Directions,
Powers, Provisions, etc. , etc. , in Wills,
etc 38O-384
Advancements to be Deducted 38O
Not to be a Satisfaction of Debts. . . 38O
Annuity, Powei to Grant, etc 38O, 381
Prevent! ng Parti ng Wi th 38i
Appointment of Guardian and Substi-
tutes 381
Executors and Substitutes 381
Arbitration 381
Arrangements or Compromises 381
Assignment to New Trustee, etc 381
Children Born After Testator's Death . . 381
Custody and Tuition of. 381, 382
Repayment of Loans by . ; 383
Debts Due From Relatives, Release of.. 382
Disputes, Arbitration of. 382
Dwelling-House, Wife to Reside in 382
Investment of Personal Estate, etc 382
Marriage of Daughter, etc 382, 383
of Nieces, etc 383
Name of Testator to be Taken, ttc 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
'Declarations. See CONDITIONS, etc., cited
abov . .. 38O-384
Pace
and Testaments, etc. (Con-
tinued.)
Devises 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
Residue of Estate 394
School or College 394, 395
in Trust, With Power to Sell, etc.. 893, 394
to Trustees, During z. Life or Lives 394
General Forms of Wills, etc 385, 389
Introductions to Wills, etc 389
Legacies. See BEQUESTS AND LEGACIES,
ETC., above 384, 385
Married Woman's Will 386
Personal Property. See BEQUESTS AND
LEGACIES OF, ETC., above 391-393
Powers, etc. See CONDITIONS, ETC., ETC.,
above 38O-384
Provisions, etc. See CONDITIONS, ETC.,
ETC., above 38O-384
Real and Personal Property, Wills, etc.,
Concerning 389
in Trust 389, 39O
Property. See DEVISES OF, above
393, 395
Short Form Wills 385
Trust, Will in, etc 39O
by Widow 39O, 391
Widow's Will, Containing Trusts. 39O, 391
Witnesses. See ATTESTATION TO WRIT-
TEN WILLS, ETC., above 384,385
Wisconsin.
Acknowledgments 44, 45
Deeds 298
Mortgages 342
Wills 379, 38O
Without Recourse, Assignment 1O8
Indorsements 155
Witness in Arbitration, Notice to. . 69
Affidavit to memorandum of
Nuncupative Will 396
Clauses in Contracts 224
< to Deeds, etc 3O2, 3O3
Blind Person 3O&
Deaf and Dumb Person 3O3
Erasures and Interlineations 3O2
Illiterate Persons 3O3
Interlineations and Erasures 3O2
Power of Attorney 303
Self and for Another 3O3
Witnesses. See ATTESTATION TO WRITTEN
WILLS, ETC., above 384, 385
Woman, Married Woman's Will,
etc 386
Wood, Contracts for Sale of 261
Work, Contract for 263
Workmen, Contract for Employ-
ment of 245
Written Wills. See WILLS AND TESTA.
MBNTS, above.
Wyoming.
Acknowledgments 45
Deeds 298
Tears, Lease for 8S3, 334
Term of, Mortgage of
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Series 9482