>r -/ * TRADER'S AND MECHANIC'S LAWS OF TRADE. THE ! CREDITOR'S & DEBTOR'S ASSISTANT, OR THE JHODE OF COLLECTING DEBTS: IN FIVE PARTS. PART I Treats of the EVIDENCES OF DEBT, in relation to Books, Settlements, Receipts, Promissory Notes, Bills I Exchange, Drafts, Checks, Contracts and Agreements, Pur- i us, Sales and Delivery of Goods, Implied Contracts, Avoid-; ! ance of Contracts, Interest, when it may be claimed, &c. PART II Directs the course necessary to be taken for EN- j FORCING THE" PAYMENT OF DEBTS, by Writs, Attachment, Trustee ; Process, Sec. ; and the nature and effect of the Insolvent's and Poor Debtor's Lav. PART III Relates to PROCEEDINGS IN SPECIAL CASES, such as \ Principal, Factor, and Agent, Partnerships, Mortgages, &c. PART IV Contains TAXATION OF COSTS in Civil Cases in the Justices, Common Pleas, and Supreme Courts, Qualifications j.nd Liabilities of Attorneys, Sheriffs, &c. PART V. In this Part are given the LEGAL FEES of Attorneys i La\v Officers of the Commonwealth, and the Rates of iipensation for the services of Attorneys. . ..... By the Author of the " Business Man's Assistant,"" Landlord's and Tenant's Assistant,'' ' Laws of the Sca, v and " Shipper's and Carrier's Assistant." PRINTED, AND FOR SALE, WHOLESALE AND RETAIL, jBy I, R, BUTTS, No, 2 SCHOOL STREET, BOSTON, AM) SOLD'BV AGENTS GENERALLY. 1849. <&< PRINTED, AND SOLD WHOLESALE AND RETAIL, BY I. R. BUTTS, No. 2 SCHOOL STEEET, BOSTON. H, LONG & BROTHER, Agents for the U, States, No. 46 Ann St., New York. T. B. PETERSON, 98 Chesnut Street, Philadelphia. Sor.n, WHOLESALE AND RETAIL, By Wsi. TAYLOR, Baltimore: M. BOUI.I.EMET, ( MobiijfJ. C. MORGAN, AND WELD & Co., New Orleans: STRATTON &, ; BARWARD, Cincinnati : AMOS HEAD and GEORGE GATES, Charleston, S. C. C. HAG AN & Co., Louisville, Ky. : D. M. DEWEY, Rochester, N. Y. .- W. L. PALMER, Syracuse, N. Y. : A. H. & C. BURLEY, Chicago, III. : S. A. How- I.AND, Worcester: T. WILEY, JR., REDDING &Co., WM. J. REYNOLDS, and HOTCHKISS & Co., Boston : and all Booksellers in the U. S. THE SHIPPER'S AND CARRIER'S ASSISTANT, I AND MARINE AND INLAND INSURER'S GUIDE. THIS book contains not only all which relates to the Liabilities of Shippers } and Carriers, but a full statement of the Principles of MARINE INSUR- j ANCE, and the relation in which the Shipmaster stands both to the Owners ) ,. and Insurers : Also, the law relating to Consignor and Consignee ; and to ( ) Collisions at sea, and in harbors and rivers. It presents a mass of information that entitles it to a place in every Marine , ) insurance Office, Counting House, and Shipper's and Carrier's Office, where \ it would be found useful as a Book of Reference on innumerable occasions. ' It should also be in the hands of Steamboat Captains, and every person : engaged in Shipping or Transporting Goods or Passengers, from place to place, ( on Ocean, Lake, River, or in City, Town or Country. The following is a portion of its Contents : Who are Common Carriers .- Duties of Common Carriers ; Liabilities of Carriers for the acts of their Agents ; do. as Partners : Carriers by Land ; by Water ; Carriers of Passen- Esrs; by Railroad; by Steamboat; Rights of Carriers; Rights of Passengers ; , labilities for Baggage of Passengers ; Duties of Carriers by Water ; Com- < mencementof Voyage; Course of Voyage; Liabilities by Water; Perils of the Sea; by Fire, &c. ; Duty to .sail on appointed Day; Limitation; Delivery of Goods ; Notice ; Effect of Notice ; Release ; Lien ; Charges ; Liabilities of Consignor and Consignee; Stoppage in Transitu, &c. &c. Marine In-; surance : What can or cannot be insured; Seamen's Wages; Interest ; \ ) Freight, &c. ; Representation; Concealment; Disclosures; Warranties; De- ', Aviations; Succoring; Repairs; Collisions; General Average; Contribution ; ' Total Loss; Abandonment; Notice of do., &c. &c. Inland Insurance.:', Steamboats, Deviation of; Flat-boats. Also, Forms of Notice of Abandon- S ment; Assignment of Policy ; do. of Seaman's Wages; Power of Attorney from a Sailor to his Wife to receive his Wages; Surveys; Adjustment of General Average; Protest; and the principles of law in relation to Life, 1 , Health and Fire Insurance. The.undersigned having examined the " SHIPPER'S AND CARRIER'S ASSISTANT, AND MARINK ; AND ISLAND INSURER'S GUIDE," recommtnd it to Skippers, and those engaged in tram- - porting goods, and to insurers, as a useful assistant in their business relations: Joseph H Adams, Pres. New Wright, Priest & Co.. Wesi; llarnden& Co., Expre* E. Mutual Marine Ins- Co.,' India Goods, Wiggin & Morse, Merchants, > Judson &. Co., Merchants, Lombard & Hall, Merchants. Capt. John Williams, Presi- ) M, G Andrews, Merchant, C. C. Gilbert, do. Geo. L. Ward, do. Win. C. Barsto\v, Treasurer East Boston Company, Howes & Crowell, do. D. C. Clark & Co., A. S. & W. E. Lewis. Mer- John S. Tyler, Ins. Broker. snrance Agent. S [ See 3d and 4A pages of cover. dent of Coaster's Ins. Co., Baker & Morrell, Mehams. -' Geo. Winslow, Merchant. ; Caleb S. Carter, Marine In*) UCSB LIBRSW X-5SOS-O TRADER'S It," MECHANIC'S LAWS OP TRADE. THE CREDITOR'S & DEBTOR'S ASSISTANT, OR THE MODE OF COLLECTING DEBTS : IN FIVE PARTS. PART I. EVIDENCES OF DEBT : BOOK ACCOUNTS, BILLS OF EXCHANGE, PROMISSORY NOTES, CONTRACTS AND AGREE- MENTS, INTEREST, LIMITATIONS OF ACTIONS, &C. &C. PART II. MODE OF ENFORCING THE PAYMENT OF DEBTS : CIVIL PROCESS, WRITS, INSOLVENT LAW, &C. &C. &C. PART III. SPECIAL LAWS : PRINCIPAL, FACTOR AND AGENT, LIMITED PARTNERSHIP, MORTGAGES, &C. &C. &C. PART IV. TAXATION OF COSTS IN CIVIL ACTIONS IN THE JUSTICES, COMMON PLEAS, AND SUPREME COURTS. PART V. LEGAL FEES OF ATTORNEYS AND LAW OFFICERS OF THE COMMONWEALTH, &C. &C. BY I . R. BUTTS, Author of the "Business Man's Assistant" " Landlord's and Tenant's Assistant" " Shipper's and Carrier's Assistant" and " The Laws of the Sea." BOSTON : PRINTED AND PUBLISHED BY I. E. BUTTS, No. 2 School Street, FOR SALE BY HIM, WHOLESALE AND RETAIL, AND BY AGENTS GENERALLY. 1849. Entered according to Act of Congress, in the year 1849, BY I. R. BUTTS, in the Clerk's Office of the District Court of the District of Massachusetts. CONTENTS. PART I. EVIDENCES OF DEBT. Book Accounts, Settlements, and Receipts, 5 Bills of Exchange, Promissory Notes, Drafts and Checks, . . 7 Effect of taking a negotiable note or bill after it ia due indorsees of notes pay able on demand presentment for acceptance accept- ance what notice of the non-acceptance of a bill must be given liability of acceptor acceptance for honor indorsement pre- sentment for payment what will excuse the non-presentment days of grace notice to indorsers noticeprotest, when necessary. Damages on Protested Bills, 24 On bills payable without the United States beyond Cape of Good Hope within U. S. within this State. Usury, Laws Of, What Constitutes, 25 Contracts and Agreements, 25 Who is capable of making how can action be brought must be in writing void without consideration, unless under seal promise to pay the debt of another, when binding. Unwritten Contracts, 30 Implied Contracts, (or where there is no special agreement), 31 Sale and Conveyance of Real Estate, 33 Law affords no redress for oversights misrepresentation vitiates sale. Purchase, Sale, and Delivery of Goods, 33 Contract not binding for goods under the value of $50, unless deliv- ered within one year when bargain is struck when sale is com- plete the earnest the delivery time of delivery neglect of de- livery to an agent where an article is to be manufactured what ia sufficient as a memorandum exchanges. Warranty of Goods, Express and General, 35 Where goods are sold by sample latent defect in sample. Avoidance of Contract, 36 If vendee does not come and pay for goods when contract is in vio- lation of law when obtained by deception when persons are employed to bid at auctions in restraint of trade where assign- ment is fraudulent where seller misleads the purchaser. Payment, General Usage where no Specific Stipulation is made, 38 Interest, When it may be Claimed, how computed, 39 Limitations of Actions, 41 What debts can be collected within six years what within two what within twenty exceptions effect of part payment. PART II. MODE OF ENFORCING PAYMENT OF DEBTS. Mode of Procedure in Civil Actions, 43 General course of procedure from the sending of the letter of attor- ney, to rendition of judgment. Writs, Attachments, Arrest, Judgment, and Execution, ... 45 Justice's jurisdiction appeals writs how framed articles ex- empt from attachment bail bond how long after attachment goods may be held execution renewal of execution time wiih- m which judgment may be obtained when goods can be sold when they may be redeemed when real estate may be sold when it may be redeemed. Trustee Process, 49 Trustee examined on oath when liable for non-delivery of goods liability of trustee to pay costs. Replevin, How Taken when Goods are Unlawfully Detained, 58 Tender, How, When, and in What Manner made, 54 CONTENTS. Set-off, When oire Demand may be Set-off against Another, 55 Unlawful Attachment and Arrest 57 Insolvent Laws, 58 Who may petition in what cases creditor may force debtor into in- solvency duty of assignee what debts may be proved discharge of debtor, what may prevent debtor's claim for necessaries. Imprisonment for Debt, Poor Debtor's Oath, 64 When debtor may be arrested bond prison limits liberty of the yard debtor's oath mode of examination. PART III. GENERAL AND SPECIAL LAWS. Principal, Factor, and Agent, 69 What constitutes a factor when holding a del-credere commis- sion how responsible when liable for loss when to remit to principal law of factors and agents enacted by the Legislature of Massachusetts, and approved by the Governor, May 2, 1849. General Partnership, 72 What constitutes a partnership liability of partners dissolution of do. limited partnership how associated certificate of partner- ship capital stock insolvency dissolution. Mortgaged Real Estate, 75 Conveyance of estate foreclosure of mortgage power to sell Mortgaged Personal Estate, 76 Where must be recorded foreclosing of mortgage attaching do. General Lien, 77 A right which one person has to detain the property of another on account of labor lien of mechanics, shipwrights, and others lien law of Massachusetts for building or repairing petition for sale of on ships for materials, provisions and stores how long time to continue. Arbitration by Reference, 81 Form of submission meeting of arbitrators reporting award Acknowledgment of Debt, 82 Form of acknowledgment by debtor by power of attorney. Rights and Liabilities of Hotel and Boarding-House Keepers, 84 Legal Rights of Married Women, 87 Wife may retain her property may receive property by will or deed may sue and be sued to whom her property goes at death right of married women to personal estate of husband not disposed of by will, right to admmister,right to dower,right to wages. PART IV. TAXATION OF COSTS IN CIVIL ACTIONS. Party recovering Costs, 91 Costs Taxed in Justices' Court, 93 Plaintiff : s costs where defendant is defaulted where the case is tried defendant's costs trustee's costs. Costs Taxed in Court of Common Pleas, 94 Plaintiff's costs non-suit when defendant prevails trial by jury. Costs Taxed in Supreme Court, 98 Qualifications and Liabilities of Attorneys and Sheriffs, ... 99 PART V. LEGAL FEES OF ATTORNEYS AND LAW OFFICERS. Fees of Attorney, Of Justice of the Peace, Of Commis- sioners in Chancery, Of Clerks of the Supreme and Com- mon Pleas Courts, Of Sheriffs, Of Constables, Of Jurors, Witnesses, &c., Of Town Clerks, Of Register of Deeds, Notaries Public, Of Requirements of Public Oliicers, and Penalty for Extortion, 101 Bates of Compensation for Services of Attorneys, 107 PART. I. EVIDENCES OF DEBT. BOOK ACCOUNTS, HOW PROVED. ORIGINAL entries in shop books, or the original me- moranda of charges by a party, though not kept regu- larly in the manner of a day-book, are competent evidence, with the suppletory oath of the party, if living, to prove the items charged. (2 Mass. 217 ; 13, 455.) The creditor is sworn to make true an- swers to questions relating to his books, and is then required to state if they are his original entries, and were made at or about the time they purport, and if they are true. Suspicious marks on the face of a book will prevent its being received. But every memorandum of a shopkeeper or laborer will not be admitted as his book. Before the books of the party can be admitted in evidence, they are to be submitted to the inspection of the court ; and if they do not appear to contain the first entries or charges by the party, made at or near the time of the transactions to be proved, and to have been honestly and fairly kept, they are excluded. Where entries were first made an a slate, or cart, and afterwards transferred upon a book, kept in the ledger form, such book was admitted as evidence to prove the items charged." (13 Mass. 427.) So, where it appeared to be the custom of a butcher, in carrying around meat to his customers, to make chalk scores on the cart, stating to whom the meat was sold, and the quantity and price, from which scores, on the return of the cart on the same day, and before it went out again, it was the custom for his partner to make entries in the L. T. 1* BOOK ACCOUNTS, HOW PROVED. books of original entries, they were admitted as compe- tent testimony to prove the charges. (12 Pick. 139.) If the party is dead, his books, though rendered of much less weight as evidence, may still be offered by the executor or administrator, he making oath that they came to his hands as the genuine and only books of account of the deceased ; that to the best of his know- ledge and belief the entries are original and contem- poraneous with the fact, and the debt unpaid ; with proof of the party's handwriting. If the clerk who made the entries is dead or insane, the book is admissible upon proving his handwriting. (3 Pick. 96.) Where a tradesman's day-book contains marks which show that the items have been transferred to a ledger, the ledger must be produced, that the other party may have advantage of any items entered therein to his credit. (2 Mass. 5G9.) A tradesman's books will, in general, be very effect- ual evidence against himself. Set-off of mutual demand. (See title " Set-off."} Payments of sums of money over forty shillings can- not be proved by the bonks. This is an important fact to be known, as it not unfrequently happens, that a person pays money to his workmen, taking no receipt therefor, and having no other evidence of the fact of payment, but his charge on his books. The books will not be evidence of any cash payment exceeding forty shillings, ($6 66f.) Charges upon a physician's bill for " visits and medi- cines" are sufficiently specific, although the quantity and quality of the medicines are not designated it not appearing that they varied from the usual mode adopted by physicians in making charges. Accounts. Merchants usually prefix the initials E. E. (for errors excepted) to their signature to accounts ; but the omission of those letters forms no bar to the subsequent correction of errors. The settlement and discharge of an account for money lent, and advanced, is no bar to a claim for any other demand, not included in the settled account. A settled account is only, on thejirst mew, evidence BILLS OF EXCHANGE, PROMISSORY NOTES, &C. 7 of its correctness. It may be impeached by proof of unfairness, mistakes or fraud ; and if it be confined to particular items of account, it concludes nothing in relation to other items not stated in it. Cross accounts, when of long standing and compli- cated, are fruitful sources of disputes. They should always be referred to arbitration. [See title " Arbi- tration."] Receipt, is a document acknowledging that he who signs it has received a sum of money, or any subject of claim, and relieving the party to whom the acquittance is granted. Though a receipt of money is strong evidence of its having been paid, yet it is not conclusive, and may be avoided, by showing that the money has not been re- ceived, or that it was given under misrepresentation. A general receipt, or acquittance in " full of all de- mands," is held to discharge all debts, except such as are on speciality, as bonds, bills, &c., which can only be met by some speciality of equal force, such as a general release. BILLS OF EXCHANGE, PEOMISSORY NOTES, DRAFTS AND CHECKS.* A BILL OF EXCHANGE is a written order or request, and a Promissory Note a written promise, by one person to another, for the payment of money, absolutely, and at all events. No set form of words is required. A promise to deliver, or to be accountable, or to be responsible for so much money, is a good bill or note ; but it must be exclusively and absolutely for the pay- ment of money. He who makes a bill is called the " drawer," the person to whom it is addressed, the " drawee," and the party in whose favor it is made, the "payee." If the drawee accept the bill, he is termed the " acceptor ;" when a bill is indorsed, the person indorsing is called the " indorser," the person to whom it is indorsed, the " indorsee." * See Forms of Notes, Bills of Exchange, Receipts, &c., In " Business Man's Assistant," a work which every person who transacts any kind of business should possess. Price 25 cents. 8 BILLS OF EXCHANGE, AND PROMISSORY NOTES. The person who makes a note is called the "maker," and the person to whom it is payable, the "payee;" and the terms " indorser," and " indorsee," are used as in bills. When and between what parties the consideration of a negotiable note or bill may be inquired into. It is usual to insert the words value received, in a bill or note, but they are not necessary, and value is implied in every bill, note, acceptance, and endorsement. We shall see, in another part of this work, that a contract is void, unless it is made for a good or valu- able consideration. In the case of negotiable notes, and bills of exchange, the law always presumes them to be founded upon a valid consideration, and no proof of a consideration is required. As between the immediate parties to a bill or note, the consideration may, how- ever, be always inquired into. Thus, in an action by the drawer against the accep- tor, or by the payee against the maker, the acceptor or the maker may show that the bill was accepted, or the note made, without any consideration, and it will be a good defence.to the action. So, in an action by an indorsee against the person indorsing the note to him, that person may show that the note was indorsed to such indorsee without any consideration, and it will be a good defence. But where the holder of a bill or note received it innocently, in the course of business, for a valuable consideration, and before it was due, he may collect it of any of the prior parties to the bill or note, notwith- standing it may have been originally issued without any consideration, or fraudulently, or that no consid- eration had passed between fhe prior indorsers, or that the prior indorsements were illegal, or though it may have come to him from a person who had stolen or robbed it from the true owner. Where, however, it is proved that a note got into circulation fraudulently, the holder will be obliged to show how he came by it, and that he gave a valuable consideration for it. (5 Pick. 412.). If an indorsee receive a note under circumstances which may reasonably excite suspicion that it was not PRESENTMENT FOR ACCEPTANCE. 9 good, he ought, before he takes it, to inquire into the validity of the note, and if he does not, he takes it subject to any legal defence which might be made against a recovery by the promisee. (6 Pick. 259.) Effect of taking a negotiable note or bill after it is due. Where a party takes a note, even for value, after it has been dishonored, or is overdue, he takes it sub- ject to all the equities which properly attach thereto between the antecedent parties. Thus, in an action by the indorsee of a note over- due against the maker, the maker may have the bene- fit of a set-off against the payee, which accrued before notice to him of the transfer. (5 Pick. 312.) So he may prove payments in part, or in whole, before the indorsement. (21 Pick. J93.) So he may prove fraud in its inception, or want for a failure of consideration, or that it was given for an illegal consideration, &c. Endorsees of notes payable on demand. In Massa- chusetts, in any action upon a promissory note payable on demand by an endorsee against the promiser, any matter shall be deemed a legal defence which would be a legal defence to a suit on. the same note, if brought by the promisee. (Laws, 1839, c. 121.) Note lost If a note or bill of exchange be lost, and the party prove the fact on his oath, he may still re- cover upon it; but if negotiable he may be required to tender a bond of indemnity both to the maker and in- dorser against all claims, that may afterwards arise, from such lost instrument. A bank receiving for collection a bill of exchange drawn here upon a person in another state, is liable for any neglect of duty in its collection, arising from its own officers, correspondents or agents. (22 Wend. 215.) A memorandum written on a note, in these words, *' for value received I hereby acknowledge this note to be due, and promise to pay the same on demand," and signed in the presence of an attesting witness, prevents operation of the statute of limitations. (1 Met. 21.) PRESENTMENT FOR ACCEPTANCE. Presentment of bills for acceptance. Bills payable at sight, or at so many days offer sight, or after demand 10 PRESENTMENT FOR ACCEPTANCE. must be presented to the drawee for acceptance ; oth- erwise the time of payment would never arrive. But bills payable on demand, or payable at a certain num- ber of days after date, or after any other certain event, need not be presented for acceptance at all ; but only for payment. It is, however, certainly advisable in all cases to endeavor to get the bill accepted. And though the owner is not bound to present the bill pay- able at a day certain, for acceptance before the day, the agent employed to collect the bill, or to get it ac- cepted and paid, must act with due diligence to have the bill accepted as well as paid. A bill payable at sight, or so many days after sight, as well as a bill payable on demand, must be present- ed in a reasonable time, or the holder will have to bear the loss proceeding from his default. In all cases, where a bill is presented, and accept- ance is refused, it is dishonored, and notice must be given to the drawer and indorsers in order to charge them ; and it makes no difference in this respect, whether the bill be payable at sight, or at a day certain. Presentment for acceptance, by whom, tchere, and to whom to be made. In general, bills should be present- ed by the holder or his authorized agent. But though the drawee may not be bound to accept a bill present- ed by a person not having proper authority to hold the bill, yet if he does accept it, such acceptance will in- ure to the benefit of the true holder. A bill should be presented for acceptance at the resi- dence or usual place of business of the drawee, with- out regard to the place where it is drawn payable, be- cause the former is supposed to be the place where he is to be found to accept, and the place of payment is not material until after acceptance. If the drawee is not to be found at the place to which the bill is directed, he having never lived there, or having removed from there, the holder should endeavor to ascertain the actual domicil of the drawee, and present the bill at that place. If the holder is unsuccessful in his inqui- ries, he may protest the bill as dishonored. The absence from his home, of the drawee of a bill payable at a time certain after date, when the holder ACCEPTANCE. 11 of the bill or his agent calls with it for acceptance, is not a refusal to accept, which requires the holder to give notice to the drawer and indorsers ; although such ab- sence, when the bill is due, is a refusal to pay, and au- thorizes a protest. The presentment should be to the drawee himself, or to his authorized agent ; and if he refuse, and the bill has been addressed to another person, then pre- sentment must be made to that person; otherwise the drawer or indorsers will not be chargeable. If the bill has been addressed to two or more persons not in part- nership, it is said that it must be presented to each. If the drawee has left the country, it will be suffi- cient to present the bill at his house, unless he has a known agent, when it should be presented to him. If on presentment it appear that the drawee is dead, the holder should inquire after his personal representative, and, if he live within a reasonable distance, should pre- sent the bill to him. Presentment should in all cases be made during the usual hours of business ; and it should not be made on days set apart by the laws of the country for religious or public purposes. The drawee should accept or re- fuse a bill as soon as it is presented to him ; but if he does not determine immediately, it is usual to leave it with him twenty-four hours to consider whether he will accept it or not. But in this the holder may use his own discretion. It is not incumbent on the endorser to inform the holder where the maker is to be found. ACCEPTANCE. Of the acceptance. The acceptance may be verbal, or it may be written, and it may be general or special. If a bill comes into the hands of a person with verbal acceptance, and he takes it in ignorance of such ac- ceptance, he may avail himself of it afterwards. An absolute acceptance is an engagement to pay the bill according to its tenor, which is done by the drawee writing " Accepted," and subscribing his name at the bottom or across the bill. If a bilL is made payable after sight, the date of acceptance should appear thus, " Accepted, A. B , April 20, 1849." 12 ACCEPTANCE. Any acceptance varying the absolute terms of the bill, either in the sum, the time, the place, or the mode of payment, is a special or conditional acceptance, which the holder is not bound to receive; but if he does receive it, the acceptor is liable only according to the terms of his acceptance. The holder, as just stated, is not bound to take a qualified acceptance, but is entitled to have the bill accepted absolutely and unconditionally, as it is drawn. He may, however, at his own risk, take a special ac- ceptance ; but he ought to give immediate notice to all the parties, and if he omits so to do he discharges them ; and it would seem, that if he wished to hold the other parties to the bill, he should have it protested as dishonored, unless they assent to the conditional ac- ceptance. A promise to accept a bill not yet drawn, shown to a third person, who, upon the faith of such promise, takes it for a valuable consideration, is in law an ac- ceptance of such bill, when drawn ; provided in the letter in which the promise is made, the bill to be drawn is described in terms not to be mistaken, and so as to distinguish it from all others; and provided the bill is drawn within a reasonable time after such promise. (2 Gall. 233 ; 2 Wheat. 66; 1 Story, 22.) Any act of the drawee, which demonstrates an in- tention to comply with the request of the drawer, will amount to an acceptance. An expression " leave the bill, and I will accept it," or a direction to a third person to pay the bill " written" thereon, is a sufficient acceptance. A verbal promise that, " if the bill come back, he would pay it," was held a good acceptance. An implied acceptance may be inferred from the drawee keeping the bill a great length of time, or any other act which induces the holder not to protest it, or to consider it as accepted. What notice of the non-acceptance of a bill niust be given the drawer or indorscrs to render them liable. Where the drawee refuses to accept a bill, the holder should give immediate notice of the fact to the drawer and indorsers, or such of them as he intends to look to LIABILITY OF ACCEPTOR. 13 for payment. The rules as to the form, time of notice, &c., apply as in the case of notice for non-payment. (See page 19.) In what cases it is necessary to have the bill protest- ed, will be stated hereafter. (See page 22.) Liability of acceptor.' An absolute acceptance is an engagement by the acceptor to pay according to the tenor of the bill ; and a conditional or partial one, to pay according to the tenor of the acceptance. The drawee, by accepting a bill, admits the genu- ineness of the drawer's signature. If, therefore, the drawee accepts a forged bill, or a bill w4th a larger amount than that fixed by the real drawer, he will nev- ertheless be liable to pay the bonajide* holder, and will have no claim upon the supposed drawer. Every drawee ought therefore to be careful, before accepting, to ascertain that the signature of the drawer is genuine, and that there has not been substituted for payment a larger sum than that really required by the drawer. But the drawee, by accepting, does not admit the genuineness of the signatures of the endorsers ; and the holder, in order to recover of the acceptor, must be able to prove that the signatures of the endorsers, through whom he claims, are genuine. The acceptor of a bill is the principal debtor, and the drawer and endorsers are to be regarded as sure- ties ; and nothing will discharge the acceptor, but pay- ment or release. He is bound, though he accepted without consideration, and for the sole accommodation of the drawer. And if he agrees to accept a bill, al- though he has no funds in his hands, and the bill is drawn on the faith thereof, and he afterwards refuses to accept it, or to pay it, he will be liable to the draw- er for the loss and expense, which his refusal may have occasioned him. An acceptor of a bill of exchange is not liable to the payee or indorsee for damages caused by non-pay- ment, but only for the amount of the bill, with interest and cost of protest. (10 Met. 375.) Bonajide. Anything done with good faith, without fraud or deceit. L. T. 2 14 ACCEPTANCE FOR HONOR. INDORSEMENT. ACCEPTANCE FOR HONOR. Acceptor for honor, or supra protest. A third per- son, after protest for a non-acceptance by the drawee, may intervene, and become a party to the bill, by ac- cepting and paying the, bill, for the honor of the drawer, or of a particular indorser. His acceptance is termed an acceptance supra protest, and he subjects himself to the same obligations as if the bill had been directed to him. The mode of acceptance is, for the acceptor person- ally to appear before the notary with witnesses, and make declaration that he accepts said bill in honor of the drawer or indorser, and that he will ratify the same at the appointed time ; and he then subscribes the same thus, " Accepted supra protest, in honor of A. B." In order to make the liability of the acceptor supra protest complete and absolute, the bill must be duly presented for payment, at the time it falls due, to the original drawee, notwithstanding; because, between the time of such refusal and the time when the bill would fall due, effects may have reached the drawee, out of which he might, if the bill were presented again, pay the bill ; and if the bill is not paid, it must be du- ly protested for non-payment, and due notice given to the acceptor supra protest. The acceptor supra protest has his remedy against the person for whose honor he accepted., and against all the parties who stand prior to that person. If he takes up the bill for the honor of the indorser, he stands in the same position as a bonajide indorsee, and has the same remedies to which an indorsee would be entitled to against all prior parties. The holder of a bill is not obliged to take an accept- ance supra protest. INDORSEMENT. Of the indorsement of a bill or note. The payee, or person legally interested in the instrument, or his agent, must himself make the first indorsement or transfer. A transfer by indorsement vests in the indorsee a right of action against all the parties whose names are on the bill or note, in case of default of acceptance or payment, INDORSEMENT. PRESENTMENT FOR PAYMENT. 15 and against an innocent indorsee for value ; no prior party can set up the defence of fraud, duress, or want of consideration. The indorsement is an implied contract that the in- dorser has a good title, and that the antecedent names are genuine; that the bill or note shall be duly honor- ed or paid, and if not, that he will, on due protest and notice, take it up. If a blank note or check be indorsed, it will bind the indorser to any sum, or time of payment, which the person to whom he indorses the paper may choose to insert in it. A bill cannot be indorsed for part of its contents after its acceptance; but if paid in part, may be in- dorsed as to its residue. An indorsement is valid, though written with a lead pencil. An indorser may so qualify his indorsement as to free himself from all liability; as if he should add, " at his own risk," or " without recourse ;" in which case, although the prior and subsequent indorsers would be liable, yet he would be free from all liability, by reason of his special indorsement. Where there are three consecutive indorsers to a note, the release by the plaintiff of the first indorser is a bar to an action against the others. (21 Wend. 108.) PRESENTMENT FOR PAYMENT. Of presentment for payment what necessary to bind drawer and indorsers. A bill or note must be present- ed for payment by the holder or his agent on the day it is due, if he wishes to make the indorsers liable. The presentment must be made to the maker or accept- or, at the place appointed for payment, or at his house or residence, or regular known place of business, or to him personally, if no particular place be appointed. The insolvency or death of the maker or acceptor, however notorious, will not excuse the neglect to make due presentment. If he be dead, presentment must be made to his personal representative, whether execu- tor or administrator, and if there be neither, then at the house of the deceased. 16 PRESENTMENT FOR PAYMENT. In the case of notes or bills payable on demand, a presentment for payment should be made within a reasonable time. In Massachusetts, a presentment of a note payable on demand at the expiration of sixty days from the date thereof, without grace, is deemed to have been made within a reasonable time. (Laws 1839, c. 121.) Where a note is made payable " at either of the banks," in a large city, where there is a large number of banks, the holder may present it at any one of the banks which he may select, and it will be a sufficient presentment. Tt would seem, however, in such case, that the holder ought to give notice to the promisee, where his note is. (13 Pick. 469.) Where a note is made payable at a particular place, as at a certain bank, it is sufficient for the holder to present it at the specified place, and if dishonored there, the indorsers will be liable upon due notice. Where no particular place of payment is specified on the note, the presentment ought to be made to the maker personally, or at his dwelling-house, or place of business. A presentment, in such case, at the maker's place of business is sufficient, if made in business hours, even if it be shut, and no person left there to answer in- quiries. - So a presentment at the residence of the drawee or maker is sufficient, even if he be out of town at the time. But if the maker removes his residence, or place of business, between the time the note was made and when it becomes due, the demand must be made at such new place of business or residence, if within the same State with the old, provided it be known, or can by due diligence be found. Where, however, the maker abandons his business and residence, and removes into another State, before the maturity of the note, the holder is not bound, in order to charge the indorser, to demand payment of the maker in the State to which he has removed ; but he is bound to demand payment at the maker's last residence or place of business, within the State where he made the note, if he can find it by the use of due diligence. (6 Met., 290.) WHAT WILL EXCUSE NON-PRESENTMENT. 17 Where a note is dated, and delivered in one State, and the maker actually resides in another, it would seem to be sufficient for the holder to demand payment at the place where it is dated, if he cannot find the maker, upon reasonable inquiry, within the State, and he has no known place of business there. If the holder of a note makes diligent, though un- successful inquiries, to ascertain the maker's residence, at the time the note falls due, it is sufficient, arid will be as effectual as an actual presentment. The absence of the maker of a note on a voyage at sea, if his family still reside in the State, will not ex- cuse a demand of payment, because it may happen that he has left with his family means to pay the note. It is sufficient to constitute a demand and refusal to pay a note, that the maker, on the day it becomes due, calls on the holder at his store, where the note is, and informs him that he cannot and shall not pay it, and de- sires him to give notice to the indorser, though the note is not produced. But where a note, made payable at a bank, is not at the bank when it falls due, and no demand is then made on the maker, the indorsee cannot charge the indorser, by giving him seasonable notice of non-pay- ment, although the maker had previously told the in- dorsee that it would be useless to send the note to the bank, because he could not pay it. The holder must have the note in his possession, ready to be delivered up, when the presentment for payment is made. What will excuse the non-presentment of a bill or note. We have seen that where the holder uses due diligence to ascertain the residence of drawee or mak- er, and is unsuccessful, it is as effectual as an actual presentment. So where a note is made for the accommodation of a particular indorser, the non-presentment of the note to the maker for payment, will not discharge such in- dorser from liability, as he is in fact the real party ow- ing on the note ; but as regards all other iridorsers to the note, due presentment must be made. L. T. 2* 18 WHAT WILL EXCUSE NON-PRESENTMENT. So an indorser may waive his right to have the note presented at its maturity, and in case of non-payment, to have proper notice of the fact. The usual words, where an indorser waives his right in this respect, are " waiving demand and notice." But an agreement to waive notice, will not excuse the party from making a due presentment for payment ; and care should always be taken in such cases, to use language that clearly imports a waiver of these rights, as courts construe such language strictly. Of course, the fact that one indorser has waived his right to demand and notice, does not affect the rights of the other indorsers. It is not necessary that the waiver should be in writ- ing, and if it clearly appears from all the circumstances that the indorser intended to waive notice, or demand, or both, he will not be entitled to them. Thus, where the indorsee, who lived in New York, observed to the indorser, when he received the note, that he had no confidence in the other parties to the note, and did not know them, and should look wholly to him, and the indorser replied, that he should be in New York when the note became due, and would take it up, if it were not paid by any other party to it ; it was held that this was a waiver of a right to notice of the dishonor of the note. When the maker of a promissory note has assigned all his property to the indorser for his security against the indorsements, the indorser is considered as waiving a demand on the maker, as well as notice to himself by an indorsee. (5 Mass. 170.) If due demand on the maker be not made, or due notice of non-acceptance or non-payment be not given, yet a subsequent promise to pay, by the party entitled to notice, be he either drawer or indorser, will amount to a waiver of the demand or notice ; provided the promise was made unequivocally, and with full knowl- edge of the fact of a want of due diligence on the part of the holder. When a draft has been protested for non-acceptance, the holder is not bound to present it at maturity for payment to preserve his recourse. (8 N. H. 66.) DAYS OF GRACE. NOTICE TO INDORSEES. 19 DAYS OP GRACE. Days of grace, or time when a demand should be made. In Massachusetts, three days of grace are al- lowed on all bills of exchange, payable at sight or at a future day certain, and on all promissory negotiable notes, orders and drafts, payable at a future day cer- tain. (R. S. c. 33, 5.) This is the rule in nearly all the States. No days of grace are allowed on bills, notes or drafts payable on demand ; and where no time of payment is expressed on the face of the note, it is treated as a note payable on demand. Where days of grace are by law allowed on bills or notes, they are not considered due until the expiration of the days of grace. It would therefore be equally unseasonable, to demand payment before the expira- tion of the third day of grace, as after the day. The demand must be made on the third day of grace, unless it happens to fall on Sunday, or some public day, when the demand should be made on the second day of grace, otherwise the drawer of the bill, and the indorser of the note, are discharged. 'The demand must be made at seasonable hours; as, within business hours, if made at the maker's place of business ; or within the usual hours for a family to be up, if made at his dwelling-house ; otherwise the de- mand is not good. So a note payable at a bank, must be paid within bank hours. NOTICE TO INDORSEES. What notice that a bill or note is dishonored, must be given the indorsers or drawer, to render them liable. It is not sufficient for the holder of a bill or note, to show that he has made a demand, or used due diligence to obtain the money of the drawee or maker ; but he must give seasonable notice to the drawer or indorsers, or their authorized agent, that the note or bill has been dishonored, otherwise they will not be liable. The holder of a bill or note, therefore, should, im- mediately upon its dishonor, give due notice thereof to all the parties he intends to look to for payment. 20 NOTICE TO INDORSEES. Any indorser who has received seasonable notice is liable, although no notice be given to the drawer or prior indorsers, as the holder need give notice to no one, excepting such as he wishes to hold liable. The indorser, therefore, on receiving notice of the dishonor of a bill or note, should give immediate notice to the drawer and indorsers to whom he means to resort. A notice, however, from the holder to any other party, will inure to the benefit of every other party, coming between the person giving the notice, and the person to whom it is given. The notice must be given by the holder or his au- thorized agent; and notice by a mere stranger will not be sufficient. If the holder is a bankrupt or in- solvent, then notice by his assignee will be sufficient. Where the parties to be notified reside in the same town or city with the holder, they must have personal notice of the dishonor of the bill or note, either verbal- ly or in writing ; or a written notice must be left at their dwelling-house or place of business. Either mode is sufficient; but one or the other must be ob- served, unless it is prevented by the act of the party entitled to the notice Where the parties do not live in the same town with the holder, the notice may be sent by mail or by a private hand. It is usual to send by mail, and that perhaps is the better way. Where the holder lives in the same town with a party to be notified, it will not be sufficient to send the notice to the Post Office, unless the holder can prove that the party actually got the notice. It has been thought that in a large city, where there is a penny post established, a notice sent through the Post Office would be sufficient. If the holder uses the ordinary mode of conveyance, he is not required to see that the notice is brought home to the party ; and putting the notice by letter into the Post Office is sufficient, though the letter should happen to miscarry. The notice must be given or sent within a reasona- ble time. It is considered a reasonable time to give notice the next day after the note is dishonored. If notice is to be sent by mail, it should be put into the NOTICE TO INDORSEES. 21 Post Office time enough for the first mail on the day next after that on which it is dishonored. Thus, if the third day of grace be Tuesday, and the note or bill is dishonored, and the drawer or indorser live out of town, the notice may be sent on Tuesday, but it must be put into the Post Office on Wednesday. The same rule, as to the time of notice, applies where the in- dorser and holder live in the same town. Each party successively, into whose hands a dis- honored note may pass, is allowed, it would seem, one entire day, for the purpose of giving notice. If the de- mand be made on Saturday, the notice may be given on Monday. In what cases a want of notice is excused. If the drawee refuses to accept, because he has no effects of the drawer in hand, and the drawer had no right to draw, and no right to expect his bill would be paid, protest and notice to the drawer are not necessary. This exception applies only to the drawer, and not to the indorser of a bill drawn without funds ; and it is advisable even to give due notice to the drawer, to avoid any mistake ; for if the drawer should suffer any detriment by reason of not having notice, he would probably be discharged. If the holder or his agent goes to the place of busi- ness or dwelling-house of the person entitled to notice, within seasonable hours, and finds the place shut, and no person there to receive notice, he is not obliged to go a second time, or even to leave a notice. If, howev- er, the party entitled to notice, has changed his resi- dence, notice should be sent to his new residence. The holder is also excused for not giving regular notice to an indorser, of whose place of residence he is ignorant, provided he uses reasonable diligence to discover where the indorser may be found. And where he has used reasonable diligence to discover the resi- dence of the indorser, notice given as soon as it is dis- covered is due notice. Notice may be waived by an express agreement be- tween the parties, in the same manner as a demand for payment, which see, 22 FORM OF NOTICE. PROTEST, WHEN NECESSARY. NOTICE. Form of notice. There is no precise form of words necessary to be used in giving notice of the dishonor of a bill or note, but the language used must be such as to convey notice to the party what the bill or note is, that payment has been refused by the maker or accep- tor, and that the holder looks to him for the amount. The notice may be given verbally or in writing, and must give information of the fact, that the note is dis- honored by the fault of the maker. Thus, a notice given to the indorser of a note, mere- ly stating that the person giving notice holds the note, and that it is due and unpaid, and demanding payment, is not sufficient to charge the indorser ; for it does not inform him that demand has been made of the promisor, and payment refused, or in any other way, by express declaration or reasonable implication, give him infor- mation that the note was in fact dishonored. PROTEST, WHEN NECESSARY. Foreign and Inland Bills. If the bill be dishonored, the holder should have it immediately protested, and the protest should be made by a notary-public , but if none can be procured, it is said that it may be made by an in- habitant, in presence of two witnesses.* (Bayley, 259.) By the general law-merchant, no protest is required FORM OF PROTEST. st. Commonwealth of Massachusetts, On this day of , in the year of our Lord one thousand eight hundred and , I, B. H. C., .Votary Public, by legal authority attmitfed and sworn,* and dwelling in the City of Boston, at the request of W. X., of , went with the original Note [or Bill of Exchange] of which ihe fore- going is a true Copy, [here insert the Note or Bill.] WHEREFORE, I, the said JVutary, at the request aforesaid, have protested and by these presents do solemnly protest against the Drawer of said Note, [or Bill] Endorserfsl, and all others concerned therein, for Exchange, Re- Exchange, and all Costs, Charges, Damages, and Inierest, suffered and sustained or to be suffered and sustained, by reason or in consequence of the. non-acceptance, or, [non-payment] of said Note [or Bill] of said C. D. Thus done and protested in Boston, aforesaid, and my Notarial Seal affixed, the day and year last written. B. H. C., Notary Public. Charges. Dolls. Cts. Noting, Protest, Record, Notice, * If a person, not a notary, protest* the bill, the words in italics can be left out. Notarial Fees, see Part Y. CHECKS, OR DRAFTS. 23 to be made upon the dishonor of any promissory note ; but it is exclusively confined to foreign bills of exchange. Neither is it a necessary part of the official duty of a notary to give notice to an indorser of the dishonor of a promissory note. But a state law or general usage may overrule the general law merchant in these res- pects. (2 U. S. Rep. 66.) Where a protest is necessary, it is not indispensable that it should be made by a person who is a notary, (z'6.) The relation which exists between a notary and the holder of a note, with regard to the protest of the note, and notice to indorsers, is that of principal and agent, and no more strict performance of duty is required of the notary than is indicated by the uniform practice of the place where the note is protested. (6W. & S. 264.) A bill drawn in one state and payable in another, is a foreign bill, so as to make the protest admissible in evidence, although all the parties were residents in the state where the bill was drawn. (10 Mass. 99.) A drawer or indorser of a foreign bill of exchange is liable to the expenses of the protest, and to a rate of damage established by law or usage. With respect to an Inland Bill, or Note, for which the law does not require a protest, it is sufficient, in all cases, to give notice of non-payment, to entitle the holder to claim interest of the drawer. Whether an accommodation note can be protested for non-payment, so as to authorize a charge against the maker and his sureties for notarial fees? At any rate a protest is unnecessary. (1 Alabama, 425.) CHECKS, OR DRAFTS. Checks or Drafts are orders addressed to the cash- ier of a bank or a banker, directing him to pay the sum specified in the check to the person named in it, or bearer on demand. In point of form, checks nearly resemble bills of exchange, except that they are uniformly payable to bearer, and should be drawn upon a bank or regular banker; though this latter point is not essential. They are assignable by delivery only ; and are payable in- stantly on presentment, without any days of grace be- ing allowed. 24 DAMAGES ON PROTESTED BILLS. Checks are usually taken conditionally as cash ; for unless an express stipulation be made to the contrary, if they be presented in due time and not paid, they are not a payment. It is difficult to define what is the due or reasonable time within which checks, notes, or bills should be presented. A man is not obliged to neglect all other business, that he may immediately present them : nev- ertheless it is the safest plan to present them without any avoidable delay; and if received in the place where payable, they had better be presented that day, or next at furthest. A creditor is not bound to take a check on a bank, transmitted to him as payment of his debt, and he may commence an action for the debt while the check is yet in his hands. A check on a bank payable at a future day, is not a bill of exchange, and requires no notice of dishonor. DAMAGES ON PROTESTED BILLS. On bills payable without the United States, not be- yond Cape of Good Hope, Sfc. When a bill of ex- change, drawn or indorsed in Massachusetts, and pay- able without the limits of the United States, (excepting places in Africa beyond the Cape of Good Hope, in Asia and the islands thereof,) is duly protested, the party liable for the contents, must, on due notice and demand, pay the same, at the current rate of exchange at the time of the demand, and damages at the rate of five per cent upon the contents, with interest, to be computed from the date of the protest, in full of all damages, charges and expenses. (R. S. c. 33.) On bills payable beyond Cape of Good Hope, Sfc. Except in the cases before mentioned, the party liable for the contents shall, on due notice and demand, pay the same at its par value thereof, with twenty per cent thereon, in full of all damages, interest and charges, (ib.) On bills payable out of this state, but within United States. Damages on inland bills which are protested, are as follows : On bills payable in the states of Maine, New Hampshire, Vermont, Rhode Island, Connecticut, and New York, two per cent; in New Jersey, Pennsyl- USURY. CONTRACTS AND AGREEMENTS. 25 vania, Maryland, Delaware, three per cent; in Virginia, and the District of Columbia, North Carolina, South Carolina, and Georgia, four per cent.; in any other of the United States, or the territories thereof, five per centum, with interest and costs. (Laws 1837.) On bills payable within this state. The rate of damages, upon bills of exchange, or orders for the pay- ment of money, drawn or indorsed in Massachusetts, for any sum not less than one hundred dollars, and pay- able in the state, at any place not less than seventy-five miles distant from the place where the same is drawn or indorsed, when such bills or orders shall not be duly accepted or paid, shall be one per cent in addition to the contents thereof, and interest on said contents. (R. S. 33.) TJSUKY. If, in any action brought on any contract, it shall appear that a greater rate of interest has been taken, directly or indirectly, than is allowed by law, the de- fendant shall recover his full costs, and the plaintiff forfeit three-fold the amount of interest. The party paying more than legal interest, may re- cover back three-fold the amount of interest paid. Action must be brought within two years. In an action where more than legal interest has been taken, the debtor and creditor may both be admitted as witnesses. A sale of a promissory note at a greater discount than legal interest, does not make the transaction usu- rious. (20 N. H. 98.) Where something besides interest, as such, is allowed on a loan and forbearance of money, it is a question of fact for the jury, whether 'the contract is fairly and honestly made, or whether it is a cloak for usury. (3 Met. 211.) CONTRACTS AND AGEEEMENTS. WRITTEN CONTRACTS. ANY person capable of binding himself by contract, is capable of entering into an agreement. A person Non-corwoos cannot enter into an agreement. L. T. 3 26 WKITTEN AGREEMENTS. Contracts made during a state of drunkenness are void- able, upon the ground, that it is a state of temporary idiocy or lunacy. By the common law Minors cannot contract, except for necessaries, such as food, clothing, medicine and education ; and in judging of what are necessaries, the comparative age and position of the party will be considered. If one lend money to a minor, it would seem that the borrower would not be bound, though he lay it out on necessaries, as the ne- cessity is judged of from the nature of the contract, not from what the minor may do in consequence of it. A Wife, during intermarriage, is incapable, without her husband's consent, of acting on an agreement; except with respect to such real and personal property as is secured to her by deeds of trust. No sum exceeding one dollar can be recovered of a Seaman in the mer- chant service, for a debt contracted during the time he shall actually belong to any ship or vessel, until the voyage be ended. In Massachusetts, no action can be brought in any of the following cases : First, to charge an executor or administrator, upon any special promise to answer damages out of his own estate : or Secondly, to charge any person, upon any special promise to answer for the debt, default, or misdoings of another : or Thirdly, to charge any person, upon an agreement made upon consideration of marriage : or Fourthly, upon any contract for the sale of lands, tenements, or hereditaments, or of any interest in or concerning them : or Fifthly, upon any agreement that is not to be per- formed within one year from the making thereof; un- less 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 by him lawfully authorized. The consideration of any such promise need not be in writing. (R. S. c. 74.) No person is liable by reason of any representation, WRITTEN AGREEMENTS. 27 recommendation, or assurance, made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assur- ance be made in writing, and signed by the party to be charged thereby, (ib.) No contract for the sale of any goods,* wares or merchandize, for the price of fifty dollars or more, shall be good or valid, unless the purchaser shall accept and receive part of the goods so sold, or shall give some- thing in earnest to bind the bargain, or in part pay- ment; or unless some note or memorandum in writing of the bargain be made by the party to be charged thereby, (ib.) An assignee in insolvency is not to be "personally liable on any special promise, contract or agreement, unless the same shall be in writing, and signed by him. A new promise, by a debtor, to pay a debt, which has been running more than six years, and which cannot therefore be collected without a renewal of the promise, must be in writing, signed by the debtor, otherwise it will be of no force, (ib. c. 120.) It is not necessary, however, that the memorandum should be signed by both parties. It is sufficient if the name of the party charged appear thereupon ; and he will be bound, not only when it is signed by him, but whenever his name is written or printed within the body thereof, by his own order, or with his consent. The advantages of reducing all contracts and agree- ments into writing must be evident to every thinking mind, and that from a principle which all acknowledge, and to a certain extent, act up to that of reducing everything, as far as practicable, to certainty. If a contract is reduced to writing, a denial of it becomes impossible, from even the most unprincipled ; and forgetfulness of it, by one side, immaterial; since the proof of its- having been entered into is in the possession or power of the other side; and any disagreement as to its nature, terms or conditions, will be less liable to arise than if left to unassisted memory. Written contracts are presumed to contain all the * Provisions in relation to the delivery of mortgaged goods, &c., see title " Mortgages," Ifc. 28 WRITTEN AGREEMENTS. terms and conditions which the parties to them have agreed on ; and inasmuch as they manifestly contain a more deliberate and definite record of the intention and mutual understanding of the parties, than that loose talk which/ usually precedes a contract, the law has rightly insisted, that the parties shall not contradict such an instrument by parol evidence. If the terms of a written contract are ambiguous, they may be ex- plained verbally ; but no evidence to contradict what is written, by showing that the parties at the time intended something different, can be offered, unless there has been fraud. It is not necessary that the terms and conditions of a contract, when in writing, should all be specified in the same document; they may be contained in several papers, such as letters, from which the whole terms may be collected ; it must, however, be clear that there is a distinct agreement between the parties that there has been a proposal on one side, and an accept- ance of such proposal on the other. All Contracts and Agreements not under seal are void unless founded on some consideration. A valid and sufficient consideration or recompense for making, or motive or inducement to make the promise upon which a party is charged, is of the very essence of a contract not under seal, and must exist, although the contract be reduced into writing ; otherwise the promise is void, and no action can be maintained thereon. All promises, therefore, which are wholly gratuitous, are void for want of consideration. To make a promise binding, the party making the promise must have ob- tained some advantage, or the party to whom it is made must have suffered some loss or sustained some injury and inconvenience, in consequence of the one party making and the other accepting the promise. It is not, however, necessary, in order to constitute a sufficient consideration, that a benefit should accrue to the person making the promise ; it is sufficient that something valuable flows from the person to whom it is made, and that the promise is the inducement to the transaction. Thus, where a benefit is done to a third person, at the request of the promiser, it is sufficient to support the promise. WRITTEN AGREEMENTS. 5!9 Mere inadequacy of consideration will not render a promise of no force ; for if a contract is deliberately made, without fraud, and with a full knowledge of all the circumstances, the least consideration will be suf- ficient. (5 Pick. 384.) Promise to pay the debt of another, when binding. It has already been seen, that a promise to pay the debt of a third person must be in writing, or it is of no force. It is not necessary, however, that the promise should be in writing, if the party sought to be charged has been treated as the principal debtor, and not merely as surety for the debt of a third person. Thus, the sale may be to one man, although the goods are to be delivered to another, and a person may promise to pay for goods supplied to or for work done at his request, or by his directions for a third party, as the real debtor, and not in the character of a surety ; and if he has been treated by the person who furnished the goods or did the work, as the party liable, and credit has been given to him, his promise or under- taking to pay is not a collateral promise to answer for the debt of another. In order to determine whether the party giving the undertaking or making the promise of payment is pri- marily or collaterally liable, the attending circum- stances and the situation of the parties must be re- garded, as well as the exact expressions used. If the seller has made the party to whom the goods have been furnished his debtor, if he describes him as such in his books, or in letters, he can only treat the other as a surety, and his promise to be binding must be in writ- ing. " I always," said an eminent judge, " require the tradesman to produce his books to see to whom credit has been given." (2 C. & M. 430.) A promise to pay the debt of a third person must not only be in writing, but it must be for a valuable consideration. The following examples will explain what is requisite to make such a promise valid : As my brother owes you $-28 for boots and shoes, I will pay you that sum for him on the 1st of next month. THUS. NOAKES, To Mr. Jones. 1st Jan., 1849. L T. 3* 30 UNWRITTEN AGREEMENTS. This written undertaking is not binding, because it is for the debt of another person, which is already in- curred, and there is no new consideration to support it. Had it been thus worded : In consideration of your undertaking- not to arrest my brother, (who is about to leave the state,) for the debt ol $28 which he owes you for boots and shoes, I hereby undertake to pay the amount on the 1st of next month. THUS. NOARES. To Mr. Jones. 1st Jan., 1849. it would have been valid ; because the consideration for it was the forbearing to arrest the brother. So a promise thus worded : To Messrs. A. & B. Gentlemen, I hereby undertake to pay for any goods which you may de.iver to Mr. S." would be valid ; as it is evident that A. & B. delivered the goods to S. on the above undertaking ; and it is the undertaking which is the consideration for the de- livery of the goods. Anything, however trifling, done by one party for the benefit of the other, will be a legal consideration. UNWRITTEN CONTRACTS. As the law requiring written agreements intended only to prevent frauds and perjuries, all agreements which are, in their own nature, free from the danger of introducing frauds and perjuries are good, though not in writing. Proof of a verbal agreement will be admitted both in law and equity to control a written agreement, when the detection of fraud renders such proof necessary, but not otherwise. A sealed contract may be waived by a new verbal agreement. As if one contract, under seal, to build a house, and after part fulfilment, being dissatisfied with the price, refuse to go on. and the other party as an in- ducement, verbally agrees to pay him for his work and materials, and that he shall not suffer, the latter agree- ment is valid, and puts an end to the former. All contracts are by speciality or parol ; if written and not sealed, they are to be considered as parol agreements. IMPLIED CONTRACTS. 31 IMPLIED CONTRACTS. IMPLIED Contracts are those which arise, not from the special agreement of the parties, but from the cir- cumstances of the case.* If I employ a person to transact any business for me, or perform any work, the law implies that I under- took to pay him so much as his labor deserved. If one take up goods or wares of a tradesman, with- out expressly agreeing for the price, there is an im- plied understanding that the value of them shall be paid. Another implied undertaking is when one has re- ceived money belonging to another, without a consid- eration given on the receiver's part ; for the law con- strues the money received for the use of the owner only, and implies that the person so receiving it, un- dertook to account for it to the owner. And if he unjustly detain it, damages may be recovered. So, money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where any undue advantage is taken, may be recovered back. When a person has laid* out and expended his own money for the use of another, at his request, the law implies a promise of repayment. Upon a stated account between two merchants or other persons, the law implies that he against whom the balance appears, has engaged to pay it to the other, though there be not any actual promise. Actions, however, to compel a person to bring in and settle his account are now seldom used ; the most effectual way to settle these matters, is to file a bill in equity, when a discovery may be had on the defendant's oath, without relying merely on the evidence which the plaintiff may be able to produce. Every one who undertakes any office, employment, trust, or duty, contracts with those who employ or en- trust him, to perform it with integrity, diligence and skill. And if, by the want of either of these qualities, any injury accrues to individuals, they have their rem- edy and damages by a special action on the case. This law also applies to the rights and liabilities of Conimon Carriers ; a subject fully treated in the " Shipper's and Carrier's Assistant, and Ma- rine and Inland Insurer's Guide," one of this series. Price 25 cents. 32 IMPLIED CONTRACTS. With an innkeeper, there is an implied contract to secure his guest's goods in his inn ; with a common carrier, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well without laming him ; with a tailor, shoemaker, or other work- man, that he performs his business in a workmanlike mariner ; with a consignee that he will be vigilant and careful in receiving and forwarding goods entrusted to his care ; and, upon refusal to receive goods consigned to him, he would be liable to the owner for any loss occasioned thereby. (6 W. &, S. 6(j.) If any one cheat me by false weights and measures, or by selling one commodity for another, an action lies for damages upon the contract; since the law im- plies that every transaction ought to be fair and honest. In contracts, in sales, it is constantly understood that the seller undertakes that the commodity is his own. In contracts for provisions, it is implied that they aretchole- some ; otherwise, in either case, action lies for damages. Assent required in an agreement. Silence may some- times be construed into assent, as when a person is fully aware of what is doing affecting his interest, and he makes no objection. Thus, if a man is present when a bargain is made, in which he is concerned, and he says nothing^ though it appears that he is neither awed into silence, nor in any way hindered from speaking, and that he is aware of the nature of his interest. (Powel on Con., 132.) So where a man sends his servant to buy upon trust, he is liable upon the servant's bargains. So where it cannot be proved that the servant was sent, but that his master knew he was in the habit of taking up goods upon his (the master's) account, he will be liable. (76.) Where a man does not know, and cannot know the nature of the engagement that he enters into, it is a general rule that his assent shall be valid when it is altogether in his favor. (76. 138.) Ignorance or error will in general invalidate an as- sent, as where the matter of the bargain is falsely ex- plained. This is always the case when there is decep- tion upon the face of the bargain. (76. 150.) SALE OF ESTATES. PURCHASE OF GOODS. 33 SALE AND CONVEYANCE OF ESTATES. As a general principle, the law affords no redress for oversights committed in the purchase of estates, which might have been avoided by ordinary judgment and vigilance. But if the vendor, knowingly, conceal latent defects, either as regards the estate or its title, he can- not compel the execution of the contract, though the estate be sold expressly subject to all its faults. A conveyance obtained for an inadequate considera- tion, from one not conscious of his right, by a person who had notice of such right, will be set aside, though no actual fraud is proved. But if there be no fraud in the transaction, mere inadequacy of price would not be deemed sufficient, even in equity, to vacate a contract. If it be falsely asserted that a valuation has been made of an estate at a higher price than really was the case, the purchaser is not bound to complete the pur- chase. So if the particulars of the sale of a house describe it to be in good repair when it is not so, the purchaser need not fulfil the purchase, unless there be time to complete the repairs before his right of posses- sion commences. A false affirmation of the amount of rent would relieve the purchaser. ;. From the moment of sale, the vendee becomes the virtual owner, and, consequently, from that time, enti- tled to any profit, or subject to any loss, which may subsequently accrue from the estate. And, on the other hand, the vendor is entitled to interest on the purchase money from the time of the bargain to that of payment. PURCHASE, SALE, AND DELIVERY OF GOODS. WITH regard to the sale of goods of $50 or more, no contract or agreement is binding, unless the goods are to be delivered within a year, or unless the contract be made in writing, and signed by the party or his agent. If one person agrees with another for goods at a cer- tain price, he may not carry them away before he has paid for them ; for it is no sale without payment, unless the contrary be expressed. If the seller says the price js ten dollars, and the buyer says he will give it, the 34 PURCHASE, SALE, AND DELIVERY OF GOODS. bargain is struck, and possession must be immediately given the buyer if the payment is tendered. But if neither the whole nor part of the money be paid, nor the whole of the goods nor any part of them delivered, nor any offer made, nor the agreement put in writing, it is no sale. No sale is complete, so as to vest in the buyer an immediate right of property, so Ipng as anything re- mains to be done between the seller and the buyer in relation to the goods, such as counting, weighing, or measuring. But when either are done, so that the arti- cles are separate and distinct, the bargain is struck, and the property of the goods is vested in the vendee, and remains at his risk. And if the property be left in the hands of the seller, and it perish, the loss falls on the buyer. So, if a horse die in the interval of sale and delivery, the conditions of the statute having been com- plied with, the vendor is entitled to his money, though no actual change of property has taken place. The delivery of a cent or glove is sufficient earnest within the statute. A sample, if it diminshes the bulk of the commodity to be finally delivered, is a sufficient delivery ; but if it be considered only as a specimen, forming no portion of the commodity, the delivery and acceptance will not be sufficient ; the delivery of a bill of parcels ; or of the receipt, ticket, sale-note, certificate, or stamp, will be sufficient constructive delivery. And also as respects bulky articles, the delivery of the key of the warehouse in which goods are deposited ; the marking the pur- chaser's name. on the goods ; the payment of warehouse rent; the assignment of a ship or bill of lading of goods at sea; the sale of lumber lying on a wharf; or of logs lying within a boom, &,c. If the purchaser of goods do not, within a reasonable time after the sale, pay for and take them away, the vendor may re-sell them. Where no agreement is made in respect to .delivery, it is, ordinarily, the duty of the buyer to take the goods ; for the seller has performed all that is incumbent on him. But if the terms of the contract require the seller to deliver the goods, and no place express or implied PURCHASE AND SALE OF GOODS. WARRANTY OF DO. 35 be appointed, the debtor may designate a reasonable and proper place, not too remote or inconvenient. If no place of delivery be agreed upon, the articles sold must be de- livered at the pi ace where they are at the time of sale. If any time for the delivery be agreed upon, and the vendor fail to comply, the vendee will not be bound to accept, if a compliance with the terms in respect to time be an essential consideration of the bargain. But a neglect to deliver at the time agreed upon, will not vitiate the contract, unless it works some injury to the vendee. Delivery of goods to an agent of the purchaser, such as a carrier, if with the knowledge and assent of the purchaser, is sufficient. Where an article is not in existence, but is to be manufactured or made, no property passes to the pur- chaser until it is finished and ready to be delivered to him, 'though made by his special order, or even if the price should have been already advanced. Until the thing is accepted by the purchaser, he acquires no property in or right to claim it ; and the maker may, if he choose, dispose of it to another person. But if made under the superintendence of a person appointed by the purchaser, or if he find the materials with which to manufacture it, the case would be different. The note or memorandum of a bargain for the price, of $50 or upwards, must state the price for which the goods were sold. An order for goods on " moderate terms" is a sufficient memorandum. (5 B. &. C. 583.) The meaning of a variety of documents may be taken conjointly to prove a sale. With respect to exchanges, there is no difference between sales and exchanges, but a delivery on one or both sides is essential to establish the contract. WARRANTY OF GOODS. IN all cases of express warranty, if the warranty prove false, or the goods are in any respect different from what the vendor represents them to be, the buyer is entitled to compensation, or he may return them. OD AVOIDANCE OF CONTRACT. But a general warranty does not extend to guard against defects which are obvious to ordinary circumspection, or where the false representation of the vendor is known to the vendee ; as if a horse with a visible defect be warranted perfect, or the like, the vendee has no remedy. Where goods are sold by sample, there is an implied warranty that the bulk is equal to the sample, otherwise the purchaser is not bound to take it upon any terms, although there may have been no fraud on the part of the seller. Tf, however, the article should turn out to be merchantable, from some latent defect in the sample, as well as in the bulk of the commodity, the seller is not answerable. The only warranty is, that the whole quantity answers the sample. If the vendor of goods make any assertion respecting the kind, quality, or condition ot the article upon which he intends the vendee should rely as a fact, and upon which he does rely, that is a warranty. (9 N. H. 111.) Warranty must be upon the sale ; if it be made after, it is void for want of consideration. AVOIDANCE OF CONTKACT. AFTER bargain for the sale of goods, if the vendee does not come and pay for them, and take them away in a reasonable time after request, the vendor may elect to consider the contract rescinded, and re-sell the goods. Generally, if either vendor or vendee neglect to fulfil the conditions of the sale, the other is at liberty to avoid the bargain. A contract for the sale of goods may also be avoided by the Statute of Limitations, which fixes the period of six years as the term beyond which a plaintiff' cannot lay his cause of action. [See title " Limitations of Actions."] Although a good and sufficient consideration is ne- cessary to the validity of a simple contract, yet a con- tract may be avoided when founded on a legal consider- ation, if the execution of the engagement involve the violation of any public law or statute. Thus a contract AVOIDANCE OF CONTRACT. 37 could not be enforced which is contrary to the act for the prevention of stock-jobbing. Neither could an action be sustained on a contract contrary to public morals, though a consideration had been given or re- ceived. Nor for the value of prints on obscene and immoral subjects. Nor for the sale of intoxicating drinks. Nor for the hire of horses and vehicles on Sundays, unless used in works of necessity or charity. All secular contracts consummated on Sunday are void ; as well as all contracts which are repugnant to law, sound policy, or public morals. In contracts obtained by deception or misrepresen- tation, there must be some actual damage done to the plaintiff, to obtain ground for civil action. When persons are employed to bid for the owner at auction, not in order to prevent a sacrifice, but to ad- vance the price of the goods, by pretended competi- tion, the purchaser may treat the sale as void, if, in fact, the purchaser be thereby misled. Contracts in restraint of trade and business are void, as they militate against public policy. But it is differ- ent if one contract, for a valuable consideration, not to carry on a particular trade, or not to exercise it in a particular place. If a seller and purchaser combine for the purpose of secreting property from the creditors, with a mutual fraudulent interest, the sale is void. When a sale is made without consideration, it is void as to creditors. The seller retaining possession of the goods after sale, is evidence of fraud. Partners are liable for the fraud of one of the firm, or of their agent, in the sale of partnership property. But the firm is not bound if one partner give partner- ship security for a private debt of his own, and the cre- ditor have knowledge that it is out of the scope of partnership dealing. Verbal evidence of fraud is admissible against a written agreement. When the assignment is fraudulent, or not assented to by creditors, a creditor may proceed to secure his debt by attachment, or by a trustee process. L T. 4 38 PAYMENT. Contracts may be rescinded or waived, by all the parties to it dissenting from the bargain before the period of performance. Where a purchaser buys on the faith of a false re- presentation by the seller, touching the essence of the contract, the sale will be set aside in equity, whether the misrepresentation were the result of fraud or mis- take. (Story's R. 700.) If a seller mislead the purchaser by a false or mis- taken statement as to any essential circumstance, the sale is voidable, (ib.) So, where a person obtains goods upon a false re- presentation as to the value of his property, and gives his note in payment, the seller need not wait until the note falls due, but may, immediately upon discovering the fraud, waive the contract, and bring an action to recover the value of the goods. But in order to do this, the goods must have been obtained upon the false representation of the purchaser, and not of others, as to the value of his property. PAYMENT. IN some branches of trade, custom has established a general usage as to the period of credit upon sales of goods, and, where no specific stipulation is made to the contrary, this customary credit is as much a part of the contract as if expressly agreed upon ; the law implying that all persons deal according to the general usage, unless the contrary appear. Where no such usage prevails, and no time of pay- ment is specified in the contract of sale, the money is demandable immediately upon the delivery of the goods. If the vendor stipulate to deliver certain goods within a limited time, he cannot demand payment till the whole of the goods are delivered. A person contracting to deliver a certain quantity of goods, and failing to deliver the whole quantity agreed upon, may recover for the part delivered and accepted by the buyer. The buyer can only be exonerated from payment by refusing to accept apart ; for, if he accept and take the benefit of part, no protest, at the time of acceptance, will relieve him from liability of payment. INTEREST, WHEN IT MAY BE CLAIMED. 39 With respect to interest, it is determined that interest is not allowable on a demand for goods sold and deliv- ered, unless where there is a specific agreement for that purpose ; as by a bill of exchange, promissory note, or an express promise to pay interest ; then the vendor is entitled to interest from the time specified. So, when, from the usage of a particular trade, the intention of the parties, that a book-debt shall bear in- terest, can be collected, interest will be allowed. INTEREST, WHEN IT MAY BE CLAIMED. INTEREST is allowable, where there has been either an express or an implied contract therefor ; and a contract to pay interest will be implied either from a general mercantile usage, or custom ; as in the case of bills of exchange and promissory notes, upon which, in the absence of any other agreement, interest runs from the day when the principal ought to be paid. If a note be payable on demand, and there is no ex- press agreement in relation to interest, it does not commence running till after a demand is made. Where no other demand is made, the commencement of a suit for the money will be regarded as a demand for the purpose of computing interest. (9 Pick. 369.) Interest is never allowed upon an open and running account, unless by express agreement ; but as soon as the account is stated, and rendered to the debtor, and no objection is made to it by debtor, interest begins to run. (8 Verm. 258.) An account current, received and not objected to within a reasonable time, becomes a settled account, bearing interest from the time it is stated. (1 Baldwin, 536.) A demand of payment of an unsettled claim for goods sold and delivered, or services rendered, entitles the party to interest from the time of the demand, and a presentment of the account or commencement of a suit is sufficient demand upon which to found, and from which to date, a claim of interest. (22 Pick. 291.) An agreement for interest will be implied from the particular course of dealings between the parties, or the special custom of one party known and acceded to by the other ; as where it is the custom of a particular 40 INTEREST, WHEN IT MAY BE CLAIMED. person to charge interest upon all sales made by him, after the expiration of a certain time, in which case, he may charge all his customers with interest, who have knowledge that such is his custom. So if, ac- cording to an established usage, or an understanding between the parties arising out of their mode of deal- ing or otherwise, a certain term of credit is to be given, no interest can be claimed until after the expiration of that term. (8 Wend, 109.) So, a contract to pay interest is implied, where the money of one person has been used, or detained wrong- fully, by another, or been kept by another, when it should have been paid over. (9 Pick. 369.) Where an agent, having received money, unreason- ably neglects to inform his employers of it, he is liable for interest from the time when he ought to have given information. So, interest is to be allowed where the law by implication makes it the duty of the party to pay over the money to the owner without any previous demand on his part, (ib.) Interest is to be allowed upon money paid. at the re- quest and to the use of another from the time of pay- ment, (I Pick. 118.) Manner of computing interest on notes where partial payments have been made. In casting interest upon bonds, notes, &c., upon which partial payments have been made, every payment is to be first applied to keep down the interest ; but the interest is never allowed to form a part of the principal, so as to carry interest, for the effect in such case would be to give compound in- terest, which the law does not allow. To avoid this, the following rule has been adopted : Compute the interest on the principal sum, from the time when the interest commenced to the first time when a payment was made, which exceeds, either alone or in conjunction with the preceding payment, if any, the interest at that time due ; add that interest to the principal, and from the sum subtract the payment made at that time, together with the preceding payments, if any ; and the remainder forms a new principal, on which compute and subtract the interest, as upon the first principal ; and proceed in this manner to the tinae of the judgment (17 Mass. 117.) LIMITATIONS OF ACTIONS. 41 LIMITATIONS OF ACTIONS. (Laws R. S. c. 120.) What debts must be collected, and what actions must be brought within six years : First, all actions of debt, founded upon any contract, or liability not under seal, except such as are brought upon the judgment or decree of some court of record of the United States, or of this, or some other of the United States: on judgments rendered in any court, not being a court of record : for arrears of rent : of assumpsit, or upon the case, founded on any contract or liability, express or implied : for waste and for tres- pass upon land : of replevin, and all other actions for taking, detaining or injuring goods or chattels : all other actions on the case, except actions for slander- ous words, and for libels. Exception in the case of attested promissory notes and bank bills. None of the foregoing provisions shall apply to any bills, notes, or other evidences of debt, issued by any bank ; nor to a promissory note signed in the presence of an attesting witness, the action upon which may be brought by the original payee, or by his executor or administrator, at any time within twenty years. Exception in the case of mutual accounts or accounts current. All actions for debt and assumpsit, for the balance of an open or mutual account, may be brought within six years from the time of the last item proved. Actions to be brought within two years. All actions for assault and battery, false imprisonment, slanderous words, and for libels, shall be commenced within two years. Actions against sheriffs. All actions against sheriffs, for the misconduct or negligence of tljeir deputies, shall be commenced within four years. Actions to be brought within twenty years. All per- sonal actions on any contract, not limited by the fore- going sections, or by any other law of this jCommon- wealth, shall be brought within twenty years Exceptions on account of minority, fyc. If, when a cause of action first accrues, the claimant is a minor, L. T. 4* 42 LIMITATIONS OF ACTIONS. a married woman, insane, imprisoned, or out of the United States, or if the defendant is out of this state, the time of limitation does not begin till the disability is removed. The time of a defendant's absence from this state, after a cause of action accrues, is not counted as part of the time of limitations ; nor is the time of the con- tinuance of a war between this country and that of an alien plaintiff. Exception in case of the death of either party. In case either party shall die within the time herein limited, or within thirty days thereafter, if the cause of action does by law survive, the action may be com- menced by or against the executor or administrator of the deceased within two years after the grant of letters testamentary or of administration. Exception where the cause of action is fraudulently concealed. If any person shall fraudulently conceal the cause of an action from the knowledge of the person entitled thereto, the action may be commenced within six years after the person, who is entitled to bring the same, shall have made such discovery. Acknowledgment or new promise must be in tcriting. Any acknowledgment of indebtedness or promise, to prevent the operation of the statutes of limitations, must be made in writing, and signed by the party chargeable thereby. Aclmoiclcdgment or promise by one of several debtors. One of several joint contractors shall not lose the benefit of a limitation by reason of any acknowledg- ment or new promise made or signed by any of the other joint contractors. Effect of part payment. No memorandum or en- dorsement of any payment of principal or interest, made on a note or other writing by one, by or on behalf of the party to whom such payment purports to be made, is deemed sufficient proof of payment to take the case out of the statute. PART II. MODE OF ENFORCING PAYMENT OF DEBTS. MODE OF PROCEDURE IN CIVIL ACTIONS. THE person who commences an action is termed the plaintiff, and the person against whom the action is brought, the defendant. Before the suit is begun, the attorney of the plaintiff usually writes a letter to the defendant, apprising him of the demand of his employ- er, and that, if not complied with, legal proceedings will be instituted : this intimation producing no satisfacto- ry result, the action begins by issuing a writ to arrest the defendant, (see title, " Writs, Attachments," &,c.,) or to attach his property and summon him to appear before the court which is to try the action, at a time stated in the summons, or simply to summons him to appear before the court at a stated time. If the defendant does not appear, then he is default- ed, and at the end of the term in which the action is entered, judgment is rendered against him, and execu- tion is issued against his goods and estate, or his body. Where the defendant wishes to appear, he or his attor- ney goes to the clerk of the court at which the writ is returnable, and requests him to enter his appearance in the suit, which is accordingly done. The next step for him is to plead,* or to state the grounds of his de- * Bill of particulars. Before appearance, or at the commencement of the action, if the demand of the plaintiff 1 is not disclosed in the declaration in the writ, the defendant may require that it be exhibited. A Bill of Particu- lars is a statement in writing of what the plaintiff seeks to recover in his action. Its object is to furnish the defendant with a better, or more specific statement of the plaintiff's cause of action, than is to be collected from the declaration in the writ. When the defendant pleads a set-off, he will al- ways be required to give a bill of particulars. 44 MODE OF PROCEDURE IN CIVIL ACTIONS. fence. Where he intends to plead the general issue only, that is, to deny the plaintiff's claim and call upon him for proof, it will be sufficient to do so, any time before the trial ; but where any special matter of de- fence is relied upon, as accord and satisfaction, tender, set-off, &c., the courts require the defendant to file it, within a certain time after the return of the writ, in order that the plaintiff may have reasonable notice of the fact, so that he may be prepared to meet it, at the trial. On trial, the jury being sworn, the plaintiff, by him- self, or his attorney, states his case, and puts in his ev- idence; he is followed by the defendant's counsel, who takes the grounds of his defence, and puts in his evi- dence; and the arguments are then heard, usually that of the defendant first, then that of the plaintiff. Both sides having finished, the judge sums up the whole to the jury, omitting all superfluous circumstan- ces ; observing wherein the main question and princi- pal issue lie; stating what evidence has been given to support them, with such remarks as he thinks necessa- ry for their direction; and giving his opinion on mat- ters of law arising upon that evidence If any of the ruling in matter of law of the presid- ing judge are, in the opinion of either party, erroneous, they may except to them, and if the case goes against them, they may have a hearing upon such exceptions be- fore all the judges of the supreme judicial court. Ifthe court sustains the exceptions, a new trial is granted. But if it shall appear that such exceptions are frivo- lous, immaterial, or intended for delay, double costs and interest may be awarded against the party taking the exceptions. Next follows the verdict ; and after it, unless a mo- tion is made for a new trial, (which must usually be made within four days after the verdict,) judgment is rendered. If the judgment is not suspended or reversed, the result and last stage in the proceedings of a suit is the execution, or the putting the sentence of the law in force. Executions are of clivers kinds. If the plaintiff obtain a verdict whereby the possession of land is awarded to him, a writ is directed to the sheriff, com- WRITS, ATTACHMENTS, JUDGMENT, ARREST, &C. 45 manding him to give actual possession to the plaintiff; and the sheriff may justify breaking open doors if the possession is not peaceably yielded. But if quietly given up, the delivery of a twig or turf, or the ring of the door, in the form of putting in possession, is sufficient. Executions in actions, where money only is recover- ed, may be entered against the body of the defendant, or against his goods and chattels, or against all three, his body, land, and goods. Every writ of execution must be sued out within a year after the judgment is entered, and not afterwards. For the most part, costs are paid by the vanquished party, except in a few instances, privileged by statute or prescription. WRITS, ATTACHMENTS, ARBEST, JUDGMENT, AND EXECUTION. Justices' Jurisdiction. Justices of the peace have jurisdiction in all civil actions wherein the debt or dama- ges does not exceed twenty dollars. Execution may be made to run into any county of the Commonwealth. Proceedings for the collection of debts, exceeding twenty dollars, must be commenced before the Court of Common Pleas. To bring an action of debt in the Supreme Court the sum must be six hundred dollars if in the county of Suffolk, and three hundred dollars if in other counties. Appeals. Appeals may be taken from Justices of the Peace to the court of Common Pleas. And on all matters of law from the Common Pleas to the Supreme Judicial Court. Writs. The suing out of a writ, with an actual intention of service, is a commencement of the action, and will save the demand from the effect of the statute of limitations, or of a tender. The writ, how Jramed. The original writ may be framed, either to attach the goods or estate of the de- fendant, and for want thereof to take his body ; or it may be an original summons, either with or without an order to attach the goods or estate. Original writs in which the plaintiff is not an inhabitant of this State, must be indorsed by a person residing in the State. I 46 WRITS, ATTACHMENTS, JUDGMENT, ARREST, &C. Original writ when to be served. Those issuing from the supreme court or common pleas, shall be served fourteen days, at least, before the term at which they are returnable, and those from justices of the peace, seven days. The debtor cannot be arrested, and his property at- tached on the same writ. When the creditor has the body of the debtor, his right to proceed against his pro- perty is suspended, and vice versa. Arrest and imprisonment of the debtor upon the writ. [See title " Imprisonment for Debt."] Attachment upon the writ. The attachment of pro- perty upon a writ is one of the most common and effectual means of securing a debt. The property at- tached is deemed to be in the custody of the law, and is to be retained by the officer for the purpose of satis- fying the claim of the creditor, in case he shall obtain judgment in the suit, take out execution, and levy it upon the property within a limited time. Attached goods shall be delivered to the debtor, upon his depositing the appraised value in money, or giving a boad therefor. Articles exempt from attachment by statute. First. The necessary wearing apparel of the debtor, and of his wife and children; one bedstead, bed, and the necessary bedding for every two persons of the family ; one iron stove, used for warming the dwelling house ; and fuel, not exceeding the value of ten dollars, procured and designed for the use of the family : Secondly. Other household furniture, necessary for the debtor and his family, not exceeding fifty dollars : Thirdly. The bibles and school books used in the family : Fourthly. One cow, six sheep, one swine, and two tons of hay ; the six sheep not to exceed thirty dollars. Fifthly. The tools and implements of the debtor, necessary for carrying on his trade or business, not exceeding fifty dollars in value : Sixthly. The uniform of an officer, non-commis- sioned officer or private, in the militia, and the arms and accoutrements required by law to be kept by him : WRITS, ATTACHMENTS, JUDGMENT, ARREST, kC. 47 Seventhly. Rights of burial, and tombs whilst in use as repositories for the dead. Articles in general exempted from attachment from their peculiar character and situation. Private papers and account books ; promissory notes ; lien ; money in the hands of an officer ; goods which cannot be re- turned to the debtor in the same plight in which they were taken, such as green hides in a vat, fruit, &c. ; the interest of a gratuitous bailee; goods in the hands of a pawnee ; goods in transitu as the property of the con- signee; a boat, cable or anchors in use, and necessary for the safety of the vessel. If an officer intermingle goods attached, with those of the debtor, so that they cannot be distinguished, he loses his attachment. Articles which cannot be removed. If the articles of personal property attached are of such a nature that they cannot well be removed, the goods are holden, if the officer deposit a copy of his writ with the town clerk, where the attachment is made. Property of a perishable nature, or live animals, at- tached, may be appraised by three persons duly sworn ; and the debtor may thereupon take the property on de- positing security for the amount of the appraisal ; or the officer may sell it and hold the proceeds to satisfy the judgment that may be obtained in the suit. The attaching creditors and debtor may, by agreement, sell any personal property attached on the original writ. Bail Bond. The debtor, arrested on an original writ, may give bail, which is done by entering into a bond, with sureties, and conditioned "that the defendant shall appear and answer to the plaintiff in the suit, and that he shall abide the judgment of the court thereon, and shall not avoid." [See title " Imprisonment for Debt."] How long after judgment ffoods attached on the writ may be held. If the plaintiff obtain judgment on his suit, then the property attached on the writ will be held for thirty days after the judgment, in order to their being taken in execution ; and if the attachment is made in the county of Nantucket, and the judgment is endered in any other county, or if the judgment is 48 WRITS, ATTACHMENTS, JUDGMENT, ARREST, kC. rendered in Nantucket, and the attachment is made in any other county, the property will be held for sixty days after final judgment. Execution. Execution may be taken out at any time after twenty-four hours from the rendition of the judgment, or from a reasonable return of a previous execution, and within one year after judgment rendered. If an execution be sooner issued and levied, the levy is void. Neither can an execution be taken out after the expiration of a year. Renewal of Execution. The creditor may renew his execution from year to year, by paying to the clerk of the court of common pleas the sum of twenty-five cents. If he neglect to do this, he will have to resort to a writ of scire facias, or an action of debt, to revive his judgment. Time within which judgment may be obtained. Where there is no controversy, and the case is default- ed, judgment is rendered as of the last day of the term, unless otherwise expressly ordered by the court. If there is a controversy, the trial is seldom, if ever, had at the first term at which the writ is returnable ; but the case is continued to the second term, making, where the action is brought in the Court of Common Pleas, some six months after the writ is returned, before the case is tried.* Goods seized on execution when sold at auction. When goods are seized on execution, they shall be safely kept, at the expense of the debtor, for four days at the least, and may be sold by public auction, within fourteen days next after the seizure, the officer having first advertised the same forty-eight hours at least be- fore the time of sale, unless the debtor shall, before such sale, redeem them. If the value of the goods to * In Boston, the justices' courts are held every Wednesday and Saturday, on which days, all writs issuing from such courts, are return- able. Every justice's writ must be served at least seven days before the return day. ' If no appearance is made for the defendant, the case is de- faulted on the relurn day ; if any defence is to be made, the action is tried on the next court day after the return day ; so that a parly can uUain judgment in an action in the justices' court within seven or ten days alter the suit is commenced. The delay and consequent expense may he obviated, by taking from the debtor, when goods, &o., are sold, a note, with power to confess judgment. (See title " Acknowledgment of Defct.") TRUSTEE RO CESS. 49 be sold exceeds the sum of $300, the officer, if request- ed by either party, must give notice by advertisement in some newspaper published in the county, and the sale, in such case, may take place at any time after the expiration of four days, and within thirty days. Real estate taken on execution. When execution is levied on real estate, the land must be appraised, and the creditor receive possession from the officer. The execution must be recorded within three months. The debtor has one year to redeem his land, by paying the debt, costs, and interest, and such reasonable expenses as may be incurred in repairing and improving prem- ises; deducting the amount of profits received by the creditor, or which he might have received. TKUSTEE PKOCESS. (Laws, R. S. c. 109.) Who are liable as trustees. Every person, having any goods, effects, or credits of a debtor, entrusted or deposited in his hands or possession at the time of ser- vice of the writ, may be summoned as a trustee of such debtor, and such goods, effects or credits, will be held to respond to the final judgment in the suit, precisely as attached by the ordinary process. What demands are not attachahle by this process. No person shall be adjudged a trustee, in either of the cases following, to wit: First, By reason of having drawn, accepted, made or indorsed any negotiable bills, drafts, notes, or other security. Secondly, By reason of any money or other things, received and collected by him, as a sheriff or other officer, by force of an execution, or other legal process, in favor of the principal defendant. Thirdly, By reason of any money in his hands as a public officer, and for which he is accountable mere- ly as such officer, to the principal defendant. Fourthly, By reason of any money or other thing due from him to the principal defendant, unless it is, at the time of the serving of the writ on him, due ab- solutely and without depending on any contingency; nor, L. T. 5 50 TRUSTEE PROCESS. Fifthly, By reason of any debt due from him on a judgment, so long as he is liable to an execution on the judgment. ' Sixthly, For debt due for services of wife or minor children, except for the excess above twenty dollars. Fffect of payments made or liabilities incurred by trustee, after service of writ but before service has come to his knowledge. If, after the service on the trustee, but before he has any knowledge thereof, he shall in good faith make any payment, or become in any way liable to any third person, for or on account of the goods, effects or credits in his hands, or shall have de- livered the same to the original defendant, or to any other person entitled thereto, he shall be allowed there- for, in the same manner as if the payment or delivery had been made, or the liability incurred, before the service of the writ on him. Trustee when and how discharged. If any sup- posed trustee shall appear, either in person or by at- torney, and declare in writing that he had not, in his hands or possession, at the time when the writ was served on him, any goods, effects or credits of the principal, and shall submit himself thereupon to exa- mination upon his oath, and if the plaintiff shall de- cline to examine him, or if upon such examination his declaration shall appear to the court to be true, he shall be discharged. Trustee may be examined on oath. Every such de- claration may be signed by attorney, and if the plaintiff proceeds to examine the supposed trustee thereupon, he shall propose interrogatories in writing, which shall be answered in writing, and signed by the supposed trustee, and sworn to by him in open court, or before any justice of the peace. If any person so summoned shall admit that he has in his hands any goods, effects or credits of the princi- pal, or shall wish to refer that question to the court, upon the facts, he may, instead of the declaration be- fore mentioned, make a declaration, setting forth such facts as he shall deem material, and submit himself thereupon to a further examination on oath. TRUSTEE PROCESS. 51 Consequence where trustee does not appear and answer. When any person, who has been duly summoned as a trustee, shall neglect to appear and answer to the suit, he shall be defaulted, and shall be thereupon ad- judged a trustee. Mode of trial when trustee appears. The answers and statements, sworn to by any person summoned as a trustee, shall be considered as true, in deciding how far he is chargeable, but either party may allege and prove any other facts, not stated nor denied by the sup- posed trustee, that may be material in deciding that question. An assignee of a claim may appear to maintain his right, voluntarily, or on notice by order of court, and may be admitted as a party, and will be liable to pay costs to the plaintiff, or entitled to receive costs from him, at the discretion of the court. Principal defendant may be a witness, fyc. The principal defendant may be used as a witness by the attaching creditor or the adverse claimants, in a suit between them. Trustee having in his hands specific goods and not money. When the trustee holds in his hands other property than money, he shall deliver the same to the officer, or as much thereof as shall satisfy the execu- tion rendered against him. Contract of trustee to deliver the goods at a certain time and place, how affected by the trustee process. - A person under contract to deliver specific goods at any certain time or place, being summoned as a trustee, shall not be compelled to deliver at any other time and place, and may fulfil his contract and be discharged, unless he shall be previously adjudged to be a trustee. A trustee having a lien on goods, by pledge or mort- gage, may enforce his claim, unless he shall have been paid or tendered the amount due him under an order of court. Trustee when liable for the non-delivery of such goods. If any trustee shall refuse or neglect to deliver any goods in his hands, when lawfully required by the offi- 52 TRUSTEE PROCESS. cer, who serves the execution, he shall be liable to the plaintiff in the action for the value thereof, after de- ducting the amount, if any, of his lien thereon. Case of a fraudulent conveyance to trustee. If any person, summoned as a trustee, have in his possession any property of the principal defendant, which he holds by a conveyance or title, that is void as to the creditors of the defendant, he may be adjudged a trustee, on ac- count of such property, although the principal defend- ant could not have maintained an action therefor against him. Case of mutual demands between principal and trus- tee. Every trustee shall be allowed to retain or de- duct out of the property in his hands, all his demands against the principal, of which he could have availed himself, if he had not been summoned as a trustee, and he shall be liable for the balance only. In the demands, mentioned in the preceding section, to be adjusted between the trustee and the principal defendant, there shall not be included, on either side, any claim for unliquidated damages for wrongs or in- juries. Trustee process becomes null and void if no demand is made on execution within thirty days after final judg- ment. Costs and expences of trustee. If any person, sum- moned as a trustee, shall appear at the first term, and submit himself to an examination upon oath, as before provided, he shall be allowed his costs for travel and attendance, and such further sum as the court shall think reasonable, for his counsel fees and other neces- sary expenses. If adjudged a trustee, his costs and charges shall be deducted and retained, out of the goods in his hands, and he shall be chargeable for the balance only, to be paid on the execution. And if the property in his hands as trustee, shall not be of sufficient value to discharge the costs taxed in his favor, he shall have judgment and execution against the plaintiff for the balance of such costs so taxed, deducting the sum disclosed, in the same man- ner as if such trustee had been discharged by the judg- ment of the court in such action. TRUSTEE PROCESS. REPLEVIN. 53 If discharged as a trustee, his said costs and charges shall be paid by the plaintiff, and the trustee shall have judgment and execution therefor accordingly. Trustee when liable to pay costs. If any person, summoned as a trustee, and who dwells in the county in which the writ is returnable, shall, without any rea- son which the court shall deem sufficient, neglect to appear at the first term and submit himself to an ex- amination as before provided, he shall be liable for all costs for the plaintiff's travel and attendance, until the trustee shall appear as aforesaid, provided the plaintiff recovers judgment in the suit, and that his said costs are not otherwise recovered and received by him. Penally for perjury on examination as trustee. If a trustee be convicted of perjury, besides the ordinary penalties, he shall be subjected to satisfy the whole judgment against his principal. REPLEVIN. WHEN any goods, of the value of more than twenty dollars, are unlawfully taken or detained, from the owner or other person entitled to the possession, or when any goods of that value, attached on mesne pro- cess or taken in execution, are claimed by any person other than the defendant in the suit, they may be re- plevied by the person claiming them. So, the mort- gagor of personal property, or any person claiming un- der him, who is entitled to redeem it, may replevy the property, if the mortgagee, upon being tendered the sum due on the mortgage, with all reasonable and lawful charges, expenses, &,c., shall refuse to deliver up the same. The officer, before serving the writ of replevin, must take from the plaintiff, or from some one in his behalf, a bond to the defendant, with sufficient sureties, in double the value of goods to be replevied, with con- dition to prosecute the replevin to final judgment, and to pay such damages and costs as the defendant shall recover against him, and also to return the said property, in case such shall be the final judgment. If it shall appear, upon the nonsuit of the plaintiff, L. T. 5* 54 REPLEVIN. TENDER. or upon a trial or otherwise, that the defendant is enti- tled to a return of the goods, he shall have judgment therefor accordingly, with damages for the taking thereof by the replevin, and his costs of suit. TENDER. GOLD and silver are the only legal tender in this country ; bank notes, however, are considered a good tender, unless objection is made on that account. A tender may be made on any contract for the pay- ment of money, at any time before the issuing of the writ; and it will be a good defence to the costs of suit and damages, and interest upon the debt after the tender is made ; but it is no defence to the debt. The money tendered for the debt should be brought into court. A tender may also be made, after an action is brought on such contract, of the whole sum due thereon, with the legal costs of suit incurred up to that time, provided it be made four days at least before the return day of the original writ. The tender may be made to the plaintiff or his attorney, and if not accepted, the de- fendant may plead such tender at the trial, bringing into court the amount so tendered for the debt and costs. If the tender is accepted, the plaintiff or his attorney shall give to the defendant a certificate or notice thereof to the officer who has the writ ; and if any costs are incurred by the officer after the tender, and before he has notice thereof, the defendant must pay it. The debtor must tender the whole amount of the debt, and all interest and costs that may have accrued up to that time, as a tender of part only is void, because the creditor is not bound to accept a part. But it would seem that a tender of a greater amount than what is due, is good, if it can be changed, so as to render it equivalent to the debt ; it is advisable, how- ever, to tender the exact amount. If there are several distinct sums, he may tender one of the sums, declaring that the tender is made for that sum. In making a tender, the money should be produced, TENDER. SET-OFF. 55 and if possible laid down and counted in the presence of the creditor ; and the tender must be to pay it over immediately. But if the creditor expressly dispense with its production, it need not be shown ; but it must clearly appear that he dispensed with its production, and to avoid running any risk, it is always advisable to produce it. The tender must be absolute and unconditional, and in one case it was held invalid, where it was accompa- nied with a demand of a discharge of the party making it. (9 Mete. 42.) SET-OFF. WHEN there are mutual debts or demands between the plaintiff and defendant in any action, one demand may be set-off against the other in certain cases, as follows ; The demand in set-off must be founded upon a judgment or contract, express or implied, and for a sum liquidated, or that may be ascertained by calcula- tion. A claim for wrongs and injuries done cannot, therefore, be made the subject of set-off. The demand in set-off must have existed at the com- mencement of the suit, and be due the defendant in his own right. Thus, an administrator, who has in his hands a distributive share of his intestate's estate, which belongs to an insolvent debtor, cannot withhold it from the debtor's assignee for the purpose of paying himself, by way of set-off, a debt due to him in his own right, from such debtor. (6 Mete. 537.) If, however, the demand was assigned to the defendant, with notice to the plaintiff of the assignment, before the commence- ment of the action, it may be filed in set-off by the defendant. The set-off is allowed in all actions founded upon demands, which could themselves be the subject of a set-off. If the demand, on which the action is brought, has been assigned, and the defendant had notice of the assignment, he cannot set-off any demand that he may acquire against the original creditor, after such notice. 56 SET-OFF. If there are several plaintiffs to the suit, no demand can be filed in set-off, unless it be due from all of them jointly. So, if there are several defendants, the demand to be filed by them in set-off, must be due to all of them jointly. The maker of a note payable on demand may, in an action on the note, by an indorsee against him, file in set-off any demands which he may have against the payee, and which he could have filed if the payee had brought the action. (9 Mete. 367 ; Laws 1839, c. 121.) In an action by the endorsee against the maker of a negotiable note endorsed when overdue, the maker can avail himself of any payments or off-sets, or other mat- ter of defence, which existed between himself and the promisee, at the time of the actual endorsement and transfer of the note to the holder. But he cannot file in off-set any claim against the promisee, that he may acquire after the note overdue is endorsed, although he had no notice of such endorsement. (5 Pick. 312 ; 6 Mete. 7.) In an action by an insurance company against an individual, the defendant cannot file in set-off a claim for damages upon a policy of insurance, for an alleged loss, when the claim is denied by the insurers, and the legality of such claim is undecided, and the amount of damages wholly unliquidated. (9 Mete. 42.) To entitle a defendant to a set-off, he must file a statement of his demands in court or in the clerk's office, at the time at which the action is entered, or within such further time as the court shall for special reasons allow, and must give written notice to the plaintiff or his attorney. Where a person has a claim against a party suing him, which he cannot avail himself of by way of set-off, he should immediately commence suit on the claim, and with the permission of the court off-set one judg- ment against the other. Executions between the same parties may be set-off, one against the other, in the following manner : The debtor can deliver his execution to the same officer who holds the other execution, and he shall set-off one against the other, and the balance due on the larger SET-OFF. UNLAWFUL ATTACHMENT AND ARREST. 57 execution may be collected in the same manner as if there had been no set off. Such set-off cannot be made, unless the creditor in one of the executions is in the same capacity and trust as the debtor in the other ; nor can it be made where one execution has been law- fully assigned before the creditor in the other execution becomes entitled to the sum due therein ; nor where there are several creditors or debtors in one and not in the other ; nor shall it be allowed as to so much of the first execution, as may be due to the attorney in that suit, for his fees and disbursements. UNLAWFUL ATTACHMENT AND AEKEST. AN officer cannot break open a dwelling house, by forcing the outer door or windows, for the purpose of making an attachment of the owner's goods ; and not only is such breaking an unlawful act, but the attach- ment made by means of it, is unlawful and invalid. (12 Pick. 270.) Neither can an officer, in the execu- tion of a civil process, force the outer door or windows of a dwelling house, for the purpose of arresting the occupant or any of his family, who have their ordinary residence there : and not only the children and the domestic servants of the occupant are entitled to this protection, but also permanent boarders, or those Who have made the house their home. But where a stran- ger, whose ordinary residence is elsewhere, upon a pursuit, takes refuge in the house of another, the house is not his castle, and the officer may break open the doors or windows, in order to execute his process ; so, if one, upon an escape after an arrest, flee into his own house, it shall not protect him. (13 Mass. 523.) But this restriction applies only to dwelling houses, and an officer may lawfully break open the door of any other building to make an attachment or arrest (16 Pick., 553) ; so, where he has gained a lawful en- trance through the outer door, he may break open the doors of the several apartments to execute civil process. An arrest, upon civil process, on Sunday, is illegal. A defendant, however, who has escaped, may be re- taken on Sunday. 58 UNLAWFUL ATTACHMENT, fcC. INSOLVENT LAWS. In delivering possession of lands recovered in a real action, the officer may break outer doors, and use force to expel the occupier, if necessary. (2 Dane's Ab., 65.) INSOLVENT LAWS. (Laws of 1838, '41, '44, '48.) Who may petition to take the benefit of the insolvent laws. Any debtor, owing not less than two hundred dollars, may by petition to the Commissioner of Insol- vency for the county within which he resides or in which he has his usual place of business, setting forth his inability to pay all his debts, and his willingness to assign all his estate and effects for the benefit of his creditors, take the benefit of the insolvent laws. In what cases creditor may force debtor into insolven- cy. There are certain cases in which a creditor having a demand of one hundred dollars, provable against the debtor's estate, may, at any time within ninety days, and not after, petition the commissioner of insolvency for the county in which the debtor resides, to issue a warrant to take possession of the debtor's estate for the purpose of distributing according to the insolvent laws. This petition must set forth, either : 1st, That the debtor has been arrested on mesne process, on a demand of one hundred dollars or up- wards, provable against his estate, and that he did not give bail according to law before the return day of said process : or, 2nd, That he has actually been in prison for more than thirty days, either on mesne process, or execution issuing upon a debt of one hundred dollars or upwards, provable against the debtor's estate : or, 3d, That his goods or estate have been attached on mesne process for a debt of one hundred dollars or up- wards, provable against the debtor's estate, and that he did not give bond with sufficient sureties, before the end of the term at which such process was returnable, to pay the plaintiff such sum as he might recover against him, within thirty days after the final judgment, Effect of Petition. If the facts set forth in the INSOLVENT LAWS. 59 petition, whether of the debtor or creditor, appear to the commissioner to be true, he shall issue a warrant, returnable at any time not less than ten nor more than sixty days from the issuing thereof, to a messenger, (who must be a sheriff or deputy sheriff of said county,) ordering him to take possession of all the estate, real and personal, of such debtor, excepting such as may be by law exempted from attachment, and of all the deeds, books of account, and papers of such debtor, and to keep the same safely until the appointment of assignees. Debtor must furnish Messenger with list of creditors within three days after the date of the warrant; and the messenger, in addition to publishing a notice of the first meeting in the newspapers, must send written notice, to the creditors named on the schedule, of the time and place of the first meeting of the creditors. First meeting : choice of assignees. At the first meeting the debtor must produce a full schedule of his assets. The choice of an assignee or assignees is also made at the first meeting, by the greater part in value of the creditors according to the debts then proved : provided, that when there are as many as five creditors and less than ten, two votes shall be required to elect the assignee ; and if there are ten or more creditors present, three votes. If no choice is made, the com- missioner appoints the assignee. The assignment, and the duty of the assignee under it All the property of the debtor of every descrip- tion, excepting such as is by law exempted from at- tachment, including all debts due him, and all liens, securities, rights of action, rights of redemption, &c., pass into the hands of the assignee. It is the duty of the assignee to convert the debtor's estate into money, and collect the debts as soon as he reasonably may, and after deducting the fees of the commissioner, messenger, and clerk, and his own reasonable compensation, distribute the balance, upon the order of the commissioner, to those creditors who have proved their claims. What debts may be proved against insolvent's estate. 1st. All debts due and payable from the debtor, at 60 INSOLVENT LAWS. the date of the first publication of the notice of issuing the warrant. 2nd. All debts then due, though not then payable, with a rebate or deduction of interest, in case interest be not payable until the debt becomes so. 3rd. All moneys due on any bottomry or respond- entia bond or policy of insurance, in case the contin- gency or loss should happen before payment of the first dividend. 4th. If any debtor has made or endorsed any bill or note, or if any person has paid any sum for him as endorser or surety, after the first publication of the notice, and before the payment of the first dividend, such debt may be proved precisely as if due and pay- able previous to such first publication. 5th. All demands against the debtor for any goods or chattels wrongfully taken or withheld by him. Oath administered to a creditor to prove a claim : " I, A. B., do swear that , of , by (or against,) whom proceedings in insolvency have been instituted, at and before the date of such proceedings was, and still is, justly and truly in- debted to me in the sum of , for which sum, or any part thereof, I have not, nor has any other person to my use, to my knowledge or belief, received any security or satisfaction what- ever, beyond what has been disposed of agreeably to law. And I do further swear, that the said claim was not procured by me for the purpose of influencing the proceedings in this case. Said oath may be administered by any justice of the peace, where the creditor resides more than five miles from the place of meeting of the creditors.* Provision where the creditor is secured by mortgage, pledge, or lien. Any creditor who has a lien or mort- gage upon the property of the debtor, may cause the same to be sold under the direction of the commis- sioner, and the proceeds applied to his debt, so far as they will go ; and may prove the balance of the debt against the debtor's estate ; or he may give up the property and prove his whole claim. But if the pro- perty be neither sold, or given up as aforesaid, then the creditor shall not be allowed to prove any part of his debt. The creditor may enclose the above, in an envelope, to the Commis- sioner or Assignee. INSOLVENT LAWS. 61 Second, third, and other meetings of the creditors. The second meeting is called by the assignee, on the order of the commissioner, and must be within three mouths after the issuing of the warrant ; at which meet- ing debts may be proved, and the debtor may amend the schedule of his creditors, and correct any mistake therein. This schedule is then sworn to by the debtor, and he also swears that he has delivered all his property of every description, (except such as is exempt from attachment,) to the assignee; and that if any property shall thereafter come into his hands which ought logo to the benefit of his creditors, he will deliver the same to the assignee. The third meeting must be within six months from the appointment of the assignee, at which meeting debts may be proved ; the assignee submits his accounts, and a dividend of the balance in his hands is ordered by the commissioner, among the creditors who have proved their claims. If any funds remain in he hands of the assignee, then a fourth meeting is to be called within eighteen months after his appointment, and a dividend made, which shall be final, unless there are some outstanding debts, which could not be collected within that time. If, after the payment of the debts proved, any surplus remains, it is to be paid to the debtor. Privileged debts, or debts to be paid in full. Debts due to the United States and the Commonwealth : debts not exceeding twenty-five dollars, due to opera- tives for labor performed in the service of the insolvent, within sixty-five days before the insolvency : and the legal costs in any suit, where an attachment is made, and afterwards dissolved by the insolvency of the debtor : are all to be paid in full, before any dividend is de- clared. Debtor how and ichcn discharged, what may prevent his discharge, or render a discharge void. No insol- vent debtor, whose assets do not pay fifty per cent, of the chims proved against his estate, shall receive a discharge, unless a majority in number and value of his creditors, who have proved their claims, shall assent L. T. 6 62 INSOLVENT LAWS. thereto, in writing, within six months after the date of the assignment ; and in no case shall a certificate of discharge be granted until the third meeting of the creditors of such debtor, nor at any time, except at a meeting of the creditors; and such discharge shall be null and void if the debtor, or any person in his behalf, shall have procured the assent of any creditor thereto, by any pecuniary consideration. No discharge of a debtor shall be granted or valid, if said debtor shall be a second time insolvent, and the assets of his estate shall fail to pay fifty per cent, of the debts and claims proved against him, unless three- fourths, in value, of the creditors whose claims are proved, shall assent thereto in writing. And if said debtor shall be a third tune insolvent, no discharge shall be granted him. No discharge of any debtor shall be granted, or valid, if the debtor, when insolvent, shall, within one year next before filing of the petition, by or against him, pay or secure, either directly or indirectly, in whole or in part, any borrowed money or pre-existing debt, or any liability of his or for him, if the creditor proves that, at the time of making said payment, or giving said security, the debtor had reasonable and sufficient cause to believe himself insolvent No certificate of discharge shall be granted, or, if granted, shill be of effect, if a debtor, within six months before the filing of the petition, by or against him, procures his lands, goods, moneys or chattels to be attached, sequestered, or seized on execution, or, being insolvent, or in contemplation of insolvency, shall, directly, or indirectly make any assignment, sale, transfer, or conveyance, either absolute or conditional, of any part of his estate, real or personal, intending to give a preference to a pre-existing creditor, or to any person who is or may be liable as indorser or surety for such debtor, unless said debtor shall make it appear that, at the time of making such preference, he had reasonable cause to believe himselfsolvent ; and all pre- ferences so made, are void, if the creditor accepting such preference had reasonable cause to believe the debtor insolvent. INSOLVENT LAWS. 63 Every certificate of discharge granted to a debtor, shall be of no effect, if he has wilfully sworn falsely as to any material fact in the course of the proceedings, or if he has fraudulently concealed any part of his estate or effects, or any books or writings relating there- to ; or if he has in contemplation of becoming insolvent, and of obtaining a discharge, made any payment, or any assignment, sale or transfer, either absolute or conditional, of any part of his estate, with a view to give a preference to any creditor, or to any person who is or may be liable as an indorser or surety for such debtor, or to any other person who has or may have any claim or demand against him : provided, that this clause shall not apply to any security given for the performance of any contract, when the agreement for such security is part of the original contract, and the security is given at the time of making such contract. And all such payments, assignments, sales and trans- fers, shall, as to the other creditors of such debtor, be void ; and the creditor so preferred, if he shall have accepted such payment or security, knowing that the same was made or given by the debtor contrary to the provisions of this section, shall not be allowed to prove the debt thus preferred. Allowance to be made debtor for support of family. The debtor receives one dollar a day from the as- signees, for his attendance on them or the commis- sioner, when his attendance is required. He is also allowed, out of his estate, for the necessary support of himself and family, such sum, not exceeding the rate of three dollars per week, for each member of his family, and for such time, not exceeding two months, as the commissioner shall order. Claim for necessaries furnished to debtor, not barred by his discharge, unless such claim has been proved against his estate. [For Fees of Commissioners of Insolvency, see Part V.] 64 IMPRISONMENT FOR DEBT. POOR DEBTOR'S OATH. IMPRISONMENT FOE DEBT. -POOR DEBTOR'S OATH. (Laws, R. S. c. 90, 97, 98 ; 1837, M7, '48.) When debtor may be arrested. No person can be arrested and imprisoned for any debt less than ten dol- lars, exclusive of costs. And no debtor can he arrested on mesne process, unless the creditor make affidavit that the debt is justly due, and that he has reasonable cause to believe that the debtor is about to depart beyond the jurisdiction of the court, and not to return until after judgment is rendered in the suit. It will be seen that this statute applies only to cases of contract, and that a party may be arrested in all ac- tions for wrongs and injuries, without any affidavit. Females exempt from arrest, except, fyc. No fe- male can be arrested for any debt, except on a judg- ment against her as a trustee, for the sum often dol- lars or more, in a process of foreign attachment. Debtor imprisoned how to be supported, if a pauper. When a debtor, claiming support as a pauper, is con- fined in close prison on execution, or on mesne pro- cess, he must be supported at the expense of the cred- itor, at the rate of 1 25 per week, so long as he is kept in close confinement on that suit. If the creditor, upon being requested by the jailer, neglect for twenty-four hours to give security, or ad- vance the money for his board, the jailer may dis- charge the debtor. The debtor may be discharged whenever all the money advanced shall have been expended. When bail are liable for support of debtor, and how long. Where a pauper debtor is surrendered by bail, and committed to close prison, he is entitled to support at the expense of the bail. The bail, however, by giving notice to the creditor of such surrender, may be released from his liability after seven days. The body of a debtor thus discharged, is not again liable on the same debt. Bond to surrender within thirty days. Persons in prison, when final judgment is rendered, may be dis- charged by giving bond with sureties to the creditor, in IMPRISONMENT FOR DEBT. POOR DEBTOR'S OATH. 65 double the amount of the judgment, to be approved by two justices, conditioned that he will surrender himself at the prison within thirty days. The officer who has the execution, may within that time leave said execu- tion, or a copy, with the jailer, and he is then to com- mit the debtor on his surrender. Debtors surrendered by their bail, may be released in the same manner. Goods and estate of the debtor to continue liable after his discharge, but he cannot be again arrested. When a debtor is discharged, the debt, costs, charges, &c., shall remain a claim against him, but his body shall never again be liable to arrest or imprisonment on the same debt, costs, or charges. A Debtor , having prison limits, cannot claim sup- port as a pauper. Bonds for the liberty of the yard. Any person committed on execution in any civil action, is entitled to the prison limits, on giving bond with sufficient su- reties, to continue a true prisoner within those limits for ninety days, and then surrender himself to go into close confinement, unless previously discharged by or- der of creditor, or by operation of law.* No one is allowed the privilege of the limits at any time after ninety days from the day of his commitment. The jail limits extend to the boundaries of the coun- ty within which the action is brought. Poor debtor's oath. Whenever any person shall be arrested for any debt; or whenever any person shall have been so arrested, and have given bail, or been committed to jail; or shall have been committed to jail on surrender, in court or otherwise, by his bail in the suit, he may, at any time after his arrest and commit- ment, give notice, in writing, to any justice of the peace in the county where the arrest was made, that he is desirous to take the benefit of the laws for the relief of poor debtors; or he may make the same known to the officer making the arrest, or to the jailer, whose duty it becomes to make the same known to some justice of the peace for the county, who shall * Should the ninety days expire, and the above requirements not have beeir complied with, ihe bail will be liable fordebt and costs. L. T. 6* 66 IMPRISONMENT FOR DEBT. POOR DEBTOR'S OATH. issue a citation to the creditor, or his attorney, to ap- pear at a time and place by him appointed, and exam- ine the debtor, if he sees fit, before two justices of the peace and of the quorum, relative to his property and his disposal of it. The citation must be served at least twenty-four hours before the time of.the examination. A Debtor may apply to the court to have oath ad- ministered, provided the debt amounts to ten dollars or upwards, on giving notice to the creditor or his at- torney, seven days before the return day of the writ. Mode of examination The justices shall examine the debtor on his oath, concerning his estate and effects and the disposal thereof, and his ability to pay the debt, for which he is committed, and they shall also hear any other legal and pertinent evidence, that may be produced by the debtor or the creditor. The creditor may propose to the debtor any inter- rogatories, pertinent to the inquiry, and they shall, if required by the creditor, be proposed and answered in writing, and the answers shall be signed and sworn to by the debtor; and the creditor may have a copy of the interrogatories and answers, certified by the justi- ces, upon paying therefor the same fees as for a depo- sition of the same length. Oath when administered. If the examination before the justices seem to them to warrant it, the debtor is allowed to take and subscribe the oath that he has not any estate, real or personal, to the amount of twenty dollars, except the goods and chattels by law exempted from attachment, and that he has not conveyed or con- cealed any property with design to secure the same to his own use, or to defraud his creditors. If justices refuse to grant Ms discharge, may give new notice, Sfc. If the justices shall not be satisfied that he is entitled to his discharge, he shall be re- manded to the prison ; but this shall not prevent him from obtaining his discharge upon new notice to the creditor, issued not less than seven days after the ser- vice of the former one, and by new proceedings before the same or some other justices, in the manner before provided. rf ,4 IMPRISONMENT FOR DEBT. POOR DEBTOR'S OATH. 67 Effect of the Oath. The oath, entitles the debtor to a certificate, discharging him from all liability to arrest from the same cause of action. The judgment, however, remains good against his estate. Swearing falsely voids the discharge, and makes him "liable to be punished for perjury. Debtors not to be discharged, if after commitment they misuse or misspend goods, fyc. If any debtor, after being committed on execution, shall misspend or misuse goods, effects, or credits, to the value of forty dollars, which are not exempted from being taken in execution, but which cannot be attached by the ordi- nary process of law, or so much thereof as is equal to the sum for which he is committed, without hav- ing offered the same to the creditor or his attorney, in whole or part payment of the debt, for which he is committed, he shall not be discharged. Penalty on any person aiding debtor in misusing property, fyc. If any person shall knowingly assist the debtor, in secreting, spending, or using any such goods, effects or credits, to the value of forty dollars, without offering the same to the creditor or his attor- ney, as provided in the preceding section, he shall pay to the creditor double the value of the same. Charges of Jr and, how made and punished. The creditor may, if he can, substantiate certain specific charges of fraud against the debtor, any one of which will prevent his discharge ; and subject him to im- prisonment to hard labor, for a term not exceeding one year. The charges must be fully, plainly and formally set forth in writing, signed and sworn to by the creditor, and a copy duly served on the debtor before the time of returning the writ, or ten days before an examina- tion. The only fraudulent acts which a creditor can charge, are : First, That since the debt was contracted, or the cause of action accrued, the debtor has fraudulently conveyed, or concealed, or otherwise disposed of, his estate or some part thereof, with design to secure the same to his own use, or to defraud his creditors : or PRINCIPAL, FACTOR AND AGENT. Secondly, That since the debt was contracted, or the cause of action accrued, he has hazarded and paid money or other property, to the value of one hundred dollars or more, in some kind of gaming prohibited by the statutes of the Commonwealth : or Thirdly, That he lias wilfully expended his goods and estate, or some part thereof, for the purpose of enabling himself to swear that he has not any estate to the amount of twenty dollars, except such as is exempted from being taken in execution : or Fourthly, If the action was founded on contract, that the debtor contracted the debt, with an intention not to pay the same : And the creditor shall not, upon such a trial, give evidence of any charges of fraud, that shall not be contained in his statement, made and filed as before provided, nor of any supposed fraudulent acts of the debtor, committed more than three years before the commencement of the creditor's original action. Fees for services in administering oath to be paid by debtor. [See title Fees, Part V.] PART III. GENERAL & SPECIAL LAWS. PRINCIPAL, FACTOR AND AGENT. FACTOR, a commercial agent residing at a distance from his principal, and having the superintendence of some brunch of his employer's trade in the place where he acts. A factor differ* from an ordinary agent in this, that lie does not represent his principal, bul acls as a principal himself in his transactions with third parlies. He is distinguished from a broker, in as far as he has the personal possession and management of ihe goods over which his superintendence extends. The factor carries on his commercial operations on commission. He receives consignments from his principal, and makes sales and remittances in return, balancing accounts from time to time. He may act without disclosing the name of his principal. He frequently holds a Del Credere* "Commission. The factor is personally responsible for whatever he may do exceeding the powers delegated to him, * This is a premium, or commission, charged by merchants for becoming responsible for the buyers of goods or underwriters ; so that in case of the failure of the latter, the owners are secured against loss. In oilier wordg for a Del Credere commission, he insures Vie debts. PRINCIPAL, FACTOR AND AGENT. 69 and where they are not expressed in the terms of his commission, his powers will he limited by the custom of the trade. He is not responsible *' at all events" (a< it is termed) for the safety of goods within his charge, that is to say, he is not liable fur them as if he had insured them against all risks ; but he ought to bestow on them the same care as on his own pro- perly, and it would appear that he will be amenable to his employei if he do not. He is not in the general case responsible for the consequences of fire, robbery, or other accident, but there are precautions which, in certain cir- cumstances, he must adopt. One of the most important is that of protect- ing kin principal's interest by insurance, and if he have effects in hand, he is in all cases bound to comply wiih directions to insure, being, on failure, him- self considered responsible. Where goods are consigned to a factor, his title t<> them, and right to dispose ol them, is g'-nerally conveyed in an in- dorsed bill oflading, but in questions with parlies privy to the transaction, it is held that a letter of advice is sufficient. Where the factor has absolute power to sell, indorsement of a bill of lading while the goods are at sea will pass them absolutely, and bar the principal's right to stop in transitu, " and in the absence of fraud, it seems that the assignee's knowledge of the fac- tors character would not affect his tiile ; for, in order to make notice mate- rial, it must be notice of something inconsistent with the right ofthe assignor to do the act under which the assignee claims, or of such circumstances as render the bill oflading not fairly and honestly assignable. But, inasmuch as the character of a factor is consistent with the power to sell, the know- ledge of this circumstance would not probably be considered as any im- peachment of the transaction if it would be otherwise valid." A factor has a lien on the goods consigned to him, not only for charges affecting those goods, but for his general balance. The lien extends to every portion of the goods, and when they are disposed of, to the proceeds. On parting with possession, the factor abandons the lien, and goods transmitted to him with a specific appropriation are excepted from it. A factor is liable for a loss arising from his neglect to keep his principal informed of matters material to his interest. (6 W. & S. 264.) . A factor is bound to remit to his principal the moneys received from sales of a consignment, unless there be an agreement or custom of trade, and if the latter be himself the factor of a principal abroad, he is bound to call on his factor in this country to transmit moneys when he is informed of it ; and if the money is lost by neglect to do so, he is accountable, (ib.) A factor sold goods to J. F. on six months, taking a note payable to him- self, including in it a debt owing to himself, and afterwards released J. F. and came in under his assignment. Held, that he thereby made the debt his own, he having released J. F. without authority. (tA.)J LAW OP FACTORS AND AGENTS, ENACTED BY THE LEGISLATURE OF MASSACHUSETTS, AND APPROVED BY THE GOVERNOR MAY 2, 1849. SEC. 1. Whenever any person, entrusted with mer- chandize, and having authority to sell, or consign the same, or otherwise transmit, or deliver the same to any other person, such person shall have a lien thereon, 1st. For any money or merchandise advanced, or negotiable security given by him, on the faith of such consignment, to or for the use of the person, in whose name such consignment or delivery was made: 2d. For any money, or negotiable security, or mer- chandise, received for the use of such consignee, by the person in whose name such consignment or delivery was made. 70 PRINCIPAL, FACTOR AND AGENT. SEC. 2. Such lien shall not exist for any of the purposes aforesaid, if such consignee shall not have probable cause to believe, at the time of such advance or receipt, that the person, in whose name such mer- chandise was shipped, transmitted, or delivered, was the actual owner thereof, or had a legal interest in said property, equal to the amount of said lien. SEC. 3. Whenever any consignee .or factor, having possession of merchandise, with authority to sell the same, or having possession of any bill of lading, permit, certificate, or order, for the delivery of merchandise, with the like authority, shall deposit or pledge such merchandise, or any part thereof, or such document, with any other person, as a security for any money or merchandise advanced, or negotiable instrument given by him, in good faith, upon the credit thereof, such other person shall acquire, by virtue of such contract, the same interest in, and authority over, the said mer- chandise and documents, as he would have acquired thereby, if such consignee or factor had been the actual owner thereof; notwithstanding the person, making such advances upon the faith of such deposit or pledge, may have had notice that the person with whom he made such a contract, was only an agent : Provided, however, that this act shall give validity only to such contracts ; and shall protect only such loans, advances and exchanges, as shall be made in good faith, and with probable cause to believe, that the agent making such contracts had authority so to do, and was not acting fraudulently therein, against the owner of such merchandise. SEC. 4. If any person shall accept such merchandise or document, from any such consignee or factor, in deposit or pledge for any antecedent debt, due from such consignee or factor, such person shall thereby acquire no other or further right or interest in, or authority over, or lien upon, such merchandise or documents, than such consignee or factor might him- self have enforced against the actual owner of the same. SEC. 5. Nothing in this act contained shall be con- strued or taken, PRINCIPAL, FACTOR AND AGENT. 71 1st. To affect the lien of any consignee or factor, at law, for the expenses and charges attending the ship- - ment, transportation, and care of any merchandise entrusted to him : 2d. Nor to prevent the actual owner from recover- ing such merchandise from such consignee or factor, previous to the pledge thereof, as aforesaid, or from his assignees, in case of his insolvency : 3d. Nor to prevent such owner from recovering any merchandise or document, so as aforesaid deposited or pledged, upon tender of the money, and restoration of the negotiable security, or property so advanced to such consignee or factor ; and, upon tender of such further sum of money, and restoration of such negotiable in- strument or property as may have been advanced or given by such consignee or factor, to such owner ; or upon tender of a sum of money equal to the amount or value thereof: 4th. Nor to prevent such owner from recovering, from the person with whom such merchandise may have been so deposited or pledged, any balance of money remaining in his hands as the proceeds of the sales thereof, after deducting the amount of the moneys so advanced thereon, on the amount of the negotiable security so given as an advancement as aforesaid. SEC. 6. If any consignee or factor shall deposit or pledge any merchandise, or document, as aforesaid, consigned or entrusted to him, as a security for any money borrowed, or negotiable instrument received by him, and shall dispose of or apply the same to his own use, in violation of good faith, and with intent to de- fraud the owner of such merchandise ; or if any con- signee or factor shall, with the like fraudulent intent, apply or dispose of, to his own use, any money or ne- gotiable instrument, raised or acquired by the sale or other disposition of such merchandise, such consignee or factor shall, in every such case, be deemed and ad- judged guilty of a misdemeanor, and shall be punished therefor, by a fine not exceeding five thousand dollars, and by imprisonment for a term not exceeding five years. 72 PARTNERSHIPS. GENERAL PARTNERSHIP. To constitute a partnership, and to make a person liable as a partner, there must he an agreement between him and his colleagues to share in all risk of profit and loss; or he must have permuted them to use his credit, and to hold him out as jointly liable with themselves. In general all the partners appear ostensibly to the world, constituting what is called the hoiife orjirm. A number of persons agreeing to subscribe sums of money for the pur- pose of obtaining a bill in the legislature to make a canal or railway are partners in the undertaking ; and. therefore, a subscriber who acted as their surveyor could not maintain an action for work done by him in that charac- ter, on account of the partnership, against all or any of the other subscribers. If there is no express stipulation as to the management of pannership property, the majority must decide as to the disposition and management of partnership concerns. Each partner is not only entitled to his proportion of the partnership estate, according in express agreement, or what he originally contributed, but he has a lien upon it for any sum of money advanced by him to, or owing to him from, the partnership. LIABILITY OF PARTNERS In general, it may be staled, that the acts of one partner in the way ot sale, purchase, promise, or agreement, when per- formed without collusion, and in violation of no public law, and in course of the partnership business, are binding on the whole firm. And this res- ponsibility of partners, for the acts of each other in the course of irade, cannot be limiied by any agreement, covenant or promise, in the articles by which the partnership is constituted. This principle is, however, subject to some qualification. Jf one partner can show a itixrluimfr, he will be relieved from responsibility. Or, if there be any particular speculation which he disapproves of, by giving distinct notice to those with whom his partners are about to contract, thai he will not, in any manner, be concerned in it, they cannot have any claim upon him, as proof of the notice would rehut his priiua.tacie liability. Neither is there any joint liabiliiy for the debt of uf partner, unless contracted in the course of the partnership concern. So, if the partnership effects are taken, and sold on an execution against one partner only, the sheriff is to pay over to the other partners a share of the produce proportioned to their shares in the partnership effects. Though a small share in the business renders the shareholder a general partner, and subjects him to the same responsibility as if he held a more considerable share, yet a share in a ship, the copyright of a book, or oiher specific abject, does not constitute a general partnership: and, therefore, the responsibility is limited to that particular object. The acis of one pa tner, in drawing bills of exchange, endorsing such as are payable to the firm, and making and endorsing promissory noies, when they concern the joint trade, bind the firm. But it is otherwise if they con- cern the acceptor only in a disjoint interest. A partner, a* such, cannot bind his co-partner by deed without express or implied authority. One partner may maintain an action for money received against the other partner, for money received to the separate use of the former, and wrongfully carried to the partnership account. One partner canno: sell, or mortgaje his undivided interest in a specific part of the property belonging to ihe partners. (11 N. H. 404.) Stage companies are liable as partners. When money is lent to part of the members of a firm, who give a note for it in their own names only, the lender is not a creditor of the firm, al- though the borrowers apply the money towards payment of debts of the firm/ (8 Met. 411.) DISSOLUTION OF PARTNERSHIP. By the. death of one partner the part- nership is dissolved unless there is mi express agreement for the iraimnis- sion of an interest in the business to the deceased partner's family, or for the continuation of i' by his executor or administrator ; or by will the coniinu- ance i.s provided for; ami in miking this provision, the whole estate, or all that portion of it already embarked, may be bound. Where the partnership is s;, confess judgment in favor of the holder of this obligation, for the above sum, interest and costs, with release of errors, &c. Witness my hand and seal, this day of , one thousand eight hundreo. and . A. B. [L. s.J Seeded and delivered in presence of The difference between a sealed note, and one without a seal is, that the former is not barred by the statute of limitation. 84 HOTEL AND BOARDING-HOUSE-KEEPERS. zance shall be produced and delivered to the clerk, and shall be filed and preserved by him, in like manner as is done with bonds, or other evidences of debt, upon which judgment is rendered, and the clerk shall com- pute the amount due on the recognizance, deducting the payments, if any, that shall have been made and indorsed thereon, and shall issue execution for the sum then due, which shall be directed and served like an execution issued on a judgment. Recording recognizance. A recognizance for debt may be taken before a justice of the peace, with like effect, excepting that execution issuing thereon cannot be levied on land. If the creditor wishes to levy the execution on land, he may have this recognizance re- corded in the office of the clerk of the court, within ninety days from the date, and the clerk may issue execution to be levied on lands, which the justice of the peace is not authorized to do. Effects and remedies. In its effects and in the re- medies for any wrongful proceeding under it, an ac- knowledgment is like an ordinary judgment of court, except that an execution may issue at any time within three years from the time therein set for payment, or within three years from the time of a payment made and thereon indorsed. Fees of the clerk and justice. The fee to the clerk or justice of the peace, for taking and recording an acknowledgment is fifty cents ; to the clerk for re- cording a recognizance, taken before a justice of the peace, twenty-five cents. EIGHTS AND LIABILITIES OF HOTEL AND BOAEDING- HOUSE-KEEPERS. EVERY person who makes it his business to entertain travellers and passengers, and provide lodging and ne- cessaries for them and their horses, and attendants, is a common innkeeper; and it is in no way material whether he has a sign before his door or not.* The Revised Statutes of Massachusetts require that innkeepers be licensed, either by the Mayor and Aldermen of cities, or by County Com- missioners. He shall have a sign affixed on or near his house, with his HOTEL AND BOARDING-HOUSE-KEEPEUS. 85 Every innkeeper is bound to receive all guests who apply, and tender, or are able and ready to pay the customary hire, and are not drunk or disorderly, or la- boring under contagious or infectious diseases. He has no right to say to one, you shall come into my inn, and to another, you shall not, as every one coming and conducting himself in a proper manner, has a right to be received. If the innkeeper neglects or refuses so to do, he is liable to an action for the recovery of any damages that may have been sustained by reason of such refusal. But he has at all times the right to demand payment before consenting. The length of time that a man is at an inn makes no difference, whether he stays a week, or a month, or longer; so, always, that though not strictly transiens, he retains his character as a traveller. He must accommodate his guests with board and convenient lodging rooms; and take suitable care of their goods and baggage ; and supply all reasonable wants and requests at a fair rate of compensation. The guests must conform to the reasonable rules and regu- lations of the house, and if a person is disorderly, the innkeeper may eject him from the house All that is required of the innkeeper is to furnish reasonable and proper accommodation for his guests ; and if he tender such accommodation, and the guest refuses it, he may compel the latter to quit the inn, and seek for accom- modation and lodging elsewhere. An innkeeper is chargeable for the loss of the goods of his guest, committed to his care; unless the loss is caused by the act of God, or of the common enemy, or by the neglect or fault of the guest. It is not necessary that the goods should have been in the special keeping of the innkeeper, in order to make him liable; if they are in the inn, that is sufficient to charge him ; and it makes no difference, that the goods were in the guest's name and employment, or forff.it twenty dollars. And he shall at all times be furnished with suitable provisions and lodgings, for strangers and travellers, and with stable room, hay and povender, for their horses and cattle. If he shall, when requesied, refuse to receive and make suitable provision for strangers and travellers, their horses and cattle, he shall be punished by a fine not exceeding fifty dollars, and by order of court, be deprived of his license. He shall not suffer any gaming in or about his premises, on pain of forfeiting ten dollars for every offence. L. T. 8 86 HOTEL AND BOARDING-HOUSE-KEEPERS. chamber, the key to which had been delivered to the guest by the landlord ; and in such a case, the landlord has been held liable, where the guest left the chamber door open. But if the landlord directs his guest to place his baggage or goods in a certain place, or he will not be responsible for them, and the guest fails to do so, the landlord will not be liable for them. If a horse, chaise and harness are delivered to an innkeeper, and he receives no separate compensation for keeping the chaise and harness, he is nevertheless liable for the loss of them ; for the payment for keep- ing the horse, includes a compensation for keeping the chaise and harness. If a person commits his horse to an innkeeper to be fed, he is a guest, although he do not himself lodge or receive any refreshment at the inn. If an innkeeper, being also a keeper of a livery stable, receives a horse to be fed, without giving no- tice that he receives it as keeper of the livery stable, he will be answerable as innkeeper for the loss of it. As the law imposes upon the common innkeeper the burden of receiving and taking care of the goods and baggage of all travellers and guests who alight at and take up their abode within the inn, it gives him a right to retain such goods and baggage, as a pledge for the payment of the reckoning of the guest. If a horse is put up in the stable of the inn by a guest, the innkeeper has a lien on the animal for its keep, whether the horse be the property of the guest, or of some third party, from whom it has been fraudu- lently taken, or stolen, unless the innkeeper knew at the time he received the guest that he was not the true owner of the horse. An innkeeper is responsible if a carriage of a travel- ler containing goods, be deposited in a place designated by the servant of the innkeeper, although such place be an open, unenclosed place near the highway. Boarding-House-keepers are not liable to the same extent as innkeepers ; they are only bound to take such persons as they please. They must furnish suitable accommodations for their boarders, and pro- vide for their reasonable wants. Their apartments must be clean and free from bugs, &c. They are not LEGAL EIGHTS OF MARRIED WOMEN. 87 liable to the same extent as innkeepers, for the loss of the goods of their boarders ; but they must exercise ordinary diligence for its safety. If a man comes to an inn under a special contract for his bed and board, and sojourn at an inn, he is not in the sense of the law a guest, but a boarder. If, there- fore, he is robbed in the house, he cannot charge the landlord as an innkeeper, but as an ordinary lodging house-keeper. LEGAL EIGHTS OF MARRIED WOMEN. (Laws, 1842, '44, '45, '46.) Contract before marriage that wife shall retain her property. The parties to an intended marriage may, before marriage, contract that the wife shall hold her estate, or any part thereof, which is hers at the time of the marriage, to her separate use, free from the. control of her husband. Such contract must contain a sche- dule of the property to be secured to the wife, and both must be recorded, either before the marriage, or within ninety days thereafter, in the registry of deeds for the county in which the husband resides at the time, or, if he be not a resident of the Commonwealth, then, in the county in which the wife resides at the time, if such record be made before marriage, or in which she last resided, or if made after marriage; and if not so recorded, said contract shall be void. Married woman may receive property by will or deed to her separate use. A married woman may receive a conveyance, devise or bequest of any estate, to be held by her, without the intervention of a trustee, to her sole and separate use, free from the interference or control of her husband. But such grant or conveyance must, within ninety days from the delivery thereof, be record- ed in the registry of deeds for the county in which the husband resides at the time of such delivery ; or, if he be not a resident of this Commonwealth, for the county in which the grantor shall then reside; otherwise, the property may be seized by the creditors of the husband.* * See forms of deeds for conveyance of property to married women in " Business Man's Assistant." 88 LEGAL RIGHTS OF MARRIED WOMEN. Married woman, how may sue and be sued in regard to her separate property. Whenever any property shall be secured to the sole and separate use of a married woman, as above, such woman shall, in respect to such property, have the same rights and powers, and be entitled to the same remedies, in her own name, at law and in equity, and be liable to be sued at law and in equity upon any contract by her made, or any wrong by her done, in respect to such property, and also upon any contract by her made or wrong by her done before her marriage, in the same manner and with the same effect as if she were unmarried ; and such property may be attached, or taken in execution in any such suit. Right of husband to convey to wife, - leaving a copy, 30 cents ; and' if served on more than one defendant, 30 cents for eacli defendant. For the service of a capias,* or of an attachment with summons, 30 cents for each defendant on whom it is served, and if the officer, by the direction of the plainliffor his attorney, shall make a special service of such writ, either by attaching properly, or arresting the body, he shall be entitled to 50 cents for each defendant on whom the writ is so served. For a copy of any precept,* when required by law, or when furnished to any pany at his requesi, at the rate of 12 cents a page. For taking bail, and furnishing and writing tbe bail bond, 20 cents, to be paid by the defendant, and taxed in his bill of costs, if he shall prevail. For serving a warrant,* 30 cent.-" for each person on whom it is served. Summoning witnesses, either iu civil or criminal cases > 10 cents for each witness, and in criminal cases, the court may, under special circumstances, allow such further sum as they shall judge reasonable. Dispersing venires for jurors, treasurers' warrants, and proclamations of an kinds, eight cents each, without any allowance for travel. Serving executions in personal actions, and collecting damages er costs on any execution, warrant of distress or other like^ccess, for any sum not exceeding 100 dollars, 4 cents for every dolla^lBT above 100 dollars, and not exceeding 200 dollars, 2 cents for every dollar: and for all above 200 dollars, 1 cent for every dollar. Serving a writ of seizin* or possession in real actions, 1 dollar and 10 Cents, and if served on more than one piece of land, 75 cents for each piece after the first. Serving an execution upon a judgment for partition, or for assignment of dower, 1 dollar a day. Travel for the service of all original writs, executions, warrants, subpanas. and other like processes, 4 cents a mile, to be computed from the place of ser- vice to the court, or place of return ; only one travel to be allowed for the service of any one precept, and if the same precept be served on more than one person, the travel shall be computed from the most remote place of service, whh such further travel as may have been necessary in serving it. If the distance from the place of service to the place of return shall exceed fifty milt-s, only 1 cent a mile shall be allowed for all travel exceeding that distance. Whilst attending any court of record, or at any meeting of the county commissioners, 3 dollars a day, 10 be paid om of the county treasury ; and in every county, where there is more than one shire town, the lees shall be 4 dollars a day, except at the court or meeting, held iu the lown nearest the residence of the sheriff, or in which he resides. * Scire Facias is a writ to revive judgment, and demanding of the de- fendant why execution should not issue on it. Capias is a writ authorizing the defendant's arrest. Precept is a command or order in writing. Warrant is a precept authorizing the seizure of an ofTender t &c. Seizin is a writ for taking possession of Real Estate. Certiorari is a writ directing the proceedings or record; of a cause to be brought before a higher court, Citation is a summons to appear. Declaration (in a writ) is a shewing, in writin?, of the cause of the complaint of the plaintiff, in an nction against the defendant, wherein the pany is supposed to have received some wrong. Default is commonly taken for non-appearance at a day assigned. The Statutes require that the original writ, in all civil actions, shall be a Summons, or a Capias and Attachment* The Original Summons docs not attach properly, but simply directs the officer to summon the defendant to appear. The Capias, and Capias and Attachment are precisely the same in form, the precept being " to atlach the goods and estate of the defendant, and for want thereof, to take the body." . Sealed writs can be obtained of the clerk of the Juslices Court in Bos- ton, and in oilier places of Juslices of the Peace, or of the Clerks of the Court of Common Pleas, for 17 cents a copy. Where blank copies are required, they may be obtained of stationers for about 2 cents a copy. The Statute allows the justice of the peace or attorney 50 cents for tho Declaration (or filling out.) 104 FEES OF CONSTABLES, JURORS, WITNESSES, &C. To every deputy sheriff, who shall attend said courts or meetings by their order, 2 dollars a day, to be paid in the manner aforesaid. And no sheriff, deputy sheriff, coroner or constable, shall be entitled to any fees for attendance as a witness in any criminal case, whilst he is paid for attending as an officer of the same court, or on the same examination or trial. To the sheriff, for returning the votes for governor, lieutenant governor, counsellors and senators, to the secretary's office, 12 cents a mile, to be computed from the place of his abode to the secretary's office, and to be paid out of i he treasury of the Commonwealth, and only one travel shall be allowed for the whole. CONSTABLE'S FEES. For all services performed by them, the same fees as are allowed to sheriffs for the like services, unless when other provision is expressly made therefor. For attending any court of record, by order of the court, and for any ser- vices performed there, the same fees as are allowed to deputy sheriffs, in like cases. For serving a venire, 25 cents, and for travel to the place of return, at the rate ol"4 cents a mite, to be paid out < if the county treasury. For summoning "tl^^urors upon a coroner's inquest, and attendance thereon, at the rate of 90 cents a day, to be paid out of the county treasury. For citing creditor to appear at debtor's examination, 30 cents. All travelling fees and fees for the service of writs or precepts, of which the sheriff or other officer is required to make a return, shall be indorsed oa the writ, or they shall not be allowed. (R. S., c. 122, 9.) FEES OF JURORS, WITNESSES, APPRAISERS, COMMISSION- ERS AND OTHERS. To each person attending as a grand juror or traverse juror, in any court, 1 dollar and 75 cents a day for his attendance, and 8 cents a mile for his travel out and home ; and to each person attending as a juror, before a sheriff, or coroner, or on any other occasion prescribed by law, 1 dollar and 25 cents a day for his attendance, and 6 cents a mile for his travel out and home. To each person, attending as a witness, in any civil or criminal cause, in the supreme judicial court, court of common pleas, or municipal court of the city of Boston, or before county commissioners, and juries for assess- ment of damages, in certain cases, 1 dollar a day, and for his attendance before a justice of the peace, or before referees or arbitrators, or on any other occasion, 50 cents a day, ami in all cases 4 cents a mile for his travel out and home ; and the witness shall certify in writing the amount of his travel and attendance.* To all appraisers of the estate of deceased persons, appraisers of real estate taken in execution, persons appointed under any legal process for assigning dower, or for making partition of real estates, sheriffs' aid in criminal cases, and all other private persons, performing any like service required by law, or in the execution of any le^al process, when no express provision is made for the compensation therefor,] dollar a day each for their services, and 4 cents a mile for travel out and home. FEES FOR MARRIAGES. To the town clerk, for publishing the banns of matrimony, recording the same, giving a certificate thereof, and recording the marriage upon re- ceiving the minister's or justice's certificate thereof, 50 cents, to be paid on delivering the certificate of publishing the banns. To every minister or justice of the peace, who shall lawfully solemnize a marriage, and certify the same, 1 dollar and 25 cents. * Witnesses are not obliged to attend unless fees are tendered to them. FEES OF REGISTERS OF DEEDS fc NOTARIES PUBLIC. 105 TOWN CLERK S FEES. For recording births and deaths, 8 cents each. For a certificate of a birth or death, 10 cents. For copies of town records, and other documents, furnished to any per- son at his request, if containing less than one page, 10 cents, and if con- taining more, at the rate of 12 cents a page. FEES IN THE OFFICE OF THE SECRETARY OF STATE. For a copy of any resolve or order of the general court, or of the gover- nor and council, of a private or local nature, furnished to any private person, 60 cents. For copies of all other papers so furnished, at the rate of 12 cents a page. The secretary shall keep an account of all fees received by him, and shall exhibit a quarterly return thereof, under oath, to the governor arid council ; and the amount so received shall be deducted from his salary, and [a] warrant shall be issued for the balance. FEES OF THE REGISTER OF DEEDS. For entering and recording a deed, or other paper, anJrtifying the same , at the rate For entering and recording a deed, or other paper, anJ on the original, 17 cents, and if it contain more thfl^^V, of 14 cents, for every page, after the first j the saioH^Fto be paid, when the instrument is left to be recorded. For all copies, at the rate of 14 cents a page. (A page contains 224 words.) For entering in the margin a discharge of a mortgage, 12 cents. Every Register of Deeds shall keep a book, and shall enter therein all deeds and other instruments leflio be recorded, in the order in which they are received, noting the day, hour and minute of reception, and other par- ticulars, and every instrument shall be considered as recorded at the lime so noted. Registers of Deeds are required to make yearly returns to the Secretary of the Commonwealth of the whole number of deeds and other instruments recorded by them, the whole amount of fees received by them for record- ing the same ; the amount paid into the treasury of the coumy ; the number of legal pages covered by the registry of said deeds and oilier instruments, and the expenses of their respective offices, over and above what is paid by the county. (Laws 1836, c. 241.) The penalty for neglect of registers of deeds to make returns is fifty dollars (Ib. 1847, c. 282.) Every register of deeds is required to keep two sets of indexes, and he shall, within twenty-four hours after any deed or instrument, (which he is by law required to record, shall have been left for record,) cause the name of each and every grantor, grantee, or other party, to be entered at length and alphabetically in its appropriate index, &c. ( lb. 1845, c. 205. He is also required to record, in a fair and legible handwriting, all deeds and other instruments, in successive lines, upon the pages of the record book ; and interlineations and erasures must be noted before attest- ation by register. (Ib. 1844, c. 104.) [Note. It is here proper lo stale the fact, not generally known, that since the enactment of the law establishing the fees of the Registers of Deeds in this Commonwealth, certain additional duties have, atihe different sessions of the Legislature, been imposed upon and required of them, for which no compensation has been provided, and for which, of course, no person will object to paying a reasonable additional charge.] FEES OF NOTARIES PUBLIC. The fees of notaries public, for the services hereafter specified, shall be as follows, to wit : for every protest for the non-acceptance or nun-pay- ment of a bill of exchange, order, draft, or check, the amount whereof is five hundred dollars, or upwards, or for the non-payment of a promissory note for the like amount, 1 dollar ; for recording the same, 50 cents; for every protest for the non-acceptance or non-payment of a bill of exchange, order, draft, or check, the amount whereof is less than five hundred dol- 106 REQUIREMENTS OF PUBLIC OFFICERS. APPENDIX. lars, or for the non-payment of a promissory note for the like amount, 50 cents ; for recording the same, 50 cents ; for noting the non-acceptance or non-payment of a bill of exchange, order, draft, or check, or the non-pay- ment of a promissory note, 75 cents ; for each notice of the non-acceptance or non-payment of any bill, order, draft, check, or note, given to any party liable for the payment thereof, 25 cents : provided, that ihe whole cost of protest, including all necessary notices, and the record thereof, when the bill, order, draft, check, or note is of the amount of five hundred dollars or upwards, shall in no case exceed 2 dollars ; and when the amount thereof is less than five hundred dollars, the whole cost shall not exceed 1 dollar and SO cents ; and the whole cost of noting, including recording and all notices, shall in no case exceed 1 dollar and 25 cents. (Laws 1S39, c. 93.) REQUIREMENTS OF PUBLIC OFFICERS, AND PENALTY FOR EXTORTION. Each one of the officers before mentioned, who keeps a public office, shall always keep hung up in some conspicuous and convenient place in his office, a printed or written list of the fees, so far as they relate to him. Every officer, ujxm receiving any fees for any official duty or service, shall, if required JJby^ person paying the same, make out in writing a particular accoui^^^Kich fees, specifying for \vhat they respectively accrued ; and if hW^Mrses or neglects so to do, he shall forfeit, to the party paying the fees, three times the amount so paid, to be.recovered in an action on the case. If any officer shall wilfully and corruptly demand and receive, for any official duly or service, any greater fee than is allowed by law, he shall forfeit thirty dollars for every such offence, which sum may be recovered for the use of the Commonwealth, on indictment in any <-ourt proper to try the same, or it may be recovered in an action of debt, for the use of any person ivho shall sue therefor ; but no such indictment or action shall be commenced, unless within one year after the committing of the offence. All fees and costs, for services and proceedings in the municipal court of the city of Boston, shall be the same, as are prescribed, in like cases, in the court of common pleas ; and all such fees and costs, in any police court, or other court exercising the jurisdiction of a justice of the peace, shall be the same as are prescribed in like cases before justices of the peace. In all cases, not expressly provided for by law, the fees of all public officers, for any official duty or service, shall be at the same rate as those prescribed in this chapter for the like services. The word " page," when used as the measure of computation, shall mean two hundred and twenty-four words. (Revised Statutes, c. 122.) APPENDIX. The following RATES OF COMPENSATION were adopt- ed a few years ago by the Suffolk Bar, and though not at present obligatory, are still adhered to by many Attorneys. The charges differ, in some instances, from the Statute fees, which can be seen by referring to the article on Taxation of Costs, and the " Legal Fees of Attorneys, and other law officers." APPENDIX. ATTORNEY'S FEES. 107 We, the subscribers, members of the bar in the county of Suffolk, estab- lish the following rates of compensation and fees as the lowest which we can reasonably and honorably receive ; and we bind ourselves not to re- ceive less fees or compensation than are herein expressed, nor any com- mutation or substitute therefor, viz. Atlw.t or consultation. For advising, when the property in dispute ex- ceeds 100 dollars, and does not exceed 500 dollars, not less than $4 ; for ad- vising when the property exceeds 500 dollars, not less than $5. . Drafting of legal instrumtnts. The compensations in these cases do not admit of any precise rule. The service to be compensated is compounded of professional advice and knowledge, and the labor of applying them in writing to each particular case. Letters before suit. For a letter demanding payment, under 500 dollars, $2 ; above 500 dollars, $3. Writs, $c. advising and commencing the action. Where the demand or cause of action does not exceed 100 dollars, $3 ; where the demand orcause of action exceeds JOO dollars, and not 500 dollars, $4 ; where the demand or cause of action exceeds 500 dollars, $5. Trustee Proress, advising, c. One dollar in addition to each of the sums chargeable as above for common writs, that is, four^^^L and six dollars, instead of three, four and five. These charges are to be made when the action ia^^^Bnjefore entry, and are to be paid together with the sheriff's fees. In addition to these charges, the plaintiff's attorney or counsellor will charge his fees for advice, if the case be such as to authorize such charge to the plainiiff. Court of Common Pleas. For plaint! fs counsel or attorney. If he prevails, the counsel or attorney is to charge the plaintiff with the bill of cosls, and give him credit for it, if it be received from the defendant, or on execuiion. He is also to charge the fees for arguing the cause, if argued either to the court or jury. If the plaintiff does not prevail in the suit, his counsel or attorney is to charge the writ according to the rates before slated, and all sums of money paid lor the plaintiff in carrying on the suit. He is also to charge a term fee for each term. In cases not exceeding 100 dollars, *3 ; exceeding 100 dol- lars and not exceeding 500 dollars. $4 ; exceeding 500 dollars, $5. If the cause be argued to the court or jury, the arguing fee is to be charg- ed for the term at which the argument look place, instead of the term fee. In cases where several actions are brought on one and the same title, or on the same policy of assurance, or other like cases, in which all are gov- erned by the decision of one, or more, eilher term fees or half term fees may be charged at discretion, in such actions as are not tried or argued. For defendant's counsel or attorney. Where the defendant prevails, his counsel or attorney is to charge the bill of costs recovered against the plain- tiff, and in addition thereto, term fees as before stated, excepting the term when the cause is argued to the court or jury, when the arguing fee is to be charged instead of a term fee. But when ihe costs cannot be obtained of the plaintiff, the defendant's counsel may charge eilher the bill of costs and arguing fee only, or the term fees and arguing fee only, at his option. If the defendant does not prevail, his counsel or attorney is to charge him term fees, as aforesaid, for each term. If the cause be argued, the arguing fee is to be substituted for the term fee at the term when the argument is had. For arguing a case in the common pleas, not less than $10 ; for trustee's answer, &c., where be has no effects, $3 : where he has effects exceeding 100 dollars, *5 ; for a surrender of principal by bail, &c., $5. Supreme Judicial Court. Far plaintiff's counsel or attorney. When the pi ai miff prevails, the counselor attorney is to charge ihe bills of cosls in the court of common pleas, and in the supreme court, and fees of arguing to the coun or jury, or both, as the case may be. 108 APPENDIX. ATTORNEYS FEES. louoie me amount cimrgeame in ine couri 01 common pieas. When the costs cannot be obtained from the plaintiff, the defendant's :ounsel may charge the bill of costs and arguing fee only, or the term fees tnd arguing fees only, at his discretion. arbitrations, and in references entered into in th rules. After the term when a cause is referred, and before the lerm when the report is made, the counsel or attorney of the plaintiff, and the counsel or the attorney of the defendant, shall charge half term fees only. o, a . Where money is collected for a client, who lives out of the Common- wealth, a commission of three per cent, shall be charged to him upon the amount received. When the plaintiff cannot obtain any benefit from his suit, the counsel or attorney may charge the bill of costs only. These rules are intended to establish the lowest compensation, and not to restrict gentlemen from taking higher compensation in cases of difficulty or magnitude ; and these rules are not to apply to cases not exceeding twenty dollars. 000 606 506 ONE OF THE MOST USEFUL BOO^ , .. CLERK, AND FARMER, EVER PRINTED. THE BUSINESS MAN'S ASSISTANT: By the Author of the "Landlord's and Tenant's Assistant, "Laws of the Sea," " Shipper's and Carrier's Assistant, and Insurer's Guide." [54th Edition, revised and improved.] THIS Work contains Forms and Rules of Law for all the various Instruments in common Business Transactions, and will enable a man of common sense to^ make out his Contracts, Assignments, Bonds, Deeds, Mortgages, Releases, S Petitions, &c., without the aid of an attorney. It also contains an Abstract oP the U. S. Patent Laws, with Instructions, Petitions, Specifications, Improve- 's ments, Assignments, Surrenders, Caveats, Fees; Contracts and Specifica- S tions for constructing Railroads, and numerous valuable and useful Tables, &c. &c. Price 25 Cents. The undersigned having examined the " BUSINESS MAN'S As valuable auxiliary in Business Transact^ " Josiah Bradlee & Co., Hawes, Gray & Co., Joshua Sears, Henshaw, Ward &- Co.. Hallett & Blake. Fisher & Co., Hinkly & Drury, Samuel Greele, Smith & Lougec, IANT/' find it, to be a Coolidge & Haskell, Ammidown, Bowman & Co Wetherell, Cragin & Co.. J. C. & W. H. Hicks, Chas. Bartlett, Barnabas Davis, M. P. Wilder, Jr. Thos. G. Lobdell, ^^B^'ell, Seavcr & Co., John S. Ty | TllEi Tyler, John A. Ferris, Ewd. D. Petei* & Co., Hunting & Tufts, J.W. Blake, Win. H. Prentice &. Sons, Horton, Cordis & Co., J. T. Hay ward &. Co., From the Boston Cultivator. " This little work is of great value. It contains forms and rules for all the various instruments and documents in common business transactions, and , ) will enable a man of common sense to attend to business of this kind without the aid of an attorney. Besides its serving- as a valuable guid^, it is equally valuable as a prompter, showing what the laws require, which will sometimes save a man hundreds or thousands of dollars, as many are not aware of legal requirements, and lose much for want of a timely hint." THE LANDLORD'S & TENANT'S ASSISTANT, [In this Sixth, and improved edition, will be found the Rights, Duties, and Liabilities of Landlords and Tenants, with Directions and Special Covenants for both, in relation ) to Tenancies, Repairs, Water, Fixtures, &c., Ice., never before published.] THIS is truly what it purports to be, a Landlord's and Tenant's Assistant ; and ought to be in the hands of all who let or hire real estate. We doubt, if there is a landlord or tenant who has not, from sheer ignorance of his rights its this book shows them to him, lost money enough to buy a thousand copies. It ulso furnishes the Rules of Law in relation to Division Fences Partition Walla Jlncicnt Lights Highways Private Ways, Sfc. fyc. ; and 'forms- for Leases of Rooms, Houses, Farms, Assignments, Notices to Quit, T&c. Sac. Price 25 Cents. Tke undersigned having examined the work entitled " THE LANDLORD'S AND TENANT'S ASSISTANT," recommend it to Landlords and Tenants as a work ivcll adapted to their wants, and which will save them much trouble and litigation : John S. Tyler, Ins. Broker, T. J. Lobdell, Broker, S. G. Williams, do. H. L. Stone, Commission Merchant, Benjamin Bangs, Merchant Elipnalet Baker, do., Leonard Foster, Esquire, Hinkly & Drury, Builders, S. & J. Guild & Co., Robins & Allen, Auctionrs. Adin Hall, Real Estate Broker, H. Dawes, do., Samuel Coverley, do. Aaron Dow, do., Brackett & Rowe, do., John Hammond, do., Chas. M'Intier, do., Thomas P. Hawkes, do., Pearmain & Hall, do., Win. B.May, do., David Holbrook, do., Samuel Rice, do. [See "2d and kthpages of cover. LAWS OF THE SEA: Captain ol Seaman, Fisherman or Coaster, should go to sea without this book.] ftl -'irance Company : u Mr j;, , JS _/v, &>: 1 have examined your publication entitled Laws of the s-e,., < nndi appears to me to contain a fair statement ot tl ard 10 the sn^ectt oT which '' illttaustlie more valuable for the reftitnct* lot,,' ;,i it u fomuiccl ' must remark however that 1 do not co . ' of lls merits gener- ' allv but ''f>w, I think very N ipmaster, anu that J its general distribution will do much ' ' ij '. Jos From Rev. KDWAUU T. TAYLOK, teaman's Preacher, Boston. - ' As far as 1 have read. I fully concur with the above recommendation. lliD \V A.KU 1 J A I liUB- "la? H \dam= President Tf.iWm.B. Coffin, Merchant, .Lewis &Clapp, Merchants, En"and Marine tas. Co., llenrv G. Andrews, do., Bakei & Morrtfl, . .>., CaSjohn Wil c4t?WJn.C.Bal ^^JSEP*"' i^^ter's .Marine Ins. Co. i S. Tyler. Ins. Broker. ^S!^'" JohuR.uJ'wi'cu; to:- :ckrebS.-Caner,-Marn,el,,. S A . S. i W. G. Lewis, do. ! J. Bowker, Jr., Merchant, surance Agent. ipt \viii u. uarsiow^j ITCM iun. mu KastB Captain Asa Frisbec, Lombard & Hall. M i> !ain Elijah Crosby, Howes &Cro .tain Bai' ' From lice I'niNKVS STOWL. Xrama.n'x Preacher, Boston. : v lr Bl ., me much pleasure to give my testimony m f; ' the verv vah able work "prepared bv yon, entitled ' LHWS of the Sea.' The friends of sea- DiT^U nmrec&e vo.r noble obiecl, and so No seaiMii should be ' whl ou ht P U,ol It will prove a neater Messina to him, I p.esume, than the gold mines Sifornia. Many dispuJes may be pre. e wing the directioiw ol this work. ' From !{<< I 1' KOUINSON. Missionary to Seamen in the Port of Bi Mr I R Him- ' v " ur !inle . book, ' Laws of the 'Sea,' . nination I have been able o give n. il.at it will prove a valu- k for every seaman. With the ' Lav, each seaman fof isewi Know what hi ' ru ?P ecl thc j rightl i -paid ) from any part of -, ' .ue, .-free of any charge ,. '.iedouihere. . : -l' : " d : . . , c ... Al Ww fa ' r: Deutists, Turners, and I ",rn- Silver. -never before published. ,,..-, BOOK AGFM ' se works ; Capable Agent fil discount made to those who lity to sett a gam. , and Finish-